Citation Nr: 21001065 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-54 927 DATE: January 6, 2021 ORDER Entitlement to service connection for a low back disorder, as secondary to service-connected bilateral pes planus, is granted. Entitlement to service connection for hypertension, as secondary to service-connected bilateral pