Citation Nr: 22018451 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-37 876 DATE: March 29, 2022 ORDER The appeal with respect to entitlement to service connection for a headache disability is dismissed. The appeal with respect to entitlement to service connection for bilateral hearing loss is dismissed. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) with unspecified depressive disorder and bilateral plantar fasciitis with severe pes planus, is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) as secondary to service-connected posttraumatic stress disorder (PTSD) with unspecified depressive disorder and bilateral plantar fasciitis with severe pes planus is remanded. FINDINGS OF FACT 1. On the record at a September 2021 hearing, prior to the promulgation of an appellate decision on the matter, the Veteran requested that the appeal with respect to entitlement to service connection for a headache disability be withdrawn. 2. On the record at a September 2021 hearing, prior to the promulgation of an appellate decision on the matter, the Veteran requested that the appeal with respect to entitlement to service connection for bilateral hearing loss be withdrawn. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for a headache disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1994 to July 1998, and in the United States Army from August 2000 to November 2007. These matters come to the Board of Veterans' Appeals (Board) on appeal from March 2015 and October 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office. In September 2021, the Veteran and his spouse testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. 1. Entitlement to service connection for a headache disability 2. Entitlement to service connection for bilateral hearing loss An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Only an appellant, or an appellant's authorized representative, may withdraw an appeal. Id. Appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable VA file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. Id. In this case, on the record at the September 2021 hearing, prior to the promulgation of a Board decision, the Veteran requested that his appeals with respect to entitlement to service connection for a headache disability and bilateral hearing loss be withdrawn. That request has since been reduced to writing in a transcript, received by the Board, which includes the Veteran's name and his VA file number. Under the circumstances, the Board finds that the requirements for a proper withdrawal have been satisfied. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). As the Veteran has withdrawn his appeals of these issues, there remain no allegations of error of fact or law for appellate consideration with respect to these issues. Accordingly, the appeal of these issues must be dismissed. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks to establish service connection for sleep apnea, to include as secondary to service-connected PTSD with unspecified depressive disorder and/or bilateral plantar fasciitis with severe pes planus. He has advanced argument to the effect that his sleep apnea is due to weight gain that is attributable to his service-connected disabilities. The Veteran was afforded a VA examination for sleep apnea in May 2017. The examiner noted a confirmed diagnosis of obstructive sleep apnea, but ultimately found that he could not conclude that the condition began in service without resorting to mere speculation. In a March 2019 VA sleep medicine consultation note, the treating clinician indicated that there was a relationship between sleep apnea and PTSD, "specifically in reference to weight gain as a complication of his response to PTSD and its multifactorial symptomology." The clinician further diagnosed the Veteran with rapid eye movement (REM) sleep behavior disorder, and noted that the condition was secondary, and probably associated with, his antidepressant use. In a February 2020 VA examination, an examiner noted that the Veteran had a "markedly elevated [body mass index]," and that morbid obesity was the primary etiology for his sleep apnea. At the September 2021 Board hearing, the Veteran's attorney asserted that the Veteran's service-connected bilateral foot disabilities and PTSD with unspecified depressive disorder resulted in significant weight gain. The attorney noted that the Veteran began to struggle with issues with his weight toward the end of his service, and that at that time his feet prevented him from engaging in as much physical activity as before. The Veteran testified that his foot problems made it difficult for him to complete physical training (PT) during service and reported that he gained approximately two hundred pounds after his service separation. The attorney also posited that the Veteran's weight gain may have been attributable to medication that he took for his psychiatric conditions. In an October 2021 private medical opinion, a physician noted that the Veteran's wife indicated in a December 2016 email that he began to have issues sleeping shortly after returning from his first tour of duty in Iraq in 2004. She claimed that she would frequently have to get up at night, turn on the lights, and yell the Veteran's name loudly to wake him up and "try to get him settled down while he was having nightmares and violent dreams with yelling and screaming." The physician stated that it was not possible to connect sleep apnea to the Veteran's military service because it was not clear how soon his symptoms started after his deployment. The physician further concluded that it was apparent from his claims file that the Veteran had major depressive disorder and PTSD, and that it was difficult to differentiate which condition was causing his symptoms. The physician opined that it was as likely as not that the Veteran's sleep apnea was secondary to his PTSD. At the same time, the physician noted that there was little evidence in the claims file to support the service connection claim. In that regard, the physician stated that there was "extensive medical literature" which supported the Veteran's claim, and included reference to multiple articles and studies that addressed the relationship between PTSD and sleep apnea. None of the articles or studies were submitted into evidence. According to the physician, the articles indicated, among other things, that individuals with PTSD had difficulty with adherence to CPAP (continuous positive airway pressure) therapy and were at an increased risk of developing sleep apnea. The physician observed that one article also stated that excessive weight was one of the biggest risk factors for sleep apnea, and another article discussed the relationship between obesity and PTSD. None of the referenced literature specifically found a distinct causal link between the two conditions, and the examiner did not discuss the Veteran's individual risk factors as they related to the findings set out in the studies he cited. The Board notes that although service connection is not allowed for obesity on its own, obesity can act as an "intermediate step" to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See VAOPGCPREC 1-2017. The VA General Counsel has indicated that establishing service connection in a case such as the Veteran's requires resolution of three issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity due to the service-connected disability was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. Id. In a more recent decision, the United States Court of Appeals for Veterans Claims (Court) modified the analysis