Citation Nr: 22013380 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-43 372 DATE: March 9, 2022 REMANDED Entitlement to service connection for cellulitis is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to total disability for individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1975 to March 1979. These matters are on appeal to the Board of Veterans' Appeals (Board) from an August 2015 rating decision. The claims were remanded by the Board in March 2019 to provide the Veteran with a VA examination for his cellulitis of the left lower extremity. His sleep apnea claim was deemed inextricably intertwined with a psychiatric claim because the Veteran contended that his PTSD caused or aggravated his sleep apnea. His TDIU claim was also deemed inextricably intertwined with the above claims. Service connection for PTSD with major depressive disorder was granted in an October 2021 Board decision. The claims were again remanded by the Board in October 2021. Regarding the cellulitis claim, the Board found that, in reaching a medical conclusion, the September 2019 VA examiner did not consider the Veteran's own lay statements, lay statements submitted by his friends and families, as well as 1999 and 2005 treatment records and the fact that a leg disability claim was submitted within a year of discharge of service. Thus, the claim was remanded for a new examination. A new VA medical opinion was warranted for the Veteran's sleep apnea claim because the Veteran had recently become service connected for PTSD, and the September 2019 VA examiner concluded there was no relation because the underlying PTSD was not service connected. Finally, the TDIU claim was remanded pending the assignment of a disability rating for the PTSD claim. The Board regrets the additional delay, but for the reasons explained below, the claims must be remanded once more to ensure each contention raised by the Veteran has been adequately addressed. Particularly considering the heightened duty to review all evidence and contentions when there are unavailable service treatment records (STRs), remand is warranted. See Cuevas v. Principi, 3Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 1. Entitlement to service connection for cellulitis The Veteran contends that his recurrent cellulitis of the left leg is due to injuries incurred in service. While his contentions have varied slightly, the overall gist of his assertions throughout the appeal period is that he suffered a gash or paralysis of the leg(s) while stationed overseas, either in Japan or the Philippines. The November 2021 VA examiner opined that the Veteran's cellulitis is less likely than not related to service because there is no documentation of symptoms or conditions during or shortly after service of cellulitis. The examiner stated that he reviewed and considered a buddy statement written by S.B.; however, S.B. referred to the issues present in the years 2000 to 2010, and the Veteran served from 1975 to 1979. The buddy statement provided by the Veteran's niece did not specify a time range. The claim filed within one year following separation, and his treatment for cellulitis in 2000 and 20005 were reviewed. However, the Veteran was in service from 1975 to 1979. There was no documentation, symptoms, or condition during or shortly after service of cellulitis; thus, the examiner provided a negative nexus opinion. While the examiner did address the lay statements, post-service treatment records, and early claim as requested, he repeatedly emphasizes that there was no documentation in service. It is clear the lack of documentation in the STRs or shortly after service formed the basis for the examiner's conclusion. However, there has been a finding of unavailability of STRs, so there are none to review albeit his entrance examination. Even if they were available, VA medical nexus opinions based solely on the absence of documentation in service is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the veteran's report of in-service injury and instead relied on the absence of evidence in the veteran's STRs to provide a negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology not supported by contemporaneous clinical evidence does not render them inherently not credible). Additionally, the Veteran has contended that his cellulitis may be caused or aggravated by his service-connected PTSD through obesity as an intermediary step. While obesity itself is ineligible for service connection, it may be an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis. See VA. Off. Gen. Couns. Prec. Op. 1-2017, at 2-3. The pertinent inquiries are (1) whether the service-connected disabilities caused obesity (or aggravated obesity); (2) whether the obesity or aggravation of obesity as a result of the service-connected disability/disabilities was a substantial factor in causing the claimed disability, and (3) whether the claimed disability would not have occurred but for the obesity caused/aggravated by the service-connected disability. Id.; see also Walsh v. Wilkie, 32 Vet. App. 300 (2020). In February 2021 correspondence, the Veteran contended that his obesity was caused or aggravated by his service-connected PTSD, and his obesity weakened his immune system, making him more susceptible to developing cellulitis. Thus, the Veteran has raised a theory of service connection on a secondary basis, and this theory must be developed. 