Citation Nr: 21012177 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 07-28 898 DATE: March 3, 2021 REMANDED Entitlement to service connection for sleep apna to include as due to bilateral knee disability, is remanded. Entitlement to service connection for erectile dysfunction to include as due to bilateral knee disability, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1979 to March 1988. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision of an Agency of Original Jurisdiction (AOJ) of the U.S. Department of Veterans Affairs (VA). The matter was most recently before the Board in October 2020. The Board remanded the issue for additional development. The requested development has been completed and the matter is properly before the Board. The Board finds that there has been substantial compliance with the Board’s previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). 1. Entitlement to service connection for sleep apna to include as due to bilateral knee disability, is remanded. 2. Entitlement to service connection for erectile dysfunction to include as due to bilateral knee disability, is remanded. The Veteran contends that sleep apnea and erectile dysfunction are secondary to his service-connected bilateral knee condition. The record reveals that the Veteran has a current diagnosis of sleep apnea and erectile disfunction. These issues were remanded by the Board in October 2020 to obtain a new VA examination. The Veteran was afforded a post-remand VA examination in October 2020. The examiner provided a negative opinion that the Veteran’s erectile disfunction and sleep apnea was caused or aggravated as a result of his bilateral knee disability. See October 2020 VA examination. The examiner attributed both conditions to obesity. Id. In Garner v. Tran, No. 18-5865 Vet. App. (2021), the United States Court of Appeals for Veterans Claims (Court) observed that in January 2017, VA’s Office of General Counsel (OGC) issued a precedential opinion, finding that although obesity cannot be service connected on a direct basis, obesity may serve as an intermediate step between a service-connected disability and a condition claimed on a secondary basis. VAOPGCPREC 1-2017. To decide such claims, OGC stated the analysis involves addressing the following questions: (1) whether the service-connected disability caused the veteran to become obese; (2) if so, whether obesity, as a result of the service-connected disability, was a substantial factor in causing the claimed secondary disability; and (3) whether the claimed secondary disability would not have occurred but for obesity caused by the service-connected disability. Id. The Court acknowledged that the soundness of OGC’s guidance was endorsed in its decision in Walsh v. Wilkie, 32 Vet. App. 300, 305-07 (2020). However, the Court noted that neither OGC’s opinion nor Walsh provided guidance regarding what factual circumstances would give rise to claims for secondary service connection with this theory of entitlement. The Court provided the following non-exhaustive list of considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step: (1) mobility limitations or reduced physical activity as a result of a service-connected physical disability; (2) reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; (3) side effects of medication where the medication is prescribed for a service-connected disability; (4) treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; (5) lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and (6) statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability. The Court determined the critical commonality among the nonprecedential decisions was that “there is some evidence in the record which draws an association or suggests a relationship between the veteran’s obesity, or weight gain resulting in obesity, and a service-connected condition.” Therefore, the Court held that incidental references to the veteran’s weight or weight gain are insufficient to reasonably raise the theory of secondary service connection via obesity as an intermediate step. See Garner, supra. Here, the Board finds that the Veteran’s lay statements suggest mobility limitations or reduced physical activity as a result of his service-connected bilateral knee condition. As such, obesity as an intermediate step has been raised. Thus, an addendum opinion is needed to address the raised theory of obesity as an intermediate step for secondary service connection between the Veteran's service-connected bilateral knee condition, sleep apnea and erectile dysfunction prior to adjudicating this claim. 3. Entitlement to a total disability rating based on individual unemployability (TDIU), is remanded. The Board finds that the claim of entitlement to a TDIU is inextricably intertwined with the claims for service connection for sleep apnea and erectile dysfunction. All issues “inextricably intertwined” with the issue certified for appeal, are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). The issue of entitlement to a TDIU is intertwined with the service connection claim because a decision on the latter claim may have an impact on the former claim. Thus, the claim of entitlement to a TDIU must be remanded for the appropriate development, as well as contemporaneous adjudication. Id. Accordingly, the matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's bilateral knee condition and obesity, and whether obesity was a substantial factor in causing the secondary conditions claimed by the Veteran. 2. The examiner should opine whether it is at least as likely as not that (i) the Veteran's service-connected right or left knee disabilities caused him to become obese; (ii) such obesity was a substantial factor in causing his sleep apnea; and (iii) the current sleep apnea would not have occurred but for obesity caused by the service-connected knee disabilities. The examiner should consider all relevant lay and medical evidence. 3. The examiner should opine whether it is at least as likely as not that (i) the Veteran's service-connected right or left knee disabilities caused him to become obese; (ii) such obesity was a substantial factor in causing his erectile disfunction; and (iii) the current erectile dysfunction would not have occurred but for obesity caused by the service-connected knee disabilities. The examiner should consider all relevant lay and medical evidence. The examiner should explain the reasons behind any opinions and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. After accomplishing any additional development deemed appropriate, readjudicate the claims on appeal. If the benefits sought in connection with the claims remain denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and given the opportunity to respond and appropriate period should be allowed before the record is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, Associate Counsel 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.