Citation Nr: 21031733 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-32 515 DATE: May 24, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected major depressive disorder (MDD), is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected MDD, is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from August 1979 to February 1980 and from December 1980 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2013 and April 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2019 decision, the Board, in pertinent part, denied entitlement to service connection for obstructive sleep apnea and remanded the issue of entitlement to service connection for hypertension for further development. The Veteran appealed the denied claim for service connection for obstructive sleep apnea. In March 2020, the United States Court of Appeals for Veterans Claims (Court) granted a March 2020 Joint Motion for Partial for Remand (JMPR) by counsel for the Veteran and VA, vacated the Board's March 2019 decision as to the issue of entitlement to service connection for obstructive sleep apnea, and remanded this matter to the Board for development consistent with the JMPR. In August 2020, the Board remanded the claims of entitlement to service connection for hypertension and obstructive sleep apnea for further development. 1. Service connection for hypertension. As noted, the claim for service connection for hypertension was remanded by the Board in August 2020 for further development, including to obtain a VA medical opinion as to whether the Veteran's hypertension was caused or aggravated by his service-connected MDD. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In February 2021, the Veteran was afforded a VA examination. The VA examiner opined that the Veteran's hypertension is not related to service. The examiner stated that medical literature indicates that the most common causes of hypertension are smoking, being overweight, lack of physical activity, excessive salt in the diet, alcohol, stress, older age, genetics, family history, chronic kidney disease, thyroid disorders and sleep apnea, and that 95 percent of high blood pressure cases are idiopathic and the underlying cause cannot be found. The examiner also opined that there is no nexus between the Veteran's hypertension and his service-connected MDD. The examiner noted that the Veteran's service treatment records (STRs) do not contain documentation of elevated blood pressure readings during service, and opined that there are no known factors or exposures that would create a nexus between hypertension and the Veteran's service. With regard to secondary service connection, the examiner opined the Veteran's hypertension is not proximately due to or the result of his MDD and there is no nexus between the disorders. In a March 2021 addendum opinion, the February 2021 VA examiner again opined that the Veteran's MDD did not cause or aggravate his hypertension. The examiner explained that the medical literature is lacking in documentation to support that MDD is causative in the development of hypertension. The examiner indicated the medical literature is also lacking in documentation to support that MDD would aggravate beyond the natural progression hypertension. The examiner reiterated that the literature is clear on the known risk factors for developing hypertension, including smoking, being overweight, lack of physical activity, excessive salt in the diet, alcohol, stress, older age, genetics, family history, chronic kidney disease, thyroid disorders and sleep apnea. The examiner further opined that there is no evidence to support that the Veteran's MDD worsened or hastened the normal progression of his hypertension. Thereafter, the Veteran's representative submitted an April 2021 brief in support of the claim. The representative challenged the adequacy of the February and March 2021 VA opinions, and indicated the examiner failed to provide an explanation as to why the Veteran's hypertension is not associated with his MDD. The representative further contended that the Veteran's obesity should be considered as a potential cause of his hypertension, noting that obesity may be considered an "intermediate step" between service-connected disabilities and a current disability. Thus, he contended the Veteran's service-connected disabilities caused his obesity, which led to his hypertension. The representative further submitted a medical article supportive of a link between obesity and individuals with depression, as well as an article suggesting that depression increases the risk of hypertension. Obesity is not considered a disability for VA purposes. However, obesity can be considered "an intermediate step" for service-connection if the evidence shows that a service-connected disability caused the veteran to become obese and the obesity caused by the service-connected disability was a substantial factor in causing the current disability, and that the current disability would not have occurred but for the obesity. See VAOPGCPREC 1-2017. The Board notes that a January 2020 VA treatment record indicated that the Veteran's weighed 301 pounds. Therefore, the Board finds that remand is necessary to obtain an additional VA opinion regarding the etiology of the Veteran's hypertension. The examiner should address whether the Veteran's hypertension was caused or aggravated by his service-connected MDD, and also, whether the Veteran's obesity was an intermediate step between his service-connected disabilities and his hypertension. 