Citation Nr: 22010959 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 14-31 195 DATE: February 24, 2022 ORDER Entitlement to service connection for sleep apnea as secondary to obesity resulting from service-connected bilateral ankle conditions is denied. Entitlement to service connection for diabetes mellitus as secondary to obesity resulting from service-connected bilateral ankle conditions is denied. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's obesity does not result from service-connected bilateral ankle conditions. 2. The Veteran's obesity does not result from service-connected bilateral ankle conditions. 3. The Veteran's diabetes mellitus is not service-connected. 4. The Veteran's service-connected disabilities have prevented him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea as secondary to obesity resulting from service-connected bilateral ankle conditions have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.310. 2. The criteria for entitlement to service connection for diabetes mellitus as secondary to obesity resulting from service-connected bilateral ankle conditions have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.310. 3. The criteria for entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.310. 4. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1991 to June 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of May 2012 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The undersigned Veterans Law Judge (VLJ) conducted a hearing in this case in October 2017 and a transcript of that hearing is of record. The Board previously remanded this case for further development in April 2021, pursuant to a joint motion for partial remand (JMPR) adopted by the Court of Appeals for Veterans Claims (CAVC). See April 2021 Board Decision at 6 (reviewing additional procedural history); see also June 2021 Supplemental Statement of the Case (SSOC). After reviewing the evidence of record, the Board finds that the RO has substantially fulfilled its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). 1. Service connection for sleep apnea and diabetes mellitus as secondary to obesity resulting from service-connected bilateral ankle conditions; and service connection for erectile dysfunction as secondary to diabetes mellitus. Service connection generally requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Disabilities which are "proximately due to or the result of a service-connected disease or injury" are also service connected. 38 C.F.R. § 3.310(a). "When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition." Id. As discussed in the Board's prior remand, the JMPR adopted by the CAVC found that a prior VA examination was inadequate to sustain adjudication of the Veteran's claims because it did not address the possibility that his sleep apnea and diabetes mellitus have been aggravated by obesity resulting from his service-connected bilateral ankle conditions. See April 2021 Board Decision at 6-7; see also id. (discussing VA General Counsel opinion providing that obesity may be an "intermediate step" supporting secondary service connection). After finding that VA examinations of August and October 2020 had not discussed the Veteran's obesity, the Board remanded this case for an additional examination. See April 2021 Board Decision at 7; see also id. at 8 (finding that the issues of service connection for erectile dysfunction and entitlement to a TDIU are inextricably intertwined with the other claims on appeal); see also id. at 9 (directing that the RO develop the Veteran's TDIU claim by providing appropriate forms). The Board now finds that the RO has substantially complied with its remand directives. See Stegall, 11 Vet. App. at 271; see also April 2021 Development Letter at 7-12 (providing forms associated with TDIU claim); see also April 2021 Social Security Administration (SSA) Records at 12 (providing SSA determination that the Veteran is not disabled); see also May 2021 VA Medical Opinion (III) at 3 (opining that Veteran's obesity was not caused or aggravated by service-connected bilateral ankle conditions). The Board notes that the medical opinions provided following its last remand were provided by two different VA examiners, the latter of whom also examined the Veteran directly. See May 2021 VA Medical Opinion (III) at 4 (providing signature of examiner R.P.); cf. May 2021 VA Medical Opinion (IV) at 4 (providing signature of examiner G.S.). The Board clarifies this point because the Veteran has subsequently asserted as follows: [The] compensation examinations conducted on remand are inadequate. The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. Guerrieri v. Brown, 4 Vet. App. 467 (1993). It is a medical examiner's responsibility to provide a well-supported opinion so that the Board may carry out its duty to weigh the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (concluding