Citation Nr: 21015723 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 10-18 831 DATE: March 18, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to the Veteran’s service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for residuals of a cholecystectomy (gallbladder disorder), to include as secondary to the Veteran’s service-connected hepatitis B disability, is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from September 1966 to May 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2013 and January 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). As it pertains to the gallbladder claim (residuals of a cholecystectomy), the Veteran was initially denied service connection in a January 1992 rating decision. Following the Veteran’s appeal, the Board denied the claim in May 1993. In August 2012, the Veteran sought to reopen the claim for service connection for residuals of a cholecystectomy. The RO denied the claim in a November 2013 rating decision. Following the Veteran’s appeal, in February 2018, the Board remanded the claim in order to allow the RO to issue the required Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). The RO issued a SOC in October 2019. A substantive appeal (VA Form 9) was received by VA in January 2020 (more than 60 days following the issuance of the SOC). See 38C.F.R. §20.302 (2019) (“a Substantive Appeal must be filed within 60 days from the date that the agency of jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination, whichever period ends later”). As such, the Veteran’s substantive appeal was untimely. However, in March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During the hearing, the Board heard testimony regarding the claim for service connection for residuals of a cholecystectomy. Notably, the United States Court of Appeals for Veterans Claims (Court) has held that timely filing of a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 42-45 (2009). Here, because the Board addressed and heard testimony pertaining to the gallbladder disorder, any issue as to the timeliness of the substantive appeal has been waived, and the issue of service connection for gallbladder disorder is properly before the Board. See also 38 C.F.R. § 19.35 (2019) (certification is used for administrative purposes and does not confer or deprive the Board of jurisdiction over an issue). In June 2020, the Board granted the Veteran’s petition to open his claim for service connection for residuals of a cholecystectomy and remanded the matter for further development. After the RO’s adjudication in a September 2020 Supplemental Statement of the Case (SSOC), the Veteran submitted additional lay and medical evidence and additional VA treatment records were added to the claims file. No waiver of initial RO consideration of this evidence has been received. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). Nonetheless, since the Board is remanding this matter for further development and the entire claims file is to be reviewed by the VA examiner prior to rendering an opinion, the Board finds no prejudice to the Veteran could result from this decision. As an aside, the Board notes that the Veteran has another appeal pending under the legacy system regarding entitlement to an increased rating for hepatitis B and an appeal pending under the modernized appeals system regarding entitlement to a special home adaptation grant and to specially adapted housing. These issues will be addressed in separate decisions. 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran asserts he is entitled to service connection for obstructive sleep apnea, to include as secondary to his service-connected PTSD. The Board finds that additional development is necessary prior to appellate review of this claim. In June 2020, the Veteran was provided an additional VA examination to determine the nature and likely etiology of his claimed obstructive sleep apnea. After an interview with the Veteran and review of his claims file, the June 2020 VA examiner provided two medical opinions. First, the June 2020 VA examiner opined that the Veteran’s obstructive sleep apnea was less likely than not proximately due to or the result of his service-connected condition, reasoning, in part, “[t]here is no medical evidence that the Veteran's sleep apnea is proximately due to or the result of or permanently aggravated by the Veteran’s SC PTSD. The available medical records as well as the medical literature received in March 2017 titled, ‘PTSD and the Sleep Apnea Connection[’] are reviewed. Although OSA may be associated with PTSD, there is no medical evidence that PTSD is causative of OSA. Obstructive sleep apnea is a diagnosis with a clear and specific etiology. Obstructive sleep apnea is characterized by recurrent collapse of the velopharyngeal and/or nasopharyngeal airway during sleep. The mostly likely etiology of the Veteran’s OSA is advanced aging as well as risk factors of male gender and obesity.” Second, the June 2020 VA examiner was asked whether it was at least as likely as not that the Veteran’s obesity is considered an intermediate step between any of his service-connected disabilities, including PTSD, and the development of his obstructive sleep apnea. The VA examiner again opined that the claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition, reasoning, in part, “[t]here is no medical evidence that the Veteran’s obesity is considered an intermediate step between any of his service-connected disabilities, including PTSD, and the development of his OSA. The available medical records are reviewed. Although obesity is a contributing factor to OSA, there is no medical evidence that the Veteran’s SC conditions would be causative of obesity or that obesity would be causative or an intermediate step between his SC conditions or cause permanent aggravation beyond its natural progression. Risk factors for obesity are multifactorial including genetics, sedentary lifestyle, western diet, and