Citation Nr: 21023531 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-24 948 DATE: April 20, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as due to a service-connected disability and/or resulting obesity, is remanded. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1969 to May 1971. This matter comes to the Board of Veterans' Appeals (Board) from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. These issues were previously before the Board in October 2018, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board’s prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran’s appealed issues have been returned to the Board for further appellate consideration. Clarification of an issue on appeal As noted by the Board in the October 2018 remand, the Veteran’s initial claim for an acquired psychiatric disability has been expanded, as per the United States Court of Appeals for Veterans Claims’ (Court’s) holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, this expansion has been truncated by the Veteran’s recent filing, and the AOJ’s denial, of 1. Entitlement to service connection for sleep apnea, to include as due to a service-connected disability and/or resulting obesity, is remanded. A diagnosis of central sleep apnea syndrome was confirmed upon a sleep study test completed in October 2016. The Veteran has not provided any assertions in support of how this disability may be proximately due to or the result of any incident of his active duty or secondary to a service-connected disability; however, the Board notes that the Veteran’s body mass index (BMI) is above 30, which meets VA’s definition of obesity. To this point, VA's Office of General Counsel has held that a claim for secondary service connection may rest on obesity as an intermediary between the claimed secondary disability and the service-connected primary disability. See VAOPGCPREC 1-2017. Presently, the Veteran’s only service-connected disabilities (bilateral hearing loss and tinnitus) are not associated with weight gain; however, the Board observes that the Veteran has several active claims and appeals within VA’s system to establish service connection for disabilities which, along with medication for treatment of such, can cause weight gain. The Veteran has not been provided a VA examination in connection with this claim, and in view of above, the Board concludes that the low threshold to do so has been triggered by the evidence listed above. 38 C.F.R. § 3.159 (c) (4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded. The record reflects diagnoses of major depressive disorder and anxiety disorder during the appeal period, and the Veteran asserts that such are due to several in-service incidents. Specifically, the Veteran contends that his psychiatric disabilities are due to survivor’s guilt related to experiences during active duty. Further, he stated that he was constantly in fear for his life while working in the mental word of a military hospital and got into several confrontations with soldiers who were stealing morphine. He also considered suicide because of the possibility of being sent to Vietnam. The AOJ obtained two opinions addressing the matter of a medical nexus between the Veteran’s psychiatric disabilities and his in-service experiences in June 2019 and September 2019. The Board notes that both of these opinions were unfavorable to the Veteran’s appeal; however, the rationale of both opinions was focused on the extended time gap between the Veteran’s reported in-service stressor events and symptoms and the eventual psychiatric diagnoses. The Board observes that this rationale is contrary to VA’s governing regulations, particularly 38 C.F.R. § 3.303 (d), and thus, are inadequate for the purpose of readjudicating the Veteran’s appeal. In light of above, the Board concludes that another remand is necessary to ensure that the AOJ obtains an adequate medical nexus opinion addressing the etiology of the Veteran’s diagnosed acquired psychiatric disabilities other than PTSD. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment pertaining to the Veteran. 2. The AOJ must contact the Veteran and request that he complete a release for any post-service private treatment records that are outstanding and pertinent to the issues remanded by the Board that are not already part of the record. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 3. Thereafter, the AOJ must request that the Veteran be scheduled for appropriate VA examinations to determine the nature and etiology of his sleep apnea, and any acquired psychiatric disability other than PTSD. The complete electronic record must be made available to, and reviewed by, the VA examiner(s) prior to conducting the examination(s). All necessary tests and studies should be conducted. Thereafter, the VA examiner are requested to address the following: a. Provide an opinion considering whether any identified acquired psychiatric disability other than PTSD is at least as likely as not proximately due to or the result of the Veteran’s service. *In addressing the above, the examiner must consider and discuss the Veteran’s competent and credible reports of experiencing suicidal thoughts, fear, and survivor’s guilt during and/or since service. b. Provide an opinion considering whether the Veteran’s sleep apnea is least as likely as not caused or aggravated by a service-connected disability. c. Provide an opinion considering whether it is at least as likely as not that the Veteran's obesity is caused by or related to any of the Veteran's service-connected disabilities and/or medications prescribed for such. If so, further state whether the obesity that was the result of service-connected disability was a substantial factor in causing or aggravating sleep apnea. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. (Continued on the next page)   4. Thereafter, the AOJ readjudicate the Veteran’s appealed issues in light of any additional evidence added to the record. If any benefit is not granted to the fullest extent, the Veteran and his representative should be furnished with a copy of the readjudication andbe afforded the applicable opportunity to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kokolas, 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.