that medical opinion is not entitled to any weight, "if it contains only data and conclusions"). Unfortunately, this examiner is not shown to have any particular expertise, training, or competence in commenting on Endocrine, Neurologic and/or Sleep disorders. Rather, the examiner is noted merely as a [nurse practitioner]. Absence of competence renders his conclusions no more probative than the appellant's lay assertions that there is [a] nexus between the claimed conditions and service, to include as secondary to service-connected ankle conditions and/or obesity as an intermediate step. Here, the examinations and opinions on remand are inadequate per the Court's holdings in Guerrieri and Nieves-Rodriguez. See September 2021 Appellate Brief at 6. The Veteran's attribution of all "the compensation examinations conducted on remand" to "the examiner" supports the inference that the Veteran may have believed these examinations were conducted by a single VA examiner. The Board will consider the argument presented above as applicable to both examiner G.S. and examiner R.P. See May 2021 VA Medical Opinion (III) at 4 (providing examiner R.P.'s qualifications as a physician assistant). "Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a [VA] medical examiner." Francway v. Wilkie, 940 F.3d 1304, 1308 (2019). However, the Veteran's argument does not in fact request any information as to the VA examiners' qualifications. See September 2021 Appellate Brief, supra. Instead, the Veteran offers the bare assertion that the VA examiners were not competent because they did not have "particular expertise, experience, training, or competence in commenting on Endocrine, Neurologic and/or Sleep disorders." See September 2021 Appellate Brief, supra. The Veteran has also not provided any evidence that his conditions are so unusual or complex as to require a specialist's opinion, or otherwise explained why the absence of particular expertise in the specialties listed above renders the VA examiners' general training inadequate. Accordingly, the Board finds that neither remand for an additional VA examination from a specialist or for the VA examiners' curriculum vitae under Francway are warranted. The Veteran has also made several assertions of bias and dishonesty on the part of examiner G.S. and has requested an additional VA examination on this basis. See September 2021 Correspondence (asserting that "[these] doctors seem to have an agenda to say anything to prevent me from getting a favorable rating decision" and that "[this] latest doctor has even gone so far as to lie about my medical information"); see also id. (asserting that "[she] said I battled obesity throughout my military career" and that "[this] doctor has made claims about alcohol abuse and non-compliance with diets"). The Board finds that an additional VA examination is not warranted at this time because the Veteran's accusations of dishonesty are not supported by the evidence of record. As an example, the Veteran asserts that "I have never been treated for any type of alcohol abuse or nutritional issues while I was in the Service." Id. However, neither of the VA examiners actually reached this particular conclusion. Instead, the medical opinion of examiner G.S. stated in pertinent part that "[the Veteran's claims file] reveals... obesity [and] alcohol abuse history, nutritional consult, physician's note regarding [his] risk factors including elevated blood sugar and alcohol abuse... [and] non-compliance with diet [and] exercise." See May 2021 VA Medical Opinion (V) at 3. This conclusion is consistent with the Veteran's post-service medical treatment records. See April 2021 Medical Treatment Records at 42 (providing December 2020 treatment note observing Veteran's assertions that "I drank a lot[,] [probably] every other day" and that "I got intoxicated a lot back then"); see also id. at 3 (providing April 2021 treatment note listing "nondependent alcohol abuse in remission" in medical history); see also November 2020 Medical Treatment Records at 4 (providing October 2020 letter advising Veteran of worsening diagnostic indicator for diabetes "[probably] due to noncompliance with meds and diet"). In other words, examiner G.S. did not state that the Veteran was treated for alcohol abuse or nutritional non-compliance specifically during his active-duty service; rather, she stated that his medical history included alcohol abuse and nutritional non-compliance, which is consistent with his medical records. The statements of examiner G.S. that "obesity and weight control was an issue for [the Veteran] during his military service" and that he had "[an] obesity issue even before he entered [active-duty] service" are likewise consistent with the evidence of record. See May 2021 VA Medical Opinion (V) at 3; see also May 2021 VA Medical (III) at 3 (noting that a body mass index (BMI) measurement in excess