Citation Nr: 23044598 Decision Date: 08/10/23 Archive Date: 08/10/23 DOCKET NO. 19-34 661 DATE: August 10, 2023 ORDER Entitlement to secondary service connection for headaches is granted. Entitlement to service connection for hypertension is denied. Entitlement to service connection for gastric ulcer is denied. Entitlement to a disability rating in excess of 10 percent for tinnitus is denied. Entitlement to an initial disability rating of 10 percent for hemorrhoids is denied. Entitlement to an effective date earlier than January 15, 2013, for the grant of service connection for tinnitus is denied. Entitlement to an effective date earlier than January 15, 2013, for the grant of service connection for hemorrhoids is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. The Veteran's headaches are caused by service-connected tinnitus. 2. The Veteran's hypertension was not shown in service or within one year of service discharge; and the evidence does not establish that the Veteran's diagnosed hypertension is related to active service. 3. The Veteran's gastric ulcers were not shown in service or within one year of service discharge; and the evidence does not establish the Veteran's diagnosed gastric ulcers are related to active service. 4. The Veteran's tinnitus has been assigned a 10 percent disability rating throughout the period on appeal, and such rating is the maximum available under the applicable schedular criteria. 5. Throughout the period on appeal, the Veteran's hemorrhoids are not large or thrombotic, irreducible, with excessive redundant tissue, evidence frequent recurrences. 6. The Veteran submitted an intent to file a claim form on October 7, 2013 for tinnitus. On January 15, 2014, the Veteran filed a formal claim for entitlement to service connection for tinnitus. 7. The Veteran submitted an intent to file a claim form on October 7, 2013 for hemorrhoids. On January 15, 2014, the Veteran filed a formal claim for entitlement to service connection for hemorrhoids. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches as secondary to tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. § 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for gastric ulcers have not been met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. § 3.303, 3.307, 3.309. 4. The criteria for entitlement to a disability rating in excess of 10 percent for bilateral tinnitus have not been met. 38 U.S.C. § 1155; 5107; 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. 5. The criteria for a rating higher than noncompensable for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, DC 7336. 6. The criteria for entitlement to an effective date earlier than January 15, 2013, for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400 (g). 7. The criteria for entitlement to an effective date earlier than January 15, 2013, for the grant of service connection for hemorrhoids have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400 (g). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1978 to February 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision from a Department of Veteran Affairs (VA) Regional Office (RO). Although the Veteran also initially appealed from the denial of service connection for hand conditions (non-specified, bilateral), that benefit was granted in a September 2019 rating decision. The Veteran did not appeal this issue in his substantive appeal in the November 2019 VA Form 9, therefore, this issue is currently not before the Board. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. Generally, service connection requires three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Sheddon v. Principi, 381 F.3d. 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to secondary service connection for headaches is granted. The Veteran contends his headaches began during active-duty service or is secondary to his depression and/or service-connected tinnitus. Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) a current disability exists and (2) the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In this matter, the Veteran has a current diagnosis of headaches, and is service-connected for tinnitus. Thus, the first element is met. In regard to the second element as to whether the current disability was either proximately caused by or proximately aggravated by a service-connected disability, there is evidence in favor of the claim. An October 2014 VA medical examiner provided a negative nexus medical opinion for direct service connection and did not address the issue of secondary service connection. As such, the October 2014 medical opinion is not probative on the secondary service connection matter. In December 2014, a private medical examiner reviewed the Veteran's medical history and opined the Veteran's depressive disorder and tinnitus more likely than not cause the Veteran's headaches. As the Veteran is not service-connected for depression, he cannot be secondarily service-connected for headaches by a non-service-connected claim. However, as previously explained, he is service-connected for tinnitus. Specifically, the private examiner explained that damage to the auditory system resulting in tinnitus can cause headaches and research has shown that in patients with tinnitus, frequency of headaches correlated with the severity of tinnitus symptoms. The Board finds this opinion to be probative of the inherently medical question before it. It provides a clear conclusion of a relationship between the Veteran's service-connected tinnitus and his headaches. It also provides the underlying reasons for the conclusion, to include supporting independent medical studies. Therefore, the Board affords this opinion significant probative weight. As the probative medical and lay evidence weighs in favor of the relationship between the Veteran's service-connected tinnitus and his current headache disability, the Board finds that service connection is warranted. 