set out in the General Counsel's opinion, holding that in considering whether obesity is an "intermediate step," consideration must be given to whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310. Walsh v. Wilkie, 32 Vet. App. 300 (2020). In Garner v. Tran, 33 Vet. App. 241 (2021), the Court held that to reasonably raise a theory of secondary service connection via obesity as an intermediate step, there must be some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected condition. The Court set forth a non-exhaustive list of considerations that could reasonably give rise to such a theory, including: (1) mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); (2) reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; (3) side effects of medication (e.g., weight gain) where the medication is prescribed for a service-connected disability; (4) treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; (5) lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and (6) statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability. The Court explained the critical commonality among its nonprecedential decisions was that "there is some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected condition." Here, the Board finds that a theory of secondary service connection via obesity as an intermediate step has been reasonably raised. However, none of the medical opinions of record address the questions set out in the General Counsel's opinion with sufficient specificity as to allow for an award of service connection on that basis. Nor are they otherwise adequate to support such an award. Additional development is required. See, e. g., Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). 2. Entitlement to service connection for GERD is remanded. The Veteran seeks to establish service connection for GERD as secondary to service-connected PTSD with unspecified depressive disorder and/or bilateral plantar fasciitis with severe pes planus. As with his sleep apnea claim, he has advanced argument to the effect that his GERD is due to weight gain that is attributable to his service-connected disabilities. In February 2020, a VA examiner concluded that the Veteran's GERD was less likely than not related to medications taken for his service-connected foot disabilities. The examiner noted that the Veteran had a "markedly elevated [body mass index]," and that morbid obesity was the primary etiology for his GERD. Here, the Board finds that a theory of secondary service connection via obesity as an intermediate step has been reasonably raised. However, as above, none of the medical opinions of record address the questions set out in the General Counsel's opinion with sufficient specificity as to allow for an award of service connection on that basis. Additional development is required. See Barr, supra. These matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any non-VA care providers who may possess new or additional evidence pertinent to the issues remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to an appropriately qualified clinician for purposes of obtaining a medical opinion as to the etiology of the Veteran's sleep apnea. After reviewing the record, the clinician should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's sleep apnea had its onset in, or is otherwise attributable to, his period(s) of active service. If it is the clinician's opinion that it is unlikely that the Veteran's sleep apnea had its onset in, or is otherwise attributable to, service, the clinician should offer a further opinion as to whether it is at least as likely as not that sleep apnea has been (a) caused or (b) aggravated (i.e., worsened beyond natural progression) by the Veteran's service-connected PTSD with unspecified depressive disorder and/or bilateral plantar fasciitis with severe pes planus, to include as having been caused or aggravated by medications used for treatment of the symptoms of his service-connected disabilities. In addition to addressing secondary service connection generally, in terms of both secondary causation and aggravation, the clinician should also offer an opinion as to each of the following questions: a. Is it at least as likely as not that the Veteran's service-connected PTSD with unspecified depressive disorder and/or bilateral plantar fasciitis with severe pes planus caused him to become obese, or aggravated his obesity, whether by interfering with his ability to exercise, interfering with his ability to moderate calorie consumption, or otherwise? b. If so, is it at least as likely as not that the obesity due to the service-connected disability was a substantial factor in causing the Veteran's sleep apnea? c. If so, is it at least as likely as not that the Veteran's sleep apnea would not have occurred but for the obesity caused by service-connected disability? In so doing, the clinician should consider and discuss the October 2021 private medical opinion, reference above. The clinician should also discuss the March 2019 treatment record in which the treating clinician indicated that the Veteran had a sleep disorder that could be related to medication for his psychiatric disabilities. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the clinician selected to offer the requested opinions. A complete medical rationale for all opinions expressed must be provided. If the clinician cannot provide the requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. Specifically, the clinician must indicate whether there was a further need for information or testing, or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large 4. Also arrange to provide the record on appeal to an appropriately qualified clinician for purposes of obtaining a medical opinion as to the etiology of the Veteran's GERD. After reviewing the record, the clinician should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that GERD has been (a) caused or (b) aggravated (i.e., worsened beyond natural progression) by the Veteran's service-connected PTSD with unspecified depressive disorder and/or bilateral plantar fasciitis with severe pes planus, to include as having been caused or aggravated by medications used for treatment of the symptoms of his service-connected disabilities. In addition to addressing secondary service connection generally, in terms of both secondary causation and aggravation, the clinician should also offer an opinion as to each of the following questions: a. Is it at least as likely as not that the Veteran's service-connected PTSD with unspecified depressive disorder and/or bilateral plantar fasciitis with severe pes planus caused him to become obese, or aggravated his obesity, whether by interfering with his ability to exercise, interfering with his ability to moderate calorie consumption, or otherwise? b. If so, is it at least as likely as not that the obesity due to the service-connected disability was a substantial factor in causing the Veteran's GERD? c. If so, is it at least as likely as not that the Veteran's GERD would not have occurred but for the obesity caused by service-connected disability? The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the clinician selected to offer the requested opinions. A complete medical rationale for all opinions expressed must be provided. If the clinician cannot provide the requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. Specifically, the clinician must indicate whether there was a further need for information or testing, or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Ferguson, 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.