of 30 reflects a finding of obesity); see also September 2021 Correspondence (asserting that at entry into basic training, the Veteran's height was 72 and 3/4 inches and that he weighed 192 pounds); cf. "Calculate Your Body Mass Index," U.S. Department of Health and Human Services (obtained via https://www.nhlbi.nih.gov/health/educational/lose_wt/BMI/bmicalc.htm) (providing that such height and weight measurements result in a BMI measurement of 25.5, which falls within the BMI category of "Overweight"). The Board notes the Veteran's assertion that "[the] promotion board photo dated [July 1995] clearly shows I was not overweight even though I was gaining weight due to my ankle injuries[.]" See September 2021 Correspondence; see also September 2021 Photograph. However, the Veteran's subjective assessment of what is or is not overweight is not equivalent to, and is not competent to contradict, a medical determination of obesity or of being overweight based on objective criteria. "Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]" Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Veteran asserts that his height and weight circa this photograph were 73 inches and 212 pounds, respectively, which results in a BMI of 28. See September 2021 Correspondence; cf. "Calculate Your Body Mass Index," supra. The Board therefore concludes that the Veteran's assertions of deliberate dishonesty on the part of examiner G.S. are not supported by the evidence of record and that remand for an additional VA examination on this basis is not warranted. After determining that remand for additional VA examinations or for the VA examiners' credentials is not warranted, the Board turns to adjudication of the Veteran's claims. As noted above, VA examiner R.P. provided a medical opinion addressing the possibility of a link between the Veteran's service-connected bilateral ankle conditions and his obesity. In pertinent part, this opinion provides that: Obesity is multifactorial including genetics, physical inactivity, sedentary lifestyle, diet, metabolic and cardiovascular conditions. While orthopedic conditions such as the [service-connected] bilateral ankle [conditions] may cause pain with high-impact activity, there are numerous other strategies such as low-impact exercise, seated exercises, aquatic therapy[,] and limiting calorie intake. [The Veteran's] [service-connected] ankle [conditions] [do] not preclude all exercises or activity. Low-intensity exercises such as stationary biking, swimming[,] and rowing can still be performed. BMI [in] July 1995 during service was 28.8 (obesity BMI > 30)... While post-service records show obesity as early as 2002 ([November 2002]... BMI 35.5) it has been determined that [the Veteran's] obesity is less likely than not proximately due to or caused by the SC ankle [conditions]. While the post-service records show evidence of weight gain/obesity, [the Veteran's] obesity was less likely than not aggravated beyond natural progression by the SC ankle [conditions]. A nexus is not established. See May 2021 VA Medical Opinion (III) at 3. Because this opinion explains the multiple risk factors associated with obesity, and because both this opinion and the findings of examiner G.S. discussed above address the Veteran's status as clinically overweight throughout his active-duty service, the Board assigns this opinion significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304 (providing that "most of the probative value of a medical opinion comes from its reasoning"). Because the causes of obesity are multifactorial as discussed above, the Veteran's lay assertions are not competent to establish that it is at least as likely as not that such obesity was aggravated by his service-connected bilateral ankle conditions. See Jandreau, 492 F.3d at 1376. Because the Veteran's obesity is not proximately due to or aggravated by his service-connected ankle conditions, such obesity cannot serve as an intermediate link supporting secondary service connection for his OSA and diabetes mellitus. See 38 C.F.R. § 3.310; see also VAOPGCPREC 1-2017 at 24-25. In the absence of additional competent evidence supporting such a conclusion, the Board finds that the third Shedden factor has not been met as to these claims. The assignment of service connection for OSA and diabetes mellitus is therefore not warranted. 38 C.F.R. § 3.310. Because the Veteran's erectile dysfunction claim is contingent upon a finding that his diabetes mellitus is service-connected, service connection for this condition is likewise not warranted. Id. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran's claims. 38 U.S.C. § 5107. 2. Entitlement to a TDIU. Generally, VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. "Substantially gainful employment," in this context, is that which is more than marginal in nature. 