Citation Nr: 21021399 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 12-29 470 DATE: April 12, 2021 REMANDED Entitlement to service connection for sleep apnea, claimed as secondary to service-connected disabilities, is remanded. Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1987 to April 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in September 2010 and February 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran and his significant other testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran waived Agency of Original Jurisdiction (AOJ) consideration of evidence associated with the record since the issuance of the October 2018 supplemental statement of the case. 38 C.F.R. § 20.1305(c). Thereafter, additional evidence, to include updated VA treatment records and examination reports, was associated with the record. While the Veteran has not waived AOJ consideration of such evidence, there is no prejudice to him in proceeding with the adjudication of his claims at the present time as the AOJ will have the opportunity to consider the newly received evidence in the readjudication of such claims on remand. 1. Entitlement to service connection for sleep apnea, claimed as secondary to service-connected disabilities. The Veteran has advanced the very narrow theory of entitlement to service connection for sleep apnea as secondary to his service-connected disabilities. He does not contend, and the record does not suggest, that such disorder is otherwise related to his military service. Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008). In this regard, the Veteran contends that, when he experiences flare-ups of his service-connected anxiety disorder with dysthymia, his sleep becomes greatly disrupted. He further alleges that his service-connected musculoskeletal disabilities, to specifically include his back, right ankle, and right foot disabilities impact his ability to exercise and, thus, resulted in weight gain, which, in turn caused or aggravated his sleep apnea. As an initial matter, the Board notes that the Veteran has a current diagnosis of sleep apnea as of July 2013. See September 2013 VA examination report. However, following a review of the record, an interview with the Veteran, and a physical examination, the September 2013 VA examiner opined that such disorder was less likely than not proximately due to or the result of the Veteran’s service-connected acquired psychiatric disorder. In support of such opinion, she observed that the Veteran was service-connected for an anxiety disorder rather than posttraumatic stress disorder (PTSD). The examiner further indicated that she reviewed the articles submitted by the Veteran that purported to suggest a relationship between PTSD and sleep apnea, but noted that the current medical literature stated that studies had shown that, if a person had obstructive sleep apnea and PTSD, using a CPAP machine helped with symptoms of PTSD, such as insomnia, nightmares, restlessness, etc. However, she explained that if an individual had PTSD, it did not mean he/she would have sleep apnea or vice versa. Thus, she concluded that there was no cause or effect with sleep apnea and PTSD. However, the Board finds that, such opinion is inadequate to decide the claim. In this regard, while the September 2013 VA examiner addressed the first prong of secondary service connection, i.e., causation, she did not address the second prong, i.e., aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). Further, the examiner did not address whether the Veteran’s obesity is related to his service-connected disabilities and, if so, whether such caused or aggravated his sleep apnea. In this regard, obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017. However, in order to show secondary service connection is warranted under such a theory, a veteran must show (1) that his service-connected disability caused him to become obese; and, if so, (2) whether the obesity as a result of the service-connected disability was a substantial factor in causing his claimed condition; and (3) whether the claimed condition would not have occurred but for obesity caused by the service-connected disability. Id. The United States Court of Appeals for Veterans Claims (Court) recently confirmed that an extension of service connection through obesity as an intermediary step should be addressed on the basis of aggravation as well. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). Thus, a remand is necessary in order to obtain an addendum opinion that addresses such matters. 2. Entitlement to SMC based on the need for the regular aid and attendance of another person. In pertinent part, SMC is payable for where a veteran is so helpless as to be in need of regular aid and attendance due to service-connected disabilities. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. Upon review, the Board finds clarification is required to determine whether the Veteran’s service-connected disabilities, alone, render him so helpless as to be in need of regular aid and attendance. In this regard, a June 2010 statement from Q.W. indicates that she provided assistance to the Veteran in performing daily tasks to include meal preparation, chores, and hygiene keep up; however, it is unclear why such assistance was needed, i.e., whether such was a result of his service-connected disabilities. Additionally, a November 2014 Residual Functional Capacity Questionnaire completed by Dr. B.D. reflects the Veteran has issues with activities of daily living; however, such reflects that his assessment was based, at least in part, on nonservice-connected disabilities. Similarly, while a February 2016 VA treatment record shows that the Veteran had recently been assigned a home health aide, the basis for such need was not identified. Nonetheless, in light of the nature and severity, to include the resulting functional impairment of the Veteran’s service-connected disabilities, the Board finds that a remand is necessary in order to afforded him a VA examination so as to determine whether he is so helpless so as to be in need of regular aid and attendance due to his service-connected disabilities. The matters are REMANDED for the following action: 1. Forward the record, to include a copy of this Remand, to an appropriate VA clinician for an addendum opinion addressing the etiology of the Veteran’s sleep apnea. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s sleep apnea is aggravated by his anxiety disorder with dysthymia? (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that (1) the Veteran’s service-connected disabilities, to include his back with associated radiculopathy of the bilateral lower extremities, right ankle, and right foot disabilities, caused or aggravated his obesity, to include as a result of a lack of exercise, and, if so, (2) whether such resulting obesity was a substantial factor in causing or aggravating his sleep apnea and (3) whether his sleep apnea would not have occurred or worsened but for the obesity caused by his service-connected disabilities. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. 2. Afford the Veteran a VA examination to determine his eligibility for SMC based on the need for the regular aid and attendance of another person. The record, to include a copy of this remand must be made available to the examiner, and all indicated testing must be conducted. Following a review of the record and an examination of the Veteran, the examiner must express an opinion as to whether his service-connected disabilities (gastroesophageal reflux, anxiety disorder with dysthymia, right ankle disability, back disability with associated radiculopathy of the bilateral lower extremities, right foot disability as of November 12, 2013, bilateral ingrown toenails, and scars as of October 23, 2013) result in the following limitations at any time pertinent to his May 2010 claim: (A) Inability to dress or undress himself or to keep himself ordinarily clean and presentable; (B) Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this does not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (C) Inability to attend to the wants of nature; (D) Inability to feed himself through loss of coordination of the upper extremities or through extreme weakness; or (E) Incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. In offering such opinion, the examiner should consider the aforementioned June 2010 statement from Q.W., November 2014 Residual Functional Capacity Questionnaire from Dr. D.B., the February 2016 VA treatment record showing the assignment of a home health aide, and the VA examinations conducted since May 2010 that detail the functional impairment of the Veteran’s service-connected disabilities. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.