Veteranclaims’s Blog

June 21, 2022

Single Judge Application; RO granted benefits for alcohol dependence aggravated by PTSD; the Court concludes that this evidence “draws an association or suggests a relationship” between the appellant’s obesity and the medication he was prescribed to treat his service-connected PTSD. Garner, 33 Vet.App. at 249;

Filed under: Uncategorized — veteranclaims @ 12:49 am

Designated for electronic publication only
No. 21-3897
Before MEREDITH, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Eric J. Corbin, through counsel appeals a May 11,
2021, Board of Veterans’ Appeals (Board) decision that denied entitlement to benefits for
obstructive sleep apnea (OSA), including as secondary to service-connected post-traumatic stress
disorder (PTSD). Record (R.) at 4-14. This appeal is timely, and the Court has jurisdiction to
review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge
disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
following reasons, the Court will vacate the Board’s decision and remand the matter for further
proceedings consistent with this decision.
The appellant served on active duty in the U.S. Marine Corps from September 1988 to
September 1992. R. at 8339. The record reflects that he began taking Seroquel—a trademark
name for quetiapine fumarate1—in March 2014 to treat depression. R. at 1722 (Mar. 2014 VA
1 Quetiapine fumarate is “a dibenzothiazepine derivative that is an antagonist to multiple neurotransmitter
receptors in the brain, used as an antipsychotic in the treatment of schizophrenia and other psychotic disorders.”
(last visited June 8, 2022).
treatment record reflecting plan to “initiate trial of [S]eroquel”). He filed a claim for benefits for
PTSD in August 2014. R. at 8345-46. In December 2014, a VA pharmacist discussed with the
appellant the purpose of his various medications and their side effects. R. at 6916. Of note, the
pharmacist informed the appellant that “[q]uetiapine can cause increased appetite and weight
gain.” Id.
In a March 2015 VA treatment note, a nurse practitioner wrote that the appellant’s Seroquel
dosage would be increased to assist with “mood stabilization and sleep until Paxil can take full
effect.”2 R. at 3017. In a VA individual therapy note dated the same day, however, the nurse
practitioner wrote that she and the appellant “discuss[ed] possibly getting him off [S]eroquel for
side effects of weight gain.” R. at 6640.
In an April 2015 VA initial sleep consultation, the treatment provider stated that the
appellant’s report of symptoms, as well as “findings on [o]bjective scales,” was consistent with,
among other conditions, sleep-related breathing disorders, including OSA. R. at 2999. In June
2015, the appellant filed a claim for benefits for OSA, R. at 6747, which he asserted was
aggravated by PTSD, R. at 6745.
A VA regional office (RO) denied the appellant’s claim for benefits for OSA in July 2015,
finding that the “condition [was] neither occurred in nor . . . caused by service.” R. at 6743. The
RO further explained that the appellant’s claim for benefits for PTSD had been denied and was on
appeal. Id. The appellant filed a Notice of Disagreement with that decision, R. at 6686-87, and
later perfected his appeal to the Board, R. at 5032-33.
An August 2015 VA psychiatry note, under the heading “Patient’s response to
intervention,” reflects that the appellant reported “excessive weight gain” of 40 pounds and that he
and his psychologist agreed to begin tapering off Seroquel to “[d]ecrease weight gain.” R. at 2864.
Further, the record contains a note that the appellant attended a 50-minute VA “PTSD Nutrition
Group” in April 2016. R. at 3800. The note reflects that the class covered eight topics, including
“[c]alories cause weight gain” and “[o]vereating foods high in sugar can lead to weight gain; being
overweight and obese increases one’s risk for diabetes.” Id.
2 Paxil is a trademark name for paroxetine hydrochloride, DORLAND’S at
dorland/definition?id=37268&searchterm=Paxil (last visited June 8, 2022), which is “a selective serotonin reuptake
inhibitor used to treat depressive, obsessive-compulsive, panic, and social anxiety disorders,” id. at (last visited June 8, 2022).
In August 2018, the appellant testified at a hearing before a Board member that he had
experienced symptoms of sleep apnea during service because he slept in a truck for more than 3
years. R. at 4952. The following year, the Board remanded the appellant’s claim for benefits for
sleep apnea, finding that it was inextricably intertwined with his claim for benefits for an acquired
psychiatric disorder, including PTSD, which the Board also remanded. R. at 4893-907. After VA
obtained a medical opinion in November 2019, R. at 3288-90, the RO granted the appellant’s claim
for benefits for PTSD, R. at 834-36.
Thereafter, the Board again remanded the appellant’s claim for benefits for OSA and
directed VA to provide a medical examination. R. at 810-20. In an August 2020 VA sleep apnea
examination report,3 the examiner noted that the appellant had been diagnosed with OSA in 2015
following a VA sleep study, R. at 474, but opined that the condition was less likely than not related
to service or to service-connected PTSD, R. at 476. The examiner stated that the appellant was
diagnosed with OSA more than 20 years after his discharge from service and noted that the
appellant’s body mass index had increased from 24.3 at the time of discharge to 33 at the time of
his diagnosis. R. at 476-77. The examiner stated that “[t]he most[] likely etiology of the
[appellant’s] OSA is obesity[,] as well as risk factors of male gender and age.” R. at 477. The
examiner noted that “[t]here is no documentation for any sleep disturbances noted in review of
[the appellant’s] military [service treatment records],” and that “PTSD and alcohol abuse are
