Citation Nr: 21020698 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-31 195 DATE: April 8, 2021 REMANDED Entitlement to service connection for sleep apnea as secondary to obesity resulting from service-connected bilateral ankle conditions is remanded. Entitlement to service connection for diabetes mellitus as secondary to obesity resulting from service-connected bilateral ankle conditions is remanded. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1991 to June 1998. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of May 2012 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The undersigned Veterans Law Judge (VLJ) conducted a hearing in this case in October 2017 and a transcript of that hearing is of record. The Board subsequently denied the Veteran’s service-connection claims in a decision of February 2018. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (CAVC), which granted a joint motion for partial remand (JMPR) in October 2018. The Board subsequently remanded the Veteran’s case for further development in May 2019 and the RO issued a supplemental statement of the case (SSOC) in November 2020. After reviewing the evidence of record, the Board now finds that an additional remand is necessary to ensure substantial compliance with the JMPR’s terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). 1. Entitlement to service connection for sleep apnea and diabetes mellitus. The Veteran asserts that his bilateral service-connected ankle conditions prevented him from exercising, resulting in obesity, which in turn caused his sleep apnea and diabetes mellitus. See October 2017 Transcript at 10-28. In its February 2012 decision, the Board denied these claims based in part on a contemporaneous VA examination report, which found that the Veteran’s obesity was the result of food choices and caloric intake rather than an inability to exercise. See February 2018 Board Decision at 17-22; see also February 2018 VA Examination Report at 37-39. The JMPR adopted by the CAVC specified that because the February 2012 VA examination report did not address the possibility of aggravation, it was not fully adequate to support the Board’s adjudication. See October 2018 CAVC Decision at 7-9; see also id. at 13 (order of the CAVC remanding “for action consistent with the terms of the joint motion”). The CAVC directed the Board to obtain: [A] new VA examination or medical opinion… to better address whether [the Veteran’s] diabetes mellitus and/or sleep apnea are aggravated by his service-connected bilateral ankle disabilities. Any opinion obtained must consider all accurate, relevant facts and provide a detailed rationale. The Board is further directed to consider [VA General Counsel Opinion] 1-2017… to include whether [the Veteran’s] obesity could qualify as an “intermediate step” between his service-connected bilateral ankle disabilities and his diabetes mellitus and/or sleep apnea. See id. at 8-9. Opinions of the VA General Counsel are binding upon the Board. See 38 U.S.C. § 7104(c). The VA General Counsel Opinion of January 2017 provides in pertinent part that while obesity is not a compensable disability per se, it may be an “intermediate step” supporting secondary service connection: [For] example, whether a veteran could establish entitlement to service connection for hypertension if a veteran’s service-connected back disability causes obesity due to lack of exercise, which leads to hypertension… [requires that] adjudicators… resolve the following issues: (1) whether the service-connected back 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 hypertension; and (3) whether the hypertension would not have occurred but for obesity caused by the service-connected back disability. If these questions are answered in the affirmative, the hypertension may be connected on a secondary basis. See VAOPGCPREC 1-2017 at 24-25; see also id. at 24 (providing that “[when] there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action”) (internal citation omitted); see also October 2018 CAVC Decision at 7-8. The Board therefore remanded these issues for a supplemental VA examination which would address these questions. However, while VA examiners reviewed the Veteran’s claims file in August and October 2020, neither of these examiners discussed the Veteran’s obesity at all. See September 2020 VA Medical Opinion at 4; see also October 2020 VA Examination Report (Diabetes Mellitus) at 3; see also October 2020 VA Examination Report (Sleep Apnea) at 3. These examination reports are therefore inadequate to substantially fulfill the CAVC’s remand directives. See Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus. Because the Veteran asserts that his erectile dysfunction is secondary to his diabetes mellitus, a lack of service-connection for diabetes mellitus would be dispositive of this issue. Because the issue of service connection for diabetes mellitus is being remanded, this issue must be remanded as inextricably intertwined. 3. Entitlement to a TDIU. Generally, VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Any disability ratings arising out of service connection for the issues discussed above will therefore be relevant in a TDIU determination. Because those issues are being remanded, this issue must be remanded as inextricably intertwined as well. Additionally, the Board notes that the Veteran asserts he did not receive “any forms in reference to a questionnaire for unemployability.” See November 2020 VA Form 21-4138 at 2. The record reflects that a copy of VA Form 21-8940 was sent to the Veteran in correspondence of March 2020. See March 2020 Subsequent Development Letter at 1. Because this issue is being remanded as inextricably intertwined, the Board finds that further evidentiary development would support efficient resolution of this issue at a later date. These matters are therefore REMANDED for the following action: 1. Provide the Veteran’s claims file to an appropriately-qualified examiner. The examiner shall review the claims file, including this remand, and provide opinions as to the following questions: (a.) Is the Veteran’s obesity at least as likely as not aggravated (worsened beyond its natural progression) by his bilateral service-connected ankle conditions? (b.) If so, is the Veteran’s diabetes mellitus and/or sleep apnea at least as likely as not aggravated by such obesity? The examiner is directed to specifically review the VA General Counsel Opinion of January 2017’s discussion of obesity as an “intermediate step,” quoted above in this remand, before reaching their conclusions. If the examiner concludes that the Veteran’s obesity is less likely than not aggravated by his service-connected ankle disabilities, or that such obesity more likely results from food choices and caloric intake instead, the examiner shall clearly explain the evidence and reasoning supporting such a conclusion. 2. Provide the Veteran with a copy of VA Form 21-8940 and request all employment and educational information relevant to his TDIU claim. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.