consuming more calories than required.” On review of the June 2020 VA medical opinions, the Board finds them inadequate for the following reasons. First, while both secondary causation and aggravation were addressed in the rationale provided for the June 2020 VA medical opinion, the VA examiner only provided one opinion – that the claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition. On remand, the VA examiner should clearly, and separately, address both avenues for secondary service connection. Second, the June 2020 VA examiner applied an incorrect standard for secondary aggravation, i.e., permanent aggravation. Under Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019), any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non-service-connected disability is not required. Thus, on remand, the VA examiner should ensure to apply the correct standard as to secondary aggravation. Additionally, no VA medical opinion has been obtained as to direct service connection for obstructive sleep apnea. At the March 2020 Board hearing, the Veteran testified that he experienced loud snoring during active service and that fellow servicemembers in his barracks would wake him up and tell him to turn over on his side or tell him to take a walk and come back when they were all sleeping. Given the Veteran’s competent lay reports of an in-service incurrence of sleep disturbance symptoms, the Board finds that, on remand, the VA examiner should also provide an opinion as to direct service connection for obstructive sleep apnea. 2. Entitlement to service connection for residuals of a cholecystectomy is remanded. The Veteran asserts he is entitled to service connection for residuals of a cholecystectomy, to include as secondary to his service-connected hepatitis B. The record reflects that the Veteran underwent surgery for gallbladder removal (also known as cholecystectomy) in March 1984. See March 1984 Report of Operation. In June 2020, VA obtained an additional medical opinion addressing the likely etiology of the Veteran’s claimed residuals of a cholecystectomy. After review of the Veteran’s claims file, the June 2020 VA examiner opined that the Veteran’s claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition, reasoning, in part, “There is no medical evidence that the Veteran’s gallstones/residuals of a cholecystotomy were proximately due to or the result of or permanently aggravated by his service-connected hepatitis B disability. The available medical records are reviewed including the BVA remand and abstract submitted by the Veteran regarding hepatitis B and cholelithiasis. The abstract presented represents a very small population of people and more research would need to be performed to determine the exact correlation between hepatitis B and cholelithiasis. According to the review in Pubmed.gov from 12/2016, the data on patients with hepatitis B virus and increased risk for gallstones is still very limited. The most likely etiology of the Veteran’s gallstones is increasing age and obesity.” On review of the June 2020 VA medical opinion, the Board finds it inadequate for the following reasons. First, while both secondary causation and aggravation were addressed in the rationale provided for the June 2020 VA medical opinion, the VA examiner only provided one opinion – that the claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition. On remand, the VA examiner should clearly, and separately, address both avenues for secondary service connection. Second, the June 2020 VA examiner applied an incorrect standard for secondary aggravation, i.e., permanent aggravation. As previously mentioned, under Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019), any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non-service-connected disability is not required. Thus, on remand, the VA examiner should ensure to apply the correct standard as to secondary aggravation. Accordingly, the matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran’s obstructive sleep apnea. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a thorough review of the claims file, the examiner is asked to provide an opinion as to the following: (a) Whether the Veteran’s obstructive sleep apnea at least as likely as not (50 percent probability or greater) had its onset during active service or is otherwise related to it. * Specifically, consider the Veteran’s March 2020 Board hearing testimony that he experienced loud snoring during active service and that fellow servicemembers in his barracks would wake him up and tell him to turn over on his side or tell him to take a walk and come back when they were all sleeping. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s obstructive sleep apnea is either proximately due to OR aggravated by the Veteran’s service-connected PTSD. * In doing so, address the medical literature received in March 2017 entitled, “PTSD and the Sleep Apnea Connection.” * Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non- service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). (c) If the answer to (b) is no (for BOTH secondary causation and aggravation), then state whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s obesity is an intermediate step between any of his service-connected disabilities, including PTSD, and the development of his obstructive sleep apnea. 2. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran’s claimed residuals of a cholecystectomy. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a thorough review of the claims file, the examiner is asked to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s gallstones/residuals of a cholecystectomy were either caused or aggravated by his service-connected hepatitis B disability. * Please address: i. The March 2020 medical study submitted by the Veteran; and ii. BOTH secondary causation and aggravation. * Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non- service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.