Citation Nr: 21010292 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 18-43 717 DATE: February 24, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to a service-connected back disability, and obesity as an intermediate step, is remanded. Entitlement to service connection for hypothyroidism, to include as secondary to a service-connected back disability, and obesity as an intermediate step, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2001 to February 2005. These matters come to the Board of Veterans’ Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In December 2017, the AOJ issued a rating decision that denied the Veteran’s claims for service connection for sleep apnea, hypothyroidism, and posttraumatic stress disorder (PTSD). The Veteran timely disagreed in a March 2018 Notice of Disagreement (NOD). In August 2018, the AOJ issued a Statement of the Case (SOC) that informed the Veteran it had readjudicated his claims and granted service-connection for PTSD. But his sleep apnea and hypothyroidism claims were denied. The Veteran perfected his appeal in a September 2018 VA Form 9, wherein he limited the scope of his appeal to sleep apnea and hypothyroidism. Thus, those are the only issues before the Board. In October 2018, the Veteran’s case was received at the Board. Then, in July 2020, a Board hearing was conducted. The hearing transcript has been associated with the Veteran’s file. 1. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected back disability, and obesity as an intermediate step, is remanded. The Veteran contends his obstructive sleep apnea is secondary to his service-connected back disability. See Transcript dated July 2020 at 3. Although the Board regrets the delay, the Veteran’s claim must be remanded for a medical opinion before the Board is able to decide on the merits. This is because there is no medical opinion in the record that addresses whether the Veteran’s sleep apnea is related to his service. Nor, whether it is secondary to his service-connected back disability. The VA has a duty to assist claimants and must make “reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for benefits.” 38 U.S.C. § 5103A(a)(1). And part of that duty to assist includes obtaining a medical opinion when an “opinion is necessary to make a decision on the claim.” 38 U.S.C. § 5103A(d)(1). The VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease, occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Although obesity is not a disability itself for VA purposes, it can serve as a link in the chain to establish service connection for another disability. According to VA General Counsel Precedent Opinion (VAOPGCPREC) 1-2017, entitlement to service connection on a secondary basis may be established where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability. Walsh v. Wilkie, 32 Vet. App. 300 (2020). The opinion provides that obesity may be an “intermediate step” between a service-connected disability and a disability that is not service-connected. See VAOPGCPREC 1-2017 at 2. Obesity is referred to as an excess amount of body fat as determined by height and weight. Id. VA General Counsel Precedent Opinion 1-2017 also notes that adjudicators would have to use the following framework: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. See VAOPGCPREC at 9. Although the opinion does not discuss aggravation, the Board must consider aggravation in this context when the theory is explicitly raised by the Veteran or reasonably raised by the record. Walsh, 32 Vet. App. at 307. The record shows the Veteran is service-connected for five disabilities: (1) degenerative disc disease with lumbosacral strain, (2) PTSD, (3) flat feet condition with plantar fascitis, and radiculopathy, (4) left and (5) right lower extremities. During the Veteran’s July 2020 Board hearing, explicitly raised the argument that obesity is an intermediate step between his service-connected back disability and sleep apnea. He argued his back disability interferes with his ability to exercise, and by extension, proximately caused or aggravated his sleep apnea. See Transcript dated July 2020 at 3. He added that, before his back disability interfered with his ability to exercise, he was around 200 pounds; when his back disability kept him from exercising, he started gaining weight and is now over 235 pounds. Id. at 3-4. He also argued the medications used to treat one, or more, of his service-connected disabilities led to his obesity, and by extension, proximately caused or aggravated his diagnosed hypothyroidism. Id. at 6. In support of his claim, his representative referred to (unspecified) medical literature that said hypothyroidism does not cause a large weight gain. Id. She contended that obesity may have affected the Veteran’s thyroids and caused hypothyroidism. Id. at 8. The record reflects that Veteran is obese and having difficulty losing weight. This is, at least, in part due to back pains. See December 2020 Private Medical Record by JA.E., MD. Turning to the Veteran’s claim for disability compensation, his lay observations and statements are competent to report whether symptoms, like pain have interfered with his ability to exercise. Layno v. Brown, 6 Vet. App. 465, 467-70 (1994). But he is not competent to report an etiological link between his subsequent weight gain and sleep apnea. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Since there is no medical opinion in the record that considers the theory of secondary service connection with obesity as an intermediate step, nor a theory of direct service connection, the Veteran is entitled to a medical opinion that does. 38 U.S.C. § 5103A(d)(1). Accordingly, a remand is required for a medical opinion that addresses the Veteran’s entitlement to service connection on a direct and secondary basis. 