2. Entitlement to service connection for hypertension is denied. The Veteran contends he has hypertension that is due to military service. However, he has not alleged any in-service incident, disease or injury that led to his current diagnosis of hypertension. Moreover, service treatment records (STRs) do not indicate any complaints, treatment, or diagnosis of hypertension during his military service, nor show any consistent pattern of elevated blood pressure readings. There is no probative evidence in the record, including any lay statements, that would suggest that his current hypertension had its onset in service. The earliest clinical evidence of record documenting hypertension is on the Veteran's problem list in November 1998, almost 20 years after separation from service. See VBMS, document labeled CAPRI, receipt date 9/27/2019, pages 592 of 596. Therefore, although the Veteran has a current diagnosis of hypertension, without an in-service incurrence and nexus opinion linking his current hypertension to service, direct service connection is not warranted. The Veteran has not been afforded a VA examination with respect to his claim for service connection for hypertension. VA is obligated to provide an examination only when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). No examination is required in this case because the lay and medical evidence does not show that the claimed disability, or symptoms thereof, may be associated with the Veteran's active service. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service (typically one year); or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Hypertension is considered a chronic disability. However, the record does not demonstrate a diagnosis of hypertension within one year of separation, nor does it establish a continuity of symptomatology from service to the present. The Veteran has offered no lay statements of such continuity and the VA treatment records do not support one either. Therefore, presumptive service connection is not warranted. 3. Entitlement to service connection for gastric ulcer is denied. The Veteran contends he has a gastric ulcer disability that are due to military service. Per the October 2014 VA medical examination, the Veteran has a diagnosis of gastric ulcers. As such, the first element required for service connection for gastric ulcer has been met. With regard to service, the Veteran contends it is due to his diarrhea during military service. STRs document the Veteran's bouts of diarrhea during military service. However, they do not indicate any complaints, treatment, or diagnosis of gastric ulcer during his military service. In addition, while the Veteran now contends that he has a gastric ulcer disability that is related to service, he is not competent to make that medical determination or provide a nexus opinion in this case as the evidence does not show that he has the proper education, training, and expertise to render a diagnosis or etiology opinion on such a complex medical matter. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The earliest clinical evidence of a diagnosis of gastric ulcers in the record is in May 2000, when the Veteran reports he had bleeding gastric ulcer requiring surgery in 1989. See VBMS, document labeled CAPRI, receipt date 9/27/2019, pages 561 of 596. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d. 1330, 1333 (Fed. Cir. 2000). The Veteran was afforded a VA medical examination in October 2014 to determine the nature and etiology of his stomach condition. The medical examiner provided a negative nexus opinion and opined the Veteran's stomach condition (i.e., gastric ulcer) is less likely as not incurred in, caused by or related to the Veteran's complaints of diarrhea, abdominal cramps, bowel sounds, etc. The examiner documented that the Veteran self-reported he had a gastric ulcer, requiring surgery one year later. The examiner reviewed the Veteran's military and post-military medical records and explained there is no objective evidence the Veteran was diagnosed or treated for PUD during service, nor is there evidence of the Veteran being subject to gastric surgery contained within his STRs. Given the examiner reviewed the Veteran's military medical records and post-military medical records and provided a fact-supported rationale, the Board affords this medical opinion probative weight. Concerning presumptive service connection for chronic disabilities, the record does not demonstrate a diagnosis of a gastric ulcer within one year of separation, nor does it establish a continuity of symptomatology from service to the present. The Veteran has offered no lay statements of such continuity and the VA treatment records do not support one either. Rather his statements note onset around 1989, long after separation from service. Therefore, presumptive service connection is not warranted. Accordingly, for the reasons stated above, the Board finds that the persuasive evidence is against the claim for service connection for hypertension and gastric ulcer. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. INCREASED RATINGS Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). 4. Entitlement to a disability rating in excess of 10 percent for tinnitus is denied. The Veteran seeks an increased rating in excess of 10 percent for his service-connected tinnitus. His tinnitus is rated at 10 percent under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260, which is the maximum schedular rating. Diagnostic Code 6260 was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for "recurrent" tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2). As the Veteran is already in receipt of the maximum schedular rating for tinnitus, there is no basis to award an increased rating. The Board has considered the Veteran's contention that a higher rating is warranted. However, he has provided no reason for extraschedular consideration to be given, and the record does not raise any in and of itself. No other rating criteria are applicable. As such, the Veteran's claim for an increased rating greater than 10 percent for his service-connected tinnitus is denied. 