Citation Nr: A25035487 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 231208-398760 DATE: April 17, 2025 REMANDED Entitlement to service connection, to include on a secondary basis, for sleep apnea is remanded. Entitlement to service connection, to include on a secondary basis, for headaches is remanded. Entitlement to service connection, to include on a secondary basis, for gastrointestinal disability, to include gastroesophageal reflux disease (GERD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Coast Guard from May 1984 to May 1987. By way of background, the Veteran filed a VA Form 21-526 EZ Fully Developed Claim in April 2020 for service connection for sleep apnea, headaches, and a gastrointestinal disability. In June 2021, the agency of original jurisdiction (AOJ) denied the claims. In July 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, requesting review of the June 2021 rating decision based on new and relevant evidence. In October 2021, the AOJ issued a rating decision, finding that new and relevant evidence was received, and denied the claims based on the evidence of record at the time of that decision. In December 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), requesting review of the October 2021 rating decision. In January 2022, the AOJ issued a HLR rating decision, which considered the evidence of record at the time of the October 2021 rating decision and denied the claims. In March 2022, the Veteran submitted another VA Form 20-0995, Decision Review Request: Supplemental Claim, requesting review of the January 2022 rating decision based on new and relevant evidence. In September 2022, the AOJ issued rating decisions, finding that new and relevant evidence was received, and denied the claims based on the evidence of record at the time of those decisions. In September 2022, the Veteran submitted a VA Form 20-0996, Decision Review Requests: Higher-Level Review (HLR), requesting review of the September 2022 rating decisions. In a November 2022 HLR rating decision (headaches and sleep apnea) and a December 2022 HLR rating decision (GERD), the AOJ found pre-decisional duty to assist errors given a difference of opinion and the necessity of further development. In October 2023, the AOJ issued supplemental review decisions, finding that new and relevant evidence was received and denied the claims based on evidence at the time of those decisions. In her December 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the October 2023 rating decisions on appeal. 38 C.F.R. § 20.301. 1. Entitlement to service connection, to include on a secondary basis, for sleep apnea is remanded. The issue of entitlement to service connection for sleep apnea is remanded to correct a duty to assist error that occurred prior to the October 2023 rating decision on appeal. The AOJ obtained February 2021, September 2021, and April 2023 medical opinions prior to the October 2023 rating decision on appeal. However, these medical opinions do not provide adequate rationale regarding whether the Veteran's service-connected major depressive disorder led to obesity, which served as an intermediate step to the development of her claimed sleep apnea. Service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability. Walsh v. Wilkie, 32 Vet. App. 300, 305-07 (2020). 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, 248-49 (2021). Considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step may include, but are not limited to: (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. Id. In this case, the record reflects evidence that the Veteran's BMI throughout the period on appeal ranged from 32 to 39, and that her service-connected major depressive disorder affects her ability to exercise. During the April 2015 VA mental health examination, the examiner found that the Veteran's major depressive disorder caused depressed mood, anxiety, disturbances of motivation and mood, suicidal ideation, and intermittent inability to perform activities of daily living. During the May 2018 VA mental health examination, the Veteran reported that she does not leave the house most days, and that she often feels exhausted, with no energy, and spends most of the day in bed. In July 2021 and March 2022 correspondence, the Veteran's representative indicated that the Veteran's depression affects her ability to leave the house and exercise regularly. Additionally, the Veteran's representative submitted medical treatise evidence in support of the Veteran's claim showing a correlation between depression and sleep apnea. Based on the foregoing, the Board determines that the theory of secondary service connection for sleep apnea via obesity as an intermediate step is reasonably raised by the evidence of record. The relevant evidence indicates that the Veteran's currently diagnosed sleep apnea may be associated with her service-connected major depressive disorder. While VA obtained medical opinions in 2021 and 2023 as to whether the Veteran's major depressive disorder caused or aggravated her sleep apnea, these opinions only addressed the causation component of secondary service connection, stating that there is no evidence of any medical literature to conclude that sleep apnea is caused by major depressive disorder. However, these opinions did not address whether the Veteran's sleep apnea would not have occurred but for obesity caused or aggravated by her service-connected major depressive disorder, nor did they discuss the medical literature submitted by the Veteran's representative in July 2021 and March 2022 in support of the Veteran's claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For this reason, the matter is remanded to obtain an adequate medical opinion with complete rationale as to whether obesity is an intermediate step between the Veteran's service-connected major depressive disorder and her diagnosed sleep apnea. 2. Entitlement to service connection, to include on a secondary basis, for headaches is remanded. The issue of entitlement to service connection for headaches is remanded to correct a duty to assist error that occurred prior to the October 2023 rating decision on appeal. The AOJ obtained February 2021, September 2021, and April 2023 medical opinions prior to the October 2023 rating decision on appeal. However, these medical opinions do not provide adequate rationale regarding whether the Veteran's service-connected major depressive disorder caused or aggravated her claimed headaches. In July 2021 and March 2022 correspondence, the Veteran's representative submitted medical treatise evidence in support of the Veteran's claim showing a link between depression and headaches, to include headache symptoms caused by the use of Venlafaxine and Effexor XR medications taken to treat the Veteran's depression. While VA obtained medical opinions in 2021 and 2023 as to whether the Veteran's major depressive disorder caused or aggravated her headaches, these opinions focused mainly on the causation component of secondary service connection, and they did not discuss the medical literature submitted by the Veteran's representative in July 2021 and March 2022 in support of the Veteran's claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For this reason, the matter is remanded to obtain an adequate medical opinion with complete rationale as to whether the Veteran's headaches are caused or aggravated by her service-connected major depressive disorder. 