Citation Nr: 21028166 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-22 934A DATE: May 10, 2021 REMANDED Entitlement to service connection for right hip pain is remanded. Entitlement to service connection for restless leg syndrome is remanded. Entitlement to service connection for intrascapular pain is remanded. Entitlement to service connection for high blood pressure is remanded. Entitlement to service connection for sleep apnea associated with post-traumatic stress disorder with depressive disorder and insomnia disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1966 to June 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran opted out from a Board hearing as indicated in his June 2014 Form 9. During the pendency of the appeal period, RO granted service connection for post-traumatic stress disorder with depressive disorder and insomnia disorder. Thus, this claim is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (clarifying that an appeal regarding downstream elements, i.e. the disability rating and effective date, is separate from any prior appeal regarding entitlement to service connection). In this case, the Veteran has not disputed either the effective date for the award of service connection or the rating assigned for this condition. Initially, although the Board acknowledges the Veteran's submission of a May 2020 Decision Review Request (higher level review) for his sleep apnea claim, this claim will be addressed herein, as it remains pending under the legacy appeal system (see September 2020 VA correspondence letter, RO had mistakenly closed his appeal for "failure to submit a substantive appeal" and that his appeal will be processed under the legacy appeal system , as the Veteran had not withdrawn this issue from the legacy system). 1. Entitlement to service connection for right hip pain is remanded. 2. Entitlement to service connection for restless leg syndrome is remanded. 3. Entitlement to service connection for intrascapular pain is remanded. Since the issuance of the April 2014 Statement of the Case (SOC), relevant additional evidence, to include VA treatment records, have been associated with the claims file. Accordingly, the Board requested a waiver for the AOJ's initial consideration of this evidence (see February 2021 waiver request letter). However, neither the Veteran nor the representative has responded to this request. Thus, the Board has no choice but to remand for the issuance of a SSOC. 4. Entitlement to service connection for high blood pressure is remanded. The Veteran seeks service connection for his high blood pressure condition as due to his service in Vietnam. Initially, the Board notes that the additionally obtained evidence does not include any information relevant to this issue on appeal. However, for the reasons provided immediately below, the Board finds that another remand is required at this time. It is not in question that the Veteran has a current disability as he has been diagnosed with hypertension during the appeal period. The Veteran's service records show that he served in the Republic of Vietnam and herbicide exposure is presumed. To date, hypertension is not an enumerated disability entitled to presumptive service connection based on exposure to herbicide agents under 38 C.F.R. § § 3.309 (e). However, under Combee, service connection may still be awarded based on that exposure on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In the 2018 update to the National Academy of Sciences' (NAS) report, "Veterans and Agent Orange," hypertension was upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to herbicide agents, to the category of "sufficient" evidence of an association to herbicide agents. According to the NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide agent exposure. The Board declines to take judicial notice of the findings and conclusions found in the 2018 update to the NAS report, as this literature does not include facts of universal notoriety that are not subject to reasonable dispute. Monzingo v. Shinseki, 22 Vet. App. 97, 103 (2012). However, the Board will take judicial notice that the 2018 update to the NAS report "Veteran and Agent Orange" exists and finds than an addendum medical opinion is warranted for an appropriate VA examiner to consider this report in relationship to the Veteran's medical history. 5. Entitlement to sleep apnea associated with post-traumatic stress disorder with depressive disorder and insomnia disorder is remanded. The Veteran believes his sleep deprivation condition is due to his time spent in Vietnam. Alternatively, the Veteran contends that his service-connected PTSD led to his decreased activity, resulting in his weight gain/obesity, leading to his sleep apnea condition. As a threshold matter, the Board observes that obesity is not considered a disease for purposes of VA benefits. See VAOPGCPREC 1-2017 (holding the "longstanding policy of [VA], that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis, is consistent with title 38, United States Code" and "[o]besity per se is not a 'disability' for purposes of 38 C.F.R. § 3.310 "). However, although obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131, and therefore may not be service connected on a direct or secondary basis, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis (1) if a previously service-connected disability caused him to become obese; (2) that obesity was a substantial factor in causing secondary disability; and (3) the secondary disability would not have occurred but for the obesity. See VAOPGCPREC 1-2017. Recently, in Garner v. Tran, No. 18-5865, the United States Court of Appeals for Veterans Claims (CAVC) concluded that in order to reasonably raise the theory of secondary service connection via obesity as an intermediate step, there must be some evidence in the record that draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service connected disability. Conversely, the CAVC determined that incidental references to obesity, or weight gain resulting in obesity, are insufficient to reasonably raise this theory of entitlement. In that decision, the CAVC also provided a list of six non-exhaustive considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step: mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; side effects of medication (e.g., weight gain), where the medication is prescribed for a service connected disability; treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability. In this case, there is evidence that reasonably raised the theory of secondary service connection via obesity as an intermediate step. See June 2018 and November 2019 private medical nexus opinions (i.e. reduced physical activity or inability to follow a course of exercise or diet as a result of his service-connected psychiatric disability). A VA examination and a medical addendum opinion were obtained in 2018, in which the examiner provided alternative etiologies for obstructive sleep apnea (see July 2018 VA examination, airway obstruction) and weight gain (see August 2018 VA medical addendum opinion, dietary choices/self-control). However, the examiner failed to address the aspect of obesity as an intermediary step and reconcile the favorable private opinions/medical literatures provided in support (i.e. PTSD causing inactivity/weight gain/obesity, resulting in sleep apnea). Thus, the Board regrettably finds a remand is required for a medical addendum opinion. These matters are REMANDED for the following action: 1. Obtain a medical addendum opinion for the claimed high blood pressure condition. The examiner must review the complete claims file, including this remand. Then, the examiner must address the following, with full supporting rationales: a. Determine whether the Veteran's high blood pressure is at least as likely as not related to an in-service injury, event, or disease, to include his exposure to herbicide agents. The examiner is requested to consider and discuss the National Academy of Sciences' report, "Veterans and Agent Orange," 2018 update, which concluded that there was "sufficient" evidence of an association between the chemicals of interest in herbicide agents and hypertension. The examiner must provide a complete rationale for any opinion based on the examiner's medical expertise, medical principles, and the evidence in the appellate record. However, the examiner is advised that simply stating hypertension is not on the list of diseases presumptively associated with Agent Orange exposure is not sufficient rationale for a negative opinion. 2. Return the file to the to the 2018 VA examiner for sleep apnea condition (or if unavailable, with another appropriate VA examiner). The examiner is requested to review the Veteran's entire electronic claims file, including this REMAND, prior to examination. Such review must be noted in the examination report. The examiner is then requested to: Whether it is at least as likely as not that the sleep apnea was caused or aggravated by a service-connected psychiatric disability. Specifically, the examiner should address whether obesity served as an "intermediate step" between the Veteran's service-connected disabilities and sleep apnea by answering the following: a. Is it at least as likely as not that the Veteran's service-connected disabilities, to specifically include PTSD with depressive disorder and insomnia disorder, caused the Veteran to become obese or aggravated the Veteran's obesity? b. If so, was the obesity as a result of the service-connected disabilities a substantial factor in causing sleep apnea? c. If so, is it the case that the Veteran's sleep apnea would NOT have developed but for that obesity? In providing the requested opinions, please discuss the Veteran's contention that he has gained weight/became obese because of his service-connected PTSD with depressive disorder and insomnia disorder, as well as the June 2018 and November 2019 private medical nexus opinions. The examiner must provide a complete rationale for any opinion expressed that is based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must explain why this is so and note what, if any, additional evidence would permit an opinion to be made. 3. Readjudicate the service connection claims for right hip pain, restless leg syndrome, and intrascapular pain on appeal, with consideration of all additional evidence received after the April 2014 SOC. If any benefit sought is not granted in full, the AOJ must furnish to the Veteran and his representative a SSOC. T.D. JONES Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lee 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.