2. Entitlement to service connection for sleep apnea In a November 2021 VA opinion, the examiner opined that it was less likely than not that the Veteran's sleep apnea is proximately due to his service-connected PTSD. The examiner reviewed medical literature submitted by the Veteran indicating a link between the two conditions. The examiner explained that although the studies seem to indicate a link between disordered sleeping/sleep apnea and PTSD/depression, the relationship appears to suggest that PTSD is aggravated by sleep apnea and not the other way around. The examiner cited to specific portions of the literature which supported his conclusion. For example, the report stated that it was possible that sleep deprivation and increased daytime somnolence increased susceptibility to post traumatic flashbacks, and there is evidence that sleep deprivation triggers panic attacks. It was concluded that reducing the number of arousals during sleep and of excessive daytime somnolence should be emphasized in the treatment of PTSD. The examiner further reasoned that it was more likely that factors such as weight and obesity are responsible for the development of the sleep apnea. While the Board makes no finding as to the probative value of the opinion at this juncture, the Veteran has also contended that his sleep apnea is directly related to service, as well as secondarily related to PTSD through obesity as an intermediary step. Both theories need to be further developed, particularly in view of the 2021 examiner's opinion that the Veteran's obesity was more likely responsible for the development of his sleep apnea. 3. Entitlement to a TDIU In his VA Form 21-8940, the Veteran indicated that his diabetes, sleep apnea, PTSD, back condition, fibromyalgia, hypertension, and tinnitus were the disabilities that prevented him from employment, though he is currently only service-connected for PTSD and tinnitus. While the Veteran meets the schedular criteria, entitlement to a TDIU requires a consideration of whether all his service-connected disabilities, collectively, render him unemployable. Thus, out of fairness to the Veteran, the TDIU claim is deemed inextricably intertwined with the sleep apnea claim, because its resolution could be contingent on whether the Veteran is found entitled to a TDIU. See Harris v. Derwinski, 1 Vet. App.180, 183 (1991). The claim is therefore remanded as well. The matters are REMANDED for the following action: Obtain new medical opinion(s) for the cellulitis and sleep apnea claims, accompanied by an in-person examination if deemed necessary. As it is the Board's responsibility to weigh the competency and credibility of the lay evidence, the Board will tailor the following requests to the medical evidence needed to render a decision: For sleep apnea: (a) From a medical standpoint, irrespective of whether it is shown in the STRs but upon consideration of ALL available evidence, to include lay statements, is it at least as likely as not that the Veteran's current sleep apnea had its onset in service or is otherwise related to service? (b) Is it at least as likely as not that the Veteran's PTSD caused or aggravated his obesity? If so, was the obesity a substantial factor in the onset of sleep apnea? If so, would the sleep apnea have occurred but for the obesity caused or aggravated by PTSD? In rendering the above opinion, the examiner must consider and address the 2021 examiner's finding that the Veteran's sleep apnea is more likely related to his obesity than PTSD. For cellulitis: (a) From a medical standpoint, irrespective of whether it is shown in the STRs but upon consideration of ALL available evidence (to include lay statements, medical records, and the filing of a claim shortly after service) is it at least as likely as not that the Veteran's recurrent cellulitis stems from an in-service leg wound? (b) If it is determined that PTSD caused or aggravated the Veteran's obesity, was the obesity a substantial factor in the onset of cellulitis, in that it weakened the Veteran's immune system rendering him more susceptible to developing cellulitis? If so, would the cellulitis have occurred but for the obesity caused or aggravated by PTSD? It is emphasized that opinions based solely on the absence of documentation in service is inadequate. In this case, the STRs are unavailable. Reports of in-service injuries or symptoms are not deemed inherently not credible solely because they are not supported by contemporaneous evidence. A thorough medical rationale should be provided for each medical conclusion rendered. L.M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.