2. Service connection for obstructive sleep apnea. The claim for service connection for obstructive sleep apnea was remanded by the Board in August 2020 for further development, to include obtaining a VA medical opinion to determine the etiology of the disorder. In February 2021, the Veteran was afforded a VA examination. The VA examiner opined that the Veteran's obstructive sleep apnea is not related to service or the service-connected MDD. The examiner explained that medical literature indicates that the most common causes of sleep apnea are excessive weight, neck circumference, a narrowed airway, gender (being male), being older, family history, use of alcohol or sedatives, smoking, nasal congestion and other underlying medical conditions. The examiner stated that these risk factors are completely unrelated to military service. With regard to secondary service connection, the examiner stated MDD is not listed as an underlying medical condition that would increase the Veteran's risk of developing sleep apnea. In a March 2021 addendum opinion, the February 2021 VA examiner again opined that the Veteran's MDD did not cause or aggravate his obstructive sleep apnea. The examiner again stated that the literature also does not support that MDD would aggravate beyond the natural progression the Veteran's sleep apnea. The examiner noted the risk factors for sleep apnea which were previously listed and that there is a lack of evidence to support that the Veteran's service-connected MDD was causative in the development of his sleep apnea or worsened or hastened the normal progression of the disorder. Thereafter, the Veteran's representative submitted the April 2021 brief. As noted, the representative asserts the prior VA opinions failed to adequately explain why the Veteran's sleep apnea is not associated with his MDD. He also raised the claim of obesity as an intermediary step between service-connected disabilities and a current disability, and submitted a medical article that associates depression with obstructive sleep apnea patients. Similar to the prior claim, the Board finds that remand is warranted to obtain an additional VA medical opinion to determine the etiology of the Veteran's sleep apnea. The examiner should address whether the Veteran's obstructive sleep apnea was caused or aggravated by his service-connected MDD, and also, whether the Veteran's obesity was an intermediate step between his service-connected disabilities and his obstructive sleep apnea. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a qualified medical professional as to the nature and etiology of the Veteran's hypertension. The claims file must be made available to and reviewed by the VA examiner. *The need for another examination is left to the discretion of the VA examiner. After review of the claims file, the examiner is asked to provide the following opinions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is CAUSED by his service-connected MDD? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is AGGRAVATED by his service-connected MDD? c) Does the Veteran have a current diagnosis of obesity? **The examiner should note the January 2020 VA treatment record indicating that the Veteran's weighed 301 pounds. d) If so, is it at least as likely as not (50 percent or greater probability) that such obesity acts as an intermediate step between a service-connected disability (MDD, thoracolumbar strain, right hip arthritis, tinnitus, venereal warts, ulcerative colitis, and surgical scars status post squamous cell carcinoma) and the diagnosed hypertension? ** In making these opinions, the examiner should specifically address the relevance, if any, of the medical articles submitted by the Veteran's representative in April 2021. A complete rationale for all opinions expressed must be provided. 2. Obtain a medical opinion from a qualified medical professional as to the nature and etiology of the Veteran's obstructive sleep apnea. The claims file must be made available to and reviewed by the VA examiner. *The need for another examination is left to the discretion of the VA examiner. After review of the claims file, the examiner is asked to provide the following opinions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea is CAUSED by his service-connected MDD? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea is AGGRAVATED by his service-connected MDD? c) Does the Veteran have a current diagnosis of obesity? **The examiner should note the January 2020 VA treatment record indicating that the Veteran's weighed 301 pounds. d) If so, is it at least as likely as not (50 percent or greater probability) that such obesity acts as an intermediate step between a service-connected disability (MDD, thoracolumbar strain, right hip arthritis, tinnitus, venereal warts, ulcerative colitis, and surgical scars status post squamous cell carcinoma) and the diagnosed obstructive sleep apnea? ** In making these opinions, the examiner should specifically address the relevance, if any, of the medical articles submitted by the Veteran's representative in April 2021. A complete rationale for all opinions expressed must be provided. Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.