38 C.F.R. § 4.16(a). For the Board to consider a schedular TDIU in the first instance, veterans must generally meet certain schedular disability ratings. See 38 C.F.R. § 4.16(a) (providing that initial schedular consideration requires a single service-connected disability rated at least 60 percent disabling, or else a combined disability rating of 70 percent with at least one disability of 40 percent or greater). The record reflects that the Veteran meets these schedular criteria throughout the rating period on appeal. See July 2019 Rating Codesheet at 1-2 (noting a total disability rating of 80 percent from October 2011, with a psychiatric condition rated at 50 percent); see also id. (noting a total disability rating of 90 percent from November 2015, with a psychiatric condition rated at 70 percent). The Veteran's service-connected disabilities include a psychiatric condition variously rated as 50 percent and 70 percent disabling, bilateral ankle conditions each rated as 10 percent disabling, a skin condition rated as 10 percent disabling, bilateral knee conditions each rated as 10 percent disabling, and bilateral eye conditions rated as 10 percent disabling. Id. The record further reflects that the Veteran has been found not disabled by the Social Security Administration (SSA). See April 2021 SSA Records at 12. While this decision is not binding upon the Board, the Board nonetheless considers it along with the other relevant evidence of record. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). The Veteran has previously been employed in a variety of positions, including customer service representative, security guard, assistant teacher, and residential counselor. See April 2021 SSA Records at 15 (noting seven different positions between 1999 and 2008). The Veteran asserts that he was last employed in 2008 as a freight team associate. Id.; see also May 2014 Correspondence at 1. The Veteran asserts that his service-connected conditions have prevented him from obtaining and maintaining substantially-gainful employment after 2008. See id. (asserting that "I was unable to continue [as a freight team associate] due to extreme pain in my joints"); see also November 2018 Correspondence at 3. The record reflects that the Veteran has received some college education but has not completed a degree. See id. (asserting that "I am not qualified to perform anything but manual labor jobs" and that "I went back to school for additional training but I have never been able to finish due to different mental health crises"); see also July 2008 Vocational Rehabilitation and Employment (VRE) Correspondence. The Board is mindful that "[the] sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough" to establish entitlement to a TDIU and that "[a] high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment." Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). However, the evidence of record supports the inference that it is at least as likely as not that the combination of the Veteran's service-connected conditions prevents him from obtaining and maintaining substantially-gainful employment. 38 U.S.C. § 5107. In reaching this conclusion, the Board particularly notes the Veteran's lay statements, the rapid transition between multiple positions over a relatively brief period of time, and corroborating medical and vocational rehabilitation records. See May 2014 Correspondence; see also March 2009 VRE Correspondence (reflecting withdrawal from university courses); see also October 2009 VRE Correspondence (noting "ongoing problems with his ability to concentrate as a result of [his psychiatric condition]" among other symptoms); see also January 2010 VRE Correspondence (noting academic probation); see also February 2012 VA Examination Report at 56 (noting "difficulty in establishing and maintaining effective work and social relationships" and "difficulty in adapting to stressful circumstances, including work or a work-like setting" among psychiatric symptoms); see also September 2018 VRE Correspondence (discontinuing VRE services based on failure to pursue rehabilitation program); see also September 2018 VA Examination Report at 3; see also December 2018 VA Form 646 at 3-4 (providing statement of Veteran's partner observing symptoms of physical and psychiatric conditions); see also August 2020 VA Form VR-58 (noting entitlement to VRE program and serious employment handicap but deferring determination as to feasibility "as a result of... uncontrolled diabetes and mental health status"). The Board has considered the doctrine of reasonable doubt and finds that it is applicable to this claim because the evidence of record discussed above is in equipoise with the SSA's determination that the Veteran is not disabled. 38 U.S.C. § 5107. The assignment of a TDIU is therefore warranted. 38 C.F.R. §§ 3.340, 3.341, 4.16. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, 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.