5. Entitlement to an initial rating of 10 percent for hemorrhoids is denied. The Veteran is currently assigned a noncompensable percent rating for hemorrhoids under DC 7336. He contends that he is entitled to a higher rating. As a preliminary matter, the appeal period for the Veteran's claim is from January 15, 2014, plus the one-year "look back" period. See Gaston v. Shinseki, 605 F.3d. 979, 982 (Fed. Cir. 2010). Under DC 7336, a noncompensable rating is assigned for mild or moderate hemorrhoids. A 10 percent rating is assigned for large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences. A maximum 20 percent rating is assigned for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. Turning to the evidence of record, the Veteran was afforded a VA medical examination for hemorrhoids in October 2014. Here, he endorsed a history of surgical removal of hemorrhoids post military service. On examination, his hemorrhoids were assessed as mild or moderate, small external with no evidence of recent bleeding, which is consistent with the noncompensable rating. The examiner noted the Veteran had problems with hemorrhoids while in service, was given some suppositories, and had surgery at the Houston VAMC after service. The Board has determined that a higher 10 percent rating for hemorrhoids is not warranted during the course of the appeal, as the record fails to confirm large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences. Although the Veteran and his representative contend that the Veteran's hemorrhoids are more severe, they have not submitted any additional lay and/or medical evidence to substantiate their contentions. Furthermore, the Veteran's VA medical records do not document any information to corroborate their contentions. The Veteran's VA medical records confirm the Veteran's hemorrhoidectomy in March 2012, which was noted in the October 2014 VA medical examination. Subsequently, his VA medical records consistently document negative for hemorrhoids following the surgical procedure of the Veteran's hemorrhoid surgery. See VBMS, document labeled CAPRI, receipt date 9/27/2019, page 118 of 596. From the one-year look back period forward, the Veteran's medical treatment records do not document hemorrhoids that are large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences. For the foregoing reasons, the claim for increased rating must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the persuasive evidence is against assignment of a higher rating for the Veteran's hemorrhoids at any pertinent point, this doctrine is not applicable. See 38 U.S.C. § § 5107 (b); 38 C.F.R. § §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). EFFECTIVE DATE The effective date of an award of benefits is generally the date on which the claim was filed, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a). For disability compensation benefits, the effective date is established the day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2). For previously denied claims, it is set by the date of the claim to reopen, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). 1. Entitlement to an effective date earlier than January 15, 2013, for the grant of service connection for tinnitus, is denied. 2. Entitlement to an effective date earlier than January 15, 2013 for the grant of service connection for hemorrhoids, is denied. Service connection for tinnitus and hemorrhoids is currently effective from January 15, 2013. Upon review of the file, the Veteran's intent to file form was received by VA on October 7, 2013. His formal claim for service connection was received thereafter in January 2014. The regulation governing effective dates for service connection claims is clear: the effective date is the date of receipt of a claim, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400 (b)(2)(i). In other words, the date of receipt of the Veteran's intent to seek benefits is October 7, 2013. The evidence does not otherwise suggest an intent to file a service connection claim prior to this date, and the Veteran has provided no assertion as to why an earlier effective date is warranted. For claims filed prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413 (1999). There is a limited exception to the above general rule regarding the assignment of effective dates for original claims for compensation received from August 6, 2013, through August 5, 2015, and filed as a Fully Developed Claim. The exception was created by Section 506 of Public Law (PL) 112-154 (Fully Developed Claim initiative), which amended 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully developed, original claims for compensation received from August 6, 2013, through August 5, 2015. See HONORING AMERICA'S VETERANS AND CARING FOR CAMP LEJEUNE FAMILIES ACT OF 2012, 112 P.L. 154, 126 Stat. 1165, 1194 ("This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment"). As the Veteran's informal claim in this instance was received on October 7, 2013, this limited exception applies, which is why the Veteran was granted service connection from January 15, 2013, which is one year prior to the date of receipt of the claim. The effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See Lalonde v. West, 12 Vet. App. 377, 382-383 (1999). In summary, the Board finds that the criteria for an effective date earlier than January 15, 2013, for the grant of service connection for tinnitus and hemorrhoids have not been met. REASONS FOR REMAND 3. Entitlement to service connection for an acquired psychiatric disorder, to include depression, is remanded. The Veteran contends that he has depression, which is due to his military service. In October 2013, the Veteran submitted an intent to file for service connection for mental health conditions. In January 2014, the Veteran submitted his formal claim for mental conditions. Initially, with regard to the characterization of the Veteran's psychiatric disability claim, the Board notes that the AOJ characterized his claim as entitlement to service connection for mental health. However, in light of the medical evidence of record, the Board has recharacterized the claim more broadly as entitlement to service connection for an acquired psychiatric disorder, to include depression. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran's medical record does not currently establish a clear diagnosis for an acquired psychiatric disorder, to include depression, in accordance with 38 C.F.R. § 4.125 (2022). For VA compensation purposes, mental disorders must generally be diagnosed according to the Diagnostic and Statistical Manual of Mental Disorders (DSM). 38 C.F.R. § 4.125. The Veteran and his attorney contend the Veteran has depression. While the terms "depression" and "depressive symptoms" are repeatedly documented in his VA medical treatment records for mental health care, that is not the equivalent of a medical diagnosis for VA compensation purposes. The Veteran has not been afforded a VA medical examination to determine the nature and etiology of his depression. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 8186 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Veteran's attorney submitted two lay statements from the Veteran's friends, who have been acquainted with the Veteran since before his military service. See VBMS, document labeled Third Party Correspondence, receipt date 7/16/2020, pages 10 and 11 of 189. In the first lay statement dated January 2016, the friend explains he immediately noticed a drastic change in the Veteran when he left service; that he was withdrawn from social situations and was having a hard time adjusting; that the Veteran was no longer outgoing and never wanted to get together; the Veteran was overthinking things and would get caught up in his own thoughts, and; that the Veteran was not the same outgoing cheerful man the friend once knew. In the second lay statement dated July 2016, the second friend explains he has known the Veteran to be a cheerful guy and how excited he was to join the military and serve his country. The second friend explained that he would see the Veteran when he was in the military when he would come home on leave, which is when he noticed a change in the Veteran's demeanor. Specifically, the second friend explained the Veteran was completely different; that he had gotten in fights with people and it seemed as if the smallest things would set him off; that he argued with this second friend over a bag of potato chips, and; the Veteran would often talk about being depressed and became very withdrawn. The Board finds the Veteran's friends to be competent and credible in reporting their personal knowledge and experiences with the Veteran before and after his military experience. These statements, coupled with his treatment for symptoms as found in the clinical records, trigger VA's duty to assist in obtaining a medical examination per McLendon. As such, this matter is remanded for the Veteran to obtain a VA medical examination and opinion to determine the nature and etiology of any acquired psychiatric disorder, to include depression. 4. Entitlement to service connection for obstructive sleep apnea (OSA), is remanded. The Veteran contends that he has OSA that began during active-duty service or is secondary to his depression. The Board notes the Veteran was diagnosed with OSA in June 2008 by a private medical examiner through a sleep study. The Veteran was never diagnosed with OSA during military service and his service treatment records (STRs) contain no reports of sleep related issues during military service. In December 2014, a private medical examiner opined the Veteran's depressive disorder and antidepressant, Trazodone, more likely than not aided in the development and permanently aggravate the Veteran's OSA; that obesity is also a factor that contributes to the Veteran's OSA, and; it would be impossible to determine how much of each factor contributes more than the other to the Veteran's OSA. The Board finds this private medical opinion is insufficient for adjudicative purposes, specifically because there is no service-connected psychiatric disability as of yet. It does, however, raise a reasonable possibility of a connection to service. As the Veteran asserts his OSA is secondary to his depression, the issue of entitlement to service connection for OSA is inextricably intertwined with the other pending claim of an acquired psychiatric disorder, to include depression. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). The Veteran has not been afforded a VA medical opinion for direct service connection, nor secondary service connection of his medical condition of OSA. Thus, a remand is needed for a medical nexus opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any diagnosed acquired psychiatric disorder, to include depression. The Veteran's claims file must be provided to, and reviewed, by the examiner. Following the examination and a review of the claims file, the examiner is asked to opine as to the following: a. Whether it is at least as likely as not that any acquired psychiatric disorder, to include depression, is related to his service. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. Note that the lack of documented treatment in service for a mental health disorder, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between any currently diagnosed mental health disorder and service. 2. IF the Veteran is diagnosed with any acquired psychiatric disorder, to include depression, AND that disability is found to be service-connected, request an appropriate VA medical clinician to review the pertinent records in the claims file and render to obtain a medical opinion on the following questions: a. Whether it is at least as likely as not a current sleep apnea disorder is caused by a service-connected psychiatric disability. b. Whether it is at least as likely as not a current sleep apnea disorder is aggravated by a service-connected acquired psychiatric disorder, to include depression? Note that aggravation in this context means any incremental increase in the non-service-connected disability (i.e., any additional impairment of earning capacity) caused by the service-connected disability. c. whether obesity is a factor, specifically: i. whether a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran's obesity; ii. whether the obesity or aggravation of obesity resulting from service-connected disability or disabilities was a substantial factor in causing sleep apnea; and iii. whether the sleep apnea would not have occurred but for the obesity caused by the Veteran's service-connected disability or disabilities or the obesity aggravated by the service-connected disability or disabilities. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the likelihood is at least approximately balanced or nearly equal, if not higher. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Smith 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.