Citation Nr: 23014107 Decision Date: 03/08/23 Archive Date: 03/08/23 DOCKET NO. 19-02 896 DATE: March 8, 2023 REMANDED Entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. Entitlement to service connection for obstructive sleep apnea to include as due to service-connected disabilities is remanded. Entitlement to service connection for an acquired psychiatric disorder including major depressive disorder, generalized anxiety disorder and unspecified insomnia disorder to include as due to service-connected disabilities is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from October 1990 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2014, October 2018, and September 2020 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). These issues were previously before the Board in February 2019 at which time the Board remanded for further development of the record, including obtaining records from the Social Security Administration (SSA) and June 2017 sleep study results in Vista Imaging. In addition, the Board broadened the Veteran's claim for PTSD to include any acquired psychiatric disorder that may be reasonably encompassed by the Veteran's description of the claim, his symptoms, and other information of record. Clemons v. Shinseki, 23, Vet. App. 1, (2009). 1. Entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. An October 2014 rating decision granted service connection for bilateral hearing loss with an evaluation of 0 percent effective November 14, 2013. The Veteran was afforded a VA examination for hearing loss in October 2014. Audiological testing results were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 55 55 53 LEFT 45 55 55 65 55 Speech Discrimination Score (Maryland CNC word list was recorded as 84 percent right ear; 80 percent left ear. These results warrant a noncompensable rating under 38 C.F.R. § 4.85. The Veteran has asserted that he is entitled to a compensable evaluation for hearing loss. As the most recent VA examination for hearing loss occurred in October 2014, the Board finds that a remand is required to provide the Veteran with a VA examination to establish the current severity level of his bilateral hearing loss. 2. Entitlement to service connection for obstructive sleep apnea to include as due to service-connected disabilities is remanded. Pursuant to the Board's July 2019 remand decision, a June 2017 sleep study was associated with the file and establishes that the Veteran is diagnosed with sleep apnea and prescribed a CPAP machine. In September 2020, a VA medical opinion was submitted. The examiner opined that the Veteran's sleep apnea is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected hearing loss, tinnitus, and headache disabilities. The examiner also opined that the Veteran's sleep apnea is not aggravated beyond its natural progression by a service-connected condition. The rationale was that these conditions are not medically related. The examiner stated that obstructive sleep apnea is a separate entity entirely from the hearing loss, tinnitus, headache and unrelated. The examiner stated that a thorough review of medical literature failed to demonstrate a causal relationship. A nexus has not been established. The examiner stated that the most common cause of obstructive sleep apnea is excess weight and obesity, which is associated with soft tissue of the mouth and throat. During sleep, when throat and tongue muscles are more relaxed, this soft tissue can cause the airway to become blocked. In addition to obesity, other anatomical features associated with obstructive sleep apnea -- many of them hereditary -- include a narrow throat, thick neck, and round head. mayoclinic.org VA's Office of General Counsel has held that a claim for secondary service connection may rest on obesity as an intermediate step between the claimed secondary disability and the service-connected primary disability. VAOPGCPREC 1-2017; Walsh v. Wilkie, 32 Vet. App. 300, 306 (2020). In Garner v. Tran, 33 Vet. App. 241 (2021), the U.S. Court of Appeals for Veterans Claims (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 provided the following non-exhaustive list of considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step: (1) mobility limitations or reduced physical activity as a result of a service-connected physical disability; (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 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 Board notes that review of the Veteran's VA medical records document a target weight of 176 lbs and obesity and weight gain noted as 224 lbs in March 2016; 236 lbs in August 2016; 260 lbs in June 2017; and 259 lbs in October 2020. As the VA examiner generally attributed sleep apnea to obesity, the Board finds that the rationale is inadequate as it notes obesity as a cause of sleep apnea but does not address whether the Veteran's obesity resulted from a service-connected disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes in particular that the Veteran was service connected for migraines in July 2020 with a 30 percent evaluation assigned based on characteristic prostrating attacks occurring on an average once a month over last several months. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). A remand is required for an addendum opinion addressing whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any of the Veteran's service-connected disabilities are related to obesity that in turn caused or aggravated the Veteran's sleep apnea. 3. Entitlement to service connection for an acquired psychiatric disorder including major depressive disorder, generalized anxiety disorder and unspecified insomnia disorder to include as due to service-connected disabilities is remanded. The Board finds that a remand is required because the Veteran's claim for an acquired psychiatric disorder including generalized anxiety disorder and unspecified insomnia disorder is inextricably intertwined with his appeal for service connection for sleep apnea caused by obesity due to a service-connected disability and the proposed development may impact the issue of entitlement to service connection for this claim. The Board notes that the December 2019 VA examiner identified medical diagnoses relevant to the understanding or management of the Veteran's mental health disorder as obstructive sleep apnea, obesity, and chronic pain. He noted that these conditions interfere with quality of sleep, ability to exercise/move readily, and contribute to negative mood. Further, subsequent to this medical opinion, a July 2020 Decision Review Officer decision granted entitlement to service connection for migraines with an evaluation of 30 percent effective November 14, 2013 based on characteristic prostrating attacks. The Board notes pursuant to the prior remand, SSA medical records were submitted wherein a neuropsychologist found that the onset of the Veteran's psychiatric problems is atypical and "suggestive of a sudden neuropathological event." On remand, an addendum opinion should therefore be requested addressing whether the Veteran's service-connected disabilities, including migraines and chronic pain caused thereby, caused or aggravated his acquired psychiatric disorder. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to a TDIU was most recently denied in September 2020. Favorable Findings identified in this decision included that the Veteran is not working. The records indicate he last worked in 2009 as a delivery driver. The Veteran's claim for a TDIU is inextricably intertwined with his appeals for service connection for sleep apnea and an acquired psychiatric disorder and for an increased rating for hearing loss, and the proposed development may impact the issue of entitlement to a TDIU. Therefore, remand is also required for this claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The AOJ should schedule an examination and medical opinion to determine the current level of severity of the Veteran's service-connected hearing loss. 2. The AOJ should request an addendum opinion addressing whether the medical evidence draws an association or suggests a relationship between a service-connected disability, to include migraines, and the Veteran's obesity, or weight gain resulting in obesity, and, and if so whether such obesity caused or aggravated the Veteran's sleep apnea. 3. The AOJ should request an addendum opinion addressing whether at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that an acquired psychiatric disorder, including generalized anxiety disorder and unspecified insomnia disorder, was caused or aggravated by service-connected disabilities, to include migraines. 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.