Citation Nr: 22017986 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 19-25 435 DATE: March 27, 2022 ORDER As new and material evidence has been submitted regarding the claim for service connection for sleep apnea, the Veteran's claim is reopened. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected major depressive disorder, is remanded. FINDINGS OF FACT 1. By an October 2017 rating decision, the Veteran's claim for service connection for sleep apnea as secondary to major depressive disorder was denied in part on the basis that service connection had not yet been established for a major depressive disorder. 2. Evidence received since the October 2017 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating a claim for service connection for sleep apnea, to include as secondary to service-connected major depressive disorder. CONCLUSIONS OF LAW 1. The October 2017 rating decision denying the Veteran's claim for service connection for sleep apnea is final. See 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2020). 2. New and material evidence sufficient to reopen the Veteran's claim for service connection for sleep apnea has been submitted. See 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2004 to January 2009. In October 2021, he had a hearing before the undersigned Veterans Law Judge. As an initial matter, the Board notes that the June 2019 statement of the case (SOC) also included the issue of entitlement to service connection for a major depressive disorder, to include video game addition. In May 2020, the Regional Office (RO) issued a rating decision granting service connection for major depressive disorder. This decision was a complete grant of benefits with respect to the issue of service connection pertaining to major depressive disorder, and the issue is no longer on appeal before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2020). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). By an October 2017 rating decision, the Veteran's claim for service connection for sleep apnea was denied in part on the basis that service connection had not yet been established for a major depressive disorder. At the time of this denial, the Veteran's service treatment records, military personnel records, post-service medical records, and statements were considered. The new evidence submitted since this denial consists primarily of statements from the Veteran, post-service medical records, and a May 2020 rating decision granting service connection for major depressive disorder. As the evidence of record now shows that the Veteran has been granted service connection for a major depressive disorder and the RO specifically denied the Veteran's sleep apnea claim in October 2017 in part because service connection could not be granted for sleep apnea as secondary to a nonservice-connected disability, the Board finds that this newly submitted evidence relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea. As such, the claim for service connection for sleep apnea is reopened. However, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REMAND below. REASONS FOR REMAND The Veteran is seeking service connection for sleep apnea. The Veteran has indicated throughout the course of this appeal that his sleep apnea began during service. In a December 2021 statement, his wife also attested that she witnessed his sleep issues begin during service. In the alternative, he has indicated that his sleep apnea could be related to his service-connected major depressive disorder. Specifically, at the October 2021 hearing, the Veteran testified that his depression caused weight gain, which has resulted in his sleep apnea. Notably, the Veteran's VA treatment records reflect that he has been diagnosed with morbid obesity. See VA treatment record, January 2021. In a December 2018 Mental Disorders Disability Benefits Questionnaire (DBQ), the Veteran was noted as having chronic sleep impairment. In a December 2018 Sleep Apnea DBQ, the Veteran was noted as having a diagnosis of sleep apnea dating back to 2015. The Veteran reported that his sleep apnea began during service. In a December 2018 VA opinion, the examiner determined that the Veteran's sleep apnea is less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner noted that depression/psychiatric illness does not cause obstructive sleep apnea. It can cause insomnia but that is different than obstructive sleep apnea. With regard to the Veteran's assertion regarding his weight gain, the Board observes that obesity is not considered a disease for purposes of VA benefits. See VAOPGCPREC 1-2017 (holding the "longstanding policy of [VA], that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis, is consistent with title 38, United States Code" and "[o]besity per se is not a 'disability' for purposes of 38 C.F.R. § 3.310"). However, although obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131, and therefore may not be service connected on a direct or secondary basis, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis (1) if a previously service-connected disability caused him to become obese; (2) that obesity was a substantial factor in causing secondary disability; and (3) the secondary disability would not have occurred but for the obesity. See VAOPGCPREC 1-2017. In Garner v. Tran, the United States Court of Appeals for Veterans Claims (CAVC) concluded that in order to reasonably raise the theory of secondary service connection via obesity as an intermediate step, there must be some evidence in the record that draws an association or suggests a relationship between the Veteran's obesity, or weight gain resulting in obesity, and a service-connected disability. Garner v. Tran, 33 Vet. App. 241 (2021). Conversely, the CAVC determined that incidental references to obesity, or weight gain resulting in obesity, are insufficient to reasonably raise this theory of entitlement. In that decision, the CAVC also provided a list of six non-exhaustive considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step: mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; side effects of medication (e.g., weight gain), where the medication is prescribed for a service connected disability; treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; lay statements by a Veteran attributing weight gain or obesity to the service-connected disability; and statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability. In light of the Veteran's hearing testimony that his weight gain causing his sleep apnea is related to his service-connected major depressive disorder, the Board finds that an additional medical opinion is needed on this matter to address this assertion. Moreover, the Board finds that the December 2018 VA opinion did not discuss the Veteran's assertion that his sleep apnea began during service, nor did the opinion discuss the possibility that his sleep apnea was aggravated by his service-connected major depressive disorder. As such, the Board finds that an addendum opinion should be obtained on this matter. Additionally, on remand, all outstanding VA treatment records should be associated with the claims file as well. The matters are REMANDED for the following action: 1. Associate with the claims file all outstanding treatment records from the VA Eastern Kansas Health Care System from April 2021 to the present. 2. Obtain an addendum medical opinion regarding the etiology of the Veteran's sleep apnea. Different VA examiners may be required to address different questions related to this opinion. Upon review of the claims file, the examiner(s) should respond to the following: (a.) Is it at least as likely as not that the Veteran's sleep apnea began during, or was caused or aggravated by, his active service? In rendering this opinion, the examiner should specifically address the Veteran's and his wife's assertions that his sleep problems began during service. (b.) Is it at least as likely as not that the Veteran's sleep apnea was caused or aggravated by his service-connected major depressive disorder? In rendering this opinion, the examiner should consider the medical literature submitted by the Veteran regarding depression and sleep apnea (receipt date 12/3/21), as well as the December 2021 assertions from the Veteran's representative that the Veteran's sleep problems are being partially treated with an anti-depressant, Mirtazapine. (c.) Is it at least as likely as not that the Veteran's service-connected major depressive disorder caused the Veteran to become obese or aggravated the Veteran's obesity? In rendering an opinion, the examiner should specifically address the Veteran's assertions that his depression ultimately led to his obesity. (d.) If, and only if, the answer to question (c) is affirmative, then proceed to the following. If, however, the answer to question (c) is negative, no further opinions are needed. (e.) If so, was the obesity as a result of the service-connected major depressive disorder a substantial factor in causing or aggravating sleep apnea? (f.) If so, is it the case that the Veteran's sleep apnea would NOT have developed but for that obesity? If additional testing or examination is needed to render the above-requested opinions, such should be scheduled. The examiner(s) should provide a complete rationale for all opinions provided. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.