Citation Nr: 21040360 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-29 276 DATE: July 3, 2021 ORDER Entitlement to service connection for an eating disorder is dismissed. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for hypertension is granted. REMANDED Entitlement to an initial compensable rating, and a rating in excess of 10 percent prior to January 27, 2020, for hearing loss is remanded. FINDINGS OF FACT 1. In January 2021, a rating decision was issued granting service connection for an eating disorder. 2. The probative evidence or record establishes that the Veteran's sleep apnea is secondary to service-connected conditions, as his obesity was an "intermediate step" between service-connected conditions and sleep apnea. 3. The probative evidence or record establishes that the Veteran's hypertension is secondary to service-connected conditions, as his obesity was an "intermediate step" between service-connected conditions and hypertension. CONCLUSIONS OF LAW 1. As the benefit sought on appeal has been granted in full, the appeal for entitlement to service connection for an eating disorder is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.22. 2. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to February 1973, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was previously before the Board in November 2019, and the Board remanded for further development. In January 2021, the RO issued a supplemental statement of the case. The appeal has now been returned to the Board for further appellate review. The Board notes that a November 2020 rating decision by the RO granted service connection for PTSD and an increased rating of 10 percent effective January 27, 2020, for hearing loss. A January 2021 rating decision by the RO granted service connection for an eating disorder. In August 2018, the Veteran and his wife testified during a Board videoconference hearing before a Veterans Law Judge (VLJ). The hearing transcript is of record. In April 2021, the Veteran was advised that the VLJ who held the hearing in August 2018 is no longer available and the appellant was afforded the opportunity to participate in a hearing with a new VLJ. The appellant responded in April 2021, and he indicated that he does not want another Board hearing. The Veteran contends that his sleep apnea and hypertension are related to his PTSD and eating disorder because those conditions caused him to gain weight, which in turn caused his sleep apnea and hypertension. The Veteran also contends that he is entitled to ratings in excess of his current evaluations for hearing loss. Dismissal Entitlement to service connection for an eating disorder is dismissed The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 19.22. The January 2021 rating decision granted service connection for an eating disorder. Here, in essence, a "case or controversy" involving the pending adverse determinations to which the appellant has taken exception no longer exists. The January 2021 rating decision effectively granted the appellant's appeal, and a case or controversy on those issues no longer exists. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Based on the foregoing, the Board does not have jurisdiction to review the appeal on the issue and it is dismissed. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (permanently worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 44849 (1995). On January 6, 2017, the General Counsel issued a precedential opinion which held that obesity could be an "intermediate step" between a service-connected disability and a current disability and thus satisfy the causal link between the two. VAOGCPREC 1-2017. In such cases where the issue is raised, the adjudicator should resolve three issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for the obesity caused by the service-connected disability. VAOGCPREC 1-2017. 1. Entitlement to service connection for sleep apnea 2. Entitlement to service connection for hypertension In January 2020, the Veteran was afforded a VA PTSD examination. It was noted that the Veteran has night eating syndrome. The Veteran reported that he eats at night after his evening meal to manage anxiety. He awakes with nightmares and calms himself by having another meal. He said that eating is a way for him to cope with his PTSD symptoms. The examiner stated that "the Veteran's eating disorder began when his PTSD symptoms prevented him from sleeping at night. He developed a nighttime eating syndrome that led to weight gain. It appears the eating disorder is secondary to PTSD." As a PsyD, the examiner refused to comment with regard to whether the Veteran's PTSD or eating disorder are related to his sleep apnea, hypertension, or obesity because those are medical questions, and deferred such an opinion to a medical doctor. Therefore, the January 2020 opinion is not probative as to the relationship between the Veteran's service-connected conditions and his sleep apnea, hypertension, and obesity. In February 2020, VA medical opinions were provided regarding whether the Veteran's psychiatric condition caused or aggravated his sleep apnea and hypertension. The examiner opined that the sleep apnea and hypertension are less likely as not caused by a diagnosed psychiatric disorder. However, both opinions regarding both hypertension and sleep apnea were ostensibly based on the direct relationship between a psychiatric disorder, here PTSD and an eating disorder, and these disabilities; in other words these conclusions explicitly excluded consideration of the 'intermediate step' of obesity causing both hypertension and/or sleep apnea. In fact, to this end, the examiner explicitly indicated that an opinion could not be provided as to whether the Veteran's obesity caused his sleep apnea or hypertension because that issue is outside the scope of her practice. Therefore, the examiner's opinions are not probative on the matters of whether the Veteran's obesity is an "intermediate step" in causing his sleep apnea and hypertension. The examiner did note that major risk factors for hypertension are diabetes and obesity, and that obesity is the greatest risk factor for obstructive sleep apnea. In March 2020, the Veteran was provided a VA eating disorders examination. The examiner acknowledged diagnoses of PTSD, eating disorder and depressive disorder. The Veteran reported that he "awakes due to nightmares and he eats comfort food to make himself feel better, and the carbs put him to sleep. He eats large quantities of anything that is available to comfort himself and cope with the nightmares; this occurs on average 3 times per week." The examiner agreed with the January 2020 examiner's diagnosis of night eating syndrome associated with PTSD. However, no opinion regarding the association with obesity was provided. In December 2020, the Veteran was afforded additional opinions regarding whether his sleep apnea and hypertension were aggravated by his service-connected PTSD. The examiner stated that medical literature does not support hypertension or sleep apnea being aggravated or worsened by PTSD or psychological conditions, and thereby, determined no nexus was established. However, the examiner did not provide any corroborating information for this conclusion based on medical literature. Therefore, it was simply a conclusion without any cited support for the determination. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). Medical evidence is considered probative when it is factually accurate, fully articulated, and provides sound reasoning for the conclusion. See Id. As such, the December 2020 opinion is not probative. In December 2020, a VA medical opinion was provided regarding whether the Veteran's sleep apnea and hypertension are related to the Veteran's eating disorder due to his obesity. The examiner opined that sleep apnea and hypertension are at least as likely as not related to the Veteran's service-connected eating disorder. The examiner explained that obesity is the most common risk factor to lead to upper airway obstruction, therefore, the obstructive sleep apnea is at least as likely as not related to the obesity which was caused by the eating disorder. The examiner also stated that obesity is a major risk factor for hypertension, based on common medical knowledge, therefore the Veteran's eating disorder led to the obesity which led to hypertension. The examiner also determined that it is at least as likely as not that the Veteran's obesity was a substantial factor in his development of sleep apnea and hypertension. The examiner explained that obesity is a major risk factor for both the hypertension and sleep apnea and there are no other likely alternative etiologies for the Veteran's sleep apnea and hypertension than the Veteran's obesity. The Board finds the December 2020 opinion probative as the facts of the particular case were fully considered, the opinions were fully articulated, and the conclusions were based on reasoned opinion through the application of common medical knowledge by the expertise of an MD. In January 2021, a VA eating disorders opinion was provided. The Board notes that the January 2021 examiner is a PsyD, and that the January 2020 examiner was also a PsyD. The January 2020 examiner refused to comment with regard to the relationship between the Veteran's eating disorder and his obesity as that is outside the realm of a PsyD's expertise, and such an opinion should be rendered by an medical doctor. Therefore, the Board finds the December 2020 opinion by the MD to be of greater evidentiary weight than that of the January 2021 examiner. The January 2021 examiner opined that there is no evidence in the Veteran's records that his eating disorder caused obesity, and related the rapid weight gain to Mirtazapine, a prescription drug for depression. However, a lack of evidence cannot be corroborating to conclude that there is no relationship between the Veteran's current disability and his military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, it appears that the examiner did not consider the Veteran's lay testimony or statements that he provided to medical practitioners. The Veteran repeatedly expressed that he ate in order to deal with his PTSD, and the January 2020 VA opinion stated that the Veteran's eating disorder was directly related his PTSD. This would appear to provide a logical connection between gaining weight due to overeating at night as a way to cope with PTSD. The examiner failed to comment on this relationship between PTSD, eating disorder, and obesity. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). A Veteran's lay statements can provide evidence of symptoms that should be evaluated by an examiner. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds the January 2021 VA eating disorders opinion inadequate as the examiner did not consider all of the evidence of record and did not provide sound reasoning for the conclusions. The January 2021 examiner also indicated that the Veteran's obesity was related to the use of Mirtazapine. As the prescription for Mirtazapine was related to his service-connected PTSD, such an observation relates the Veteran's weight gain to his service-connected PTSD due to treatment. The Board also notes that a February 2020 medical note indicates the Veteran had weight gain due to Lupron injections, which was treatment for his service-connected prostate cancer. As such, the record clearly establishes that the Veteran's obesity is related to service-connected conditions and the December 2020 opinion found that the Veteran's obesity caused the sleep apnea and hypertension and those conditions would not have occurred but for the obesity. See VAOGCPREC 1-2017. The Board finds the December 2020 opinion to be the most probative evidence of record, as the opinion was fully articulated with sound reasoning based upon the facts of record and was provided by an medical doctor, who through education and medical knowledge is the most suited to render such an opinion. Accordingly, service connection for sleep apnea and hypertension is warranted. REASONS FOR REMAND Entitlement to an initial compensable rating, and a rating in excess of 10 percent prior to January 27, 2020, for hearing loss is remanded The record shows that an audiogram was completed by the Jacksonville VA in April 2019. See Audiology Note, April 26, 2019. The November 2019 Board remand directed that the RO obtain the April 2019 audiogram. The audiogram has not been associated with the record, and no documentation has been included in the record showing that the audiogram is unavailable. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The VA has a duty to obtain all relevant records in the custody of a Federal department agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Although, in December 2019, the RO submitted a letter to the Veteran requesting medical information, there is no evidence that the RO made any other efforts to obtain the audiogram that is in the custody of the VA. As such, the RO did not meet the VA duty to assist and did not comply with the November 2019 Board remand. A remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, remand is warranted for the RO to attempt to associate the April 2019 audiogram with the case file. The matter is REMANDED for the following action: 1. Associate the April 2019 audiogram with the case file. If the April 2019 audiogram cannot be associated with the record, all attempts to associate the April 2019 audiogram with the record must be documented in the case file. The RO should also associate with the claims file any outstanding VA medical records. 2. After completing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.