psychological disorders,” and “[t]he medical evidence does not support the plausibility that PTSD
and alcohol abuse cause[] an anatomical obstruction, nor aggravation of OSA beyond its natural
progression.” Id.
The RO subsequently granted benefits for alcohol dependence aggravated by PTSD. R. at
517-19. The RO continued the denial of benefits for OSA in an October 2020 Supplemental
Statement of the Case, R. at 508-12, and the matter returned to the Board.
In the May 2021 decision on appeal, the Board denied entitlement to benefits for sleep
apnea, including as secondary to service-connected PTSD. R. at 4-14. This appeal followed.
3 The record reflects that, because of concerns about COVID-19 exposure, the appellant was not examined
in person; the examiner conducted a records review and a telephone interview with the appellant. R. at 473.
The appellant argues that the Board erred because it failed to consider whether his obesity
is an intermediate step between his service-connected alcohol dependence and his OSA and
whether a medical examination or opinion regarding that theory was required. Appellant’s Brief
(Br.) at 4-7. He asserts that the evidence of record shows that he was “drinking [alcohol] heavily”
between 1994 and 2014, just prior to his OSA diagnosis, and that his nutritionist advised him that
excess calories would lead to weight gain. Id. at 7. In support of this argument, he relies on a
January 2017 VA Office of the General Counsel (OGC) precedent opinion that established that
obesity can serve as the “intermediate step” between a service-connected disability and a current
disability. Id. (citing VA Gen. Couns. Prec. 1-2017 (Jan. 6, 2017)).
The Secretary disputes these arguments and urges the Court to affirm the Board decision.
Secretary’s Br. at 6-12. In particular, the Secretary avers that, pursuant to Garner v. Tran,
33 Vet.App. 241 (2021), the issue of obesity as an intermediate step was not reasonably raised by
the record. Secretary’s Br. at 6-9. In his reply brief, the appellant responds that the intermediate
step theory was reasonably raised under Garner because the record reflects that he engaged in
“‘behaviors associated with weight gain'”—heavy drinking—and that the “‘side effects of
medication . . . prescribed for a service-connected disability'”—PTSD—led to weight gain. Reply
Br. at 3, 4 (quoting Garner, 33 Vet.App. at 249).
To satisfy the duty to assist, VA must provide a medical examination where there is
“competent evidence that the claimant has a current disability, or persistent or recurrent symptoms
of disability” and the evidence “indicates that the disability or symptoms may be associated with
the claimant’s active military, naval, air, or space service,” but there is insufficient “medical
evidence for the Secretary to make a decision on the claim.” 38 U.S.C. § 5103A(d)(2). In
McLendon v. Nicholson, the Court set forth a four-part test, clarifying that an examination is
warranted when there is
(1) competent evidence of a current disability or persistent or recurrent symptoms
of a disability, and (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.
20 Vet.App. 79, 81 (2006); see 38 C.F.R. § 3.159(c)(4) (2021). The third McLendon element
“requires only that the evidence ‘indicates’ that there ‘may’ be a nexus between the [first] two
[elements] . . . [and t]his is a low threshold.” McLendon, 20 Vet.App. at 83 (emphasis added)
(quoting 38 U.S.C. § 5103A(d)(2)(B)).
The Board is required to consider all theories of entitlement to VA benefits that are either
raised by the claimant or reasonably raised by the record, Robinson v. Peake, 21 Vet.App. 545,
553 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009), and the Court
has jurisdiction to review whether the Board erred in failing to consider such theories, Barringer
v. Peake, 22 Vet.App. 242, 244 (2008). Although there is no particular test to determine whether
an issue was reasonably raised by the record, the Court has observed that, if the evidence of record
supporting the issue would not meet the low bar necessary to trigger the duty to obtain a medical
opinion under McLendon, any failure by the Board to discuss the issue would not be prejudicial to
the appellant. See Robinson, 21 Vet.App. at 553; see also 38 U.S.C. § 7261(b)(2) (requiring the
Court to “take due account of the rule of prejudicial error”); Shinseki v. Sanders, 556 U.S. 396,
409 (2009) (holding that the harmless-error analysis applies to the Court’s review of Board
decisions and that the burden is on the appellant to show that he or she suffered prejudice as a
result of VA error). As with any material issue of fact or law, the Board must provide a statement
of reasons or bases that is “adequate to enable a claimant to understand the precise basis for the
Board’s decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517,
527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
The January 2017 OGC opinion to which the appellant refers in his briefs provides for
benefits for conditions in which obesity is an “intermediate step.” Specifically, the opinion
[W]e address whether obesity could qualify as an “intermediate step” between a
service-connected disability and a current disability, for example, whether a veteran
could establish entitlement to service connection for hypertension if a veteran’s
service-connected back disability causes obesity due to lack of exercise, which
leads to hypertension. Under 38 C.F.R. § 3.310(a), disability which is proximately
due to or the result of a service-connected disease or injury is service connected.
“Proximate cause” is defined as a “’cause that directly produces an event and
without which the event would not have occurred.'” VAOPGCPREC 6-2003
(quoting BLACK’S LAW DICTIONARY 213 (7th ed. 1999)). When there are
potentially multiple causes of a harm, an action is considered to be a proximate