2. Entitlement to service connection for hypothyroidism, to include as secondary to a service-connected back disability, and obesity as an intermediate step, is remanded. The Veteran contends his hypothyroidism is secondary to medications used to treat one of his service-connected disabilities. See Transcript dated July 2020 at 6. Although the Board regrets the delay, the Veteran’s claim must be remanded for a \ medical opinion before the Board is able to decide on the merits. This is because there is no medical opinion in the record that addresses whether the Veteran’s hypothyroidism is related to his service. Nor, whether it is secondary to medications used to treat one of his service-connected disabilities. Turning to the Veteran’s claim for disability compensation, even though he is competent to report noticeable weight gain, he is not qualified to opine on an etiological link between weight gain and his medications. Jandreau, 492 F.3d at 1377. Nor is there a medical opinion in the record that considers a link between obesity and his medications. Nor is there a medical opinion that addresses the theory of direct service connection. So, the Veteran is entitled to a medical opinion that does. 38 U.S.C. § 5103A(d)(1). Accordingly, a remand is required for a medical opinion that addresses the Veteran’s entitlement to service connection on a direct basis and secondary basis. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination or examinations to determine the nature and etiology of his diagnosed obstructive sleep apnea. The examiner must review the claims file. Because the Veteran claims that a service-connected disability caused him to develop obesity and obesity has also been linked to current symptoms of his diagnosed obstructive sleep apnea, it may be necessary to obtain two opinions: (1) from a psychologist or psychiatrist concerning the issue of whether his PTSD caused or aggravated his obesity and (2) another from a qualified medical professional concerning the separate questions concerning whether obesity caused or aggravated his obstructive sleep apnea (to include flat feet condition with plantar fascitis, arthritis and degenerative disc disease (DDD) with lumbosacral strain, and radiculopathy of the left and right lower extremities). The examiner or examiners should provide an opinion as to the following questions: a. Is it at least as likely as not (50 percent or greater probability) that one of the Veteran’s service-connected disabilities (including (1) PTSD, (2) flat feet condition with plantar fascitis, (3) arthritis and DDD with lumbosacral strain, and (4) radiculopathy of the left and right lower extremities) caused the Veteran to become obese (for example, by preventing regular exercise)? b. If so, is it at least as likely as not (50 percent or greater probability) that the Veteran’s obesity was a substantial factor in causing the Veteran’s obstructive sleep apnea? c. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea would not have occurred or would not have been aggravated beyond its natural progression without the obesity caused by a separate service-connected disability? d. Irrespective of the answers to questions (a) through (c), is it at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea is related to his service? The examiner, in coming to his or her conclusion, is asked to comment on the following: i. The Veteran’s July 2020 statement that his service-connected back disability interfered with his ability to exercise, which led to weight gain, and his later diagnosed obstructive sleep apnea. ii. His July statement that, prior to his receipt of a CPAP, he observed short-term memory loss, inability to concentrate, which affected his ability to work as a radar repairment for the Federal Aviation Administration (FAA). The record reflects the Veteran was issued a CPAP around June 25, 2018. iii. His October 2017 report that he was observing (1) chronic fatigue, (2) poor sleep quality, (3) awakening frequently, and a (4) need to nap regularly. 2. Schedule the Veteran for a VA examination or examinations to determine the nature and etiology of his diagnosed hypothyroidism. The examiner must review the claims file. Because the Veteran claims that medications used to treat a service-connected disability caused him to develop obesity and obesity has also been linked to current symptoms of his diagnosed hypothyroidism, the examiner is asked to provide medical opinions concerning the issue of whether (a) any of his medications caused his obesity and (b) if so, did his obesity caused or aggravate his hypothyroidism (his service-connected disabilities include flat feet condition with plantar fascitis, arthritis and degenerative disc disease (DDD) with lumbosacral strain, and radiculopathy of the left and right lower extremities). The examiner or examiners should provide an opinion as to the following questions: a. Is it at least as likely as not (50 percent or greater probability) that any of the medications used to treat the Veteran’s service-connected disabilities (including (1) PTSD, (2) flat feet condition with plantar fascitis, (3) arthritis and DDD with lumbosacral strain, and (4) radiculopathy of the left and right lower extremities) caused the Veteran to become obese (for example, by preventing regular exercise)? b. If so, is it at least as likely as not (50 percent or greater probability) that the Veteran’s obesity was a substantial factor in causing the Veteran’s hypothyroidism? c. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypothyroidism would not have occurred or would not have been aggravated beyond its natural progression without the obesity caused by the medications taken to treat a separate service-connected disability? d. Irrespective of the answers to questions (a) through (c), is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypothyroidism is related to his service? The examiner, in coming to his or her conclusion, is asked to comment on the following: i. Discuss the Veteran’s report that medical literature asserts that hypothyroidism does not cause a large weight gain. ii. Address the June 23, 2017, private medical record that notes the Veteran gained about 80 pounds over the last year. iii. Address the January 23, 2018, private medical record that notes the Veteran is exercising and made diet changes but has gained 10 pounds. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dean, Michael S. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.