Citation Nr: 22016333 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 11-21 045A DATE: March 21, 2022 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disability, to include resulting obesity, is remanded. Entitlement to service connection for hypertension, to include as due to in-service exposure to an herbicide agent, or as secondary to service-connected disability, to include resulting obesity, is remanded. REASONS FOR REMAND The Veteran had active service from June 1962 to March 1964, to include in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on an appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, the Agency of Original Jurisdiction (AOJ). The Veteran testified during a travel Board hearing before the undersigned Veterans Law Judge in May 2014. A transcript of the hearing has been associated with the Veteran's claims file. These issues were previously before the Board in July 2014, October 2016, January 2018, December 2019, and September 2020, at which time the Board remanded them for further development. These issues were most recently before the Board in January 2021, at which time the Board denied the Veteran's claim for entitlement to service connection for obstructive sleep apnea, claimed as secondary to a service-connected disability, to include resulting obesity and his claim for entitlement to service connection for hypertension, claimed as due to in-service exposure to an herbicide agent, or in the alternative, as secondary to a service-connected disability, to include resulting obesity. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In November 2021, the Court issued an order granting the parties' Joint Motion for Remand (JMR), vacated the Board's January 2021 decision, and remanded the case back to the Board for action consistent with the terms of the joint motion. 1. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disability, to include resulting obesity 2. Entitlement to service connection for hypertension, to include as due to in-service exposure to an herbicide agent, or as secondary to service-connected disability, to include resulting obesity In the JMR, the parties agreed that the Board erred in denying service connection for obstructive sleep apnea (OSA) by failing to obtain an examination report that substantially complied with the December 2019 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in December 2019, the Board remanded for a medical opinion addressing "[w]hether the Veteran has any current or previously-diagnosed [OSA] that was aggravated by the Veteran's service-connected PTSD." Subsequently, a January 2020 examiner submitted a medical opinion that the "claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness." The parties agreed that this opinion does not provide a response to the correct aggravation question, as the Board instructed the examiner to provide an opinion based on aggravation by the Veteran's service-connected PTSD, not service generally. 38 C.F.R. §§ 3.304, 3.310. The Court remanded for the Board to ensure that the Veteran is provided with an adequate VA opinion that complies with the terms of the Board's December 2019 remand and adequately addresses whether his OSA is related to his service-connected PTSD. Stegall, 11 Vet. App. at 271. In addition, the parties agreed that the Board erred in denying service connection for OSA and hypertension when it failed to ensure that the VA examination relied upon was adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, in its September 2020 remand, the Board requested an opinion whether it is at least as likely as not that the Veteran's "obesity is caused by or related to" his service-connected disabilities or the medications prescribed for them. In October 2020 a VA medical opinion was submitted whereby the examiner opined that the Veteran's obesity was less likely than not due to or the result of his service-connected conditions. As rationale for his negative nexus opinion, the examiner reasoned that the Veteran's service-connected disabilities, including their medications, were not the cause of the Veteran's obesity. Further, the examiner reasoned that the Veteran suffered from nonservice-connected hypothyroidism which is the most likely cause of obesity. The parties agreed that this rationale did not address whether the Veteran's obesity was aggravated by his service-connected disabilities. Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020). The Court remanded for the Board to obtain an opinion as to whether the Veteran's service-connected disabilities, or their medications, aggravated his obesity. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In compliance with the Court's Order and the JMR, the Board remands for additional medical opinions. The matters are REMANDED for the following action: The AOJ should request the following opinions from an appropriate clinician, who after review of the entire claims file, should provide the following opinions: (a.) Whether the Veteran's obstructive sleep apnea is aggravated by the Veteran's service-connected PTSD. (b.) Whether it is at least as likely as not that the Veteran's obesity is aggravated by his service-connected disabilities (particularly his PTSD and diabetes mellitus, type II) and/or medications prescribed for such. (c.) If the response to part (b) is affirmative, provide an opinion regarding whether the Veteran's obstructive sleep apnea is aggravated by the obesity stemming from his service-connected disabilities and/or medications prescribed for such. (d.) If the response to part (b) is affirmative, provide an opinion regarding whether the Veteran's hypertension is aggravated by the obesity stemming from his service-connected disabilities and/or medications prescribed for such. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.