cause of the harm if it is a substantial factor in bringing about the harm and the
harm would not have occurred but for the action. Shyface v. Sec’y of Health &
Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999) (citing RESTATEMENT (SECOND)
OF TORTS §§ 430 cmt. d. and 433 cmt. d. (1965)).
[ ] A determination of proximate cause is basically one of fact, for determination
by adjudication personnel. VAOPGCPREC 6-2003 and 19-1997. With regard to
the hypothetical presented in the previous paragraph, adjudicators would have to
resolve the following issues: (1) whether the service-connected back disability
caused the veteran to become obese; (2) if so, whether the obesity as a result of the
service-connected disability was a substantial factor in causing hypertension; and
(3) whether the hypertension would not have occurred but for obesity caused by the
service-connected back disability. If these questions are answered in the
affirmative, the hypertension may be service connected on a secondary basis.
VA Gen. Couns. Prec. 1-2017 at 9-10.
In Garner, the Court “[r]eview[ed] . . . a broad array of factual circumstances . . . to
illuminate the type and quality of evidence that may be sufficient to reasonably raise a theory of
secondary service connection via obesity as an intermediate step.” 33 Vet.App. at 248. The Court
then provided the following guidance:
[C]onsiderations 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, mobility limitations or reduced physical activity as a result of a serviceconnected
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 serviceconnected
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.
Id. (footnotes omitted). In sum, the Court in Garner explained, 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.” Id. at 249.
Here, the Board first determined that “all necessary development has been accomplished,
and therefore appellate review [could] proceed without prejudice to the [appellant].” R. at 7. The
Board then reviewed the evidence of record, noting that (1) the appellant’s service medical records
contain no indication of symptoms of or treatment for OSA, (2) the appellant was first diagnosed
with OSA in 2015, decades after service, (3) the appellant testified as to his belief that his
symptoms began in service as a result of sleeping in a truck, and (4) the August 2020 VA examiner
determined that the appellant’s OSA was more likely the result of his weight, age, and gender.
R. at 9-11. The Board concluded that “the medical evidence shows a correlation between the
[appellant’s] [OSA] and known risk factors, such as excessive weight and advanced age,” and
therefore a preponderance of the evidence was against a finding that the appellant’s OSA was
related to service or to a service-connected disability. Id.
As discussed above, the four-part McLendon test can assist the Court in determining
whether an issue was reasonably raised by the record. See Robinson, 21 Vet.App. at 553. The
appellant contends that the first two elements are satisfied because the Board acknowledged that
he has a current disability of OSA and that he is service connected for PTSD with alcohol
dependence. Appellant’s Br. at 5-6; see R. at 6, 9. The Secretary does not dispute these assertions.
The appellant contends that the third McLendon element is met because the record reflects
that he was prescribed Seroquel to treat his PTSD, the medication’s known side effects included
increased appetite and weight gain, he gained weight, and he was later tapered off the medication
in an attempt to decrease his weight gain. Reply Br. at 4; see R. at 2864, 3017, 6640, 6916. The
Court’s review of the record confirms this series of events, and the Court concludes that this
evidence “draws an association or suggests a relationship” between the appellant’s obesity and
the medication he was prescribed to treat his service-connected PTSD. Garner, 33 Vet.App. at 249
. The Court therefore finds that this theory of entitlement was reasonably raised by the record,
and the Board erred in not considering it. See id.; Barringer, 22 Vet.App. at 244; Robinson,
21 Vet.App. at 553. Because the Court concludes that the issue of obesity as an intermediate step
between service-connected PTSD with alcohol dependence and OSA was reasonably raised below,
remand is warranted for the Board to consider this theory in the first instance.
Given this disposition, the Court will not now address the remaining arguments and issues
raised by the appellant, including whether a medical opinion is necessary to address this theory of
entitlement. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (“The Court will not ordinarily
consider additional allegations of error that have been rendered moot by the Court’s opinion or that
would require the Court to issue an advisory opinion.”); Best v. Principi, 15 Vet.App. 18, 20 (2001)
(per curiam order). On remand, the appellant is free to submit additional evidence and argument
on the remanded matter, including the specific arguments raised here on appeal, and the Board is
required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App.
529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and
argument in assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369,
372-73 (1999) (per curiam order). The Court reminds the Board that “[a] remand is meant to entail
a critical examination of the justification for the decision,” Fletcher v. Derwinski, 1 Vet.App. 394,
397 (1991), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
After consideration of the parties’ pleadings and a review of the record, the Board’s May 11,
2021, decision is VACATED and the matter is REMANDED for further proceedings consistent
with this decision.
DATED: June 17, 2022
Copies to:
Matthew G. Greig, Esq.
VA General Counsel (027)

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