3. Entitlement to service connection, to include on a secondary basis, for gastrointestinal disability, to include GERD, is remanded. The issue of entitlement to service connection for a gastrointestinal disability is remanded to correct a duty to assist error that occurred prior to the October 2023 rating decision on appeal. The AOJ obtained February 2021, September 2021, and April 2023 medical opinions prior to the October 2023 rating decision on appeal. However, these medical opinions do not provide adequate rationale regarding whether the Veteran's service-connected major depressive disorder caused or aggravated her claimed headaches. In July 2021 and March 2022 correspondence, the Veteran's representative submitted medical treatise evidence in support of the Veteran's claim showing a link between depression and GERD, to include gastrointestinal symptoms caused by the use of Venlafaxine and Effexor XR medications taken to treat the Veteran's depression. These medical treatises also discuss how psychiatric disabilities such as depression may affect the nervous system and compromise the esophageal motor function, as well as how emotional distress may affect gastrointestinal function leading to gastrointestinal diseases. While VA obtained medical opinions in 2021 and 2023 as to whether the Veteran's major depressive disorder caused or aggravated her GERD, these opinions focused mainly on the causation component of secondary service connection, and they did not discuss the medical literature submitted by the Veteran's representative in July 2021 and March 2022 in support of the Veteran's claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For this reason, the matter is remanded to obtain an adequate medical opinion with complete rationale as to whether the Veteran's GERD is caused or aggravated by her service-connected major depressive disorder. Additionally, under current regulations, claimants are entitled to a "hearing on any issue involved in a claim before VA issues notice of a decision on an initial or supplemental claim." See 38 C.F.R. § 3.103(d)(1). Moreover, notice is required for decisions made by VA affecting the payment of benefits or granting relief that includes notice of the right to a hearing. See 38 C.F.R. § 3.103(b)(1). Here, the AOJ did not provide the Veteran with notice of her right to a hearing under 38 C.F.R. § 3.103(d)(1) on the above-mentioned issues prior to the issuance of the October 2023 rating decision. Therefore, a remand is required to correct this duty to assist error. The matters are REMANDED for the following action: 1. Provide the Veteran with proper notice of her right to a hearing under 38 C.F.R. § 3.103(d)(1) before the AOJ on the issues of entitlement to service connection for sleep apnea, headaches, and gastrointestinal disability. 2. Thereafter, send the Veteran's claims file to an appropriate medical professional to obtain an addendum opinion regarding the nature and etiology of the Veteran's diagnosed sleep apnea. The Veteran's claims file must be made accessible to the designated professional for review. A detailed rationale for any opinion expressed should be provided. Following the review of the claims file, the medical opinion provider is then requested to respond to the following: Is it approximately at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's service-connected major depressive disorder (1) caused or (2) aggravated her obesity, to include altering her activities to the extent that she cannot perform the types and amount of exercise necessary to control her weight, and that her sleep apnea would not have occurred "but for" her obesity? Please explain why or why not. In rendering the requested opinion, the medical opinion provider should consider the July 2021 and March 2022 correspondence from the Veteran's representative discussing the Veteran's symptoms, as well as the medical literature submitted with this correspondence discussing an association between depression, obesity, and sleep apnea. If the requested opinion cannot be provided without a new examination, one should be scheduled. 3. Send the Veteran's claims file to an appropriate medical professional to obtain an addendum opinion regarding the nature and etiology of the Veteran's headaches. The Veteran's claims file must be made accessible to the designated professional for review. A detailed rationale for any opinion expressed should be provided. Following the review of the claims file, the medical opinion provider is then requested to respond to the following: (a.) Is it approximately at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's diagnosed headaches are caused by the Veteran's service-connected major depressive disorder? (b.) If not, is it approximately at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's diagnosed headaches underwent any incremental increase in disability, regardless of their permanence, due to the Veteran's service-connected major depressive disorder? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. In rendering the requested opinions, the medical opinion provider should consider the July 2021 and March 2022 correspondence from the Veteran's representative discussing the Veteran's symptoms, as well as the medical literature submitted with this correspondence discussing an association between the Veteran's headaches and her service-connected major depressive disorder, to include the effects of and symptoms produced from medication taken for her service-connected psychiatric disability. If the requested opinions cannot be provided without a new examination, one should be scheduled. 4. Send the Veteran's claims file to an appropriate medical professional to obtain an addendum opinion regarding the nature and etiology of any gastrointestinal disability diagnosed during the pendency of the appeal, to include GERD. The Veteran's claims file must be made accessible to the designated professional for review. A detailed rationale for any opinion expressed should be provided. Following the review of the claims file, the medical opinion provider is then requested to respond to the following: (a.) Is it approximately at least as likely as not (an approximate balance of positive and negative evidence) that any gastrointestinal disability diagnosed during the pendency of the appeal, to include GERD, is caused by the Veteran's service-connected major depressive disorder? (b.) If not, is it approximately at least as likely as not (an approximate balance of positive and negative evidence) that any gastrointestinal disability diagnosed during the pendency of the appeal, to include GERD, underwent any incremental increase in disability, regardless of its permanence, due to the Veteran's service-connected major depressive disorder? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. In rendering the requested opinions, the medical opinion provider should consider the July 2021 and March 2022 correspondence from the Veteran's representative discussing the Veteran's symptoms, as well as the medical literature submitted with this correspondence discussing an association between the Veteran's GERD and her service-connected major depressive disorder, to include the effects of and symptoms produced from medication taken for her service-connected psychiatric disability. If the requested opinions cannot be provided without a new examination, one should be scheduled. 5. After the above development, readjudicate the claims on appeal, to include determining if the duty to assist requires any additional evidentiary development. Thomas L. English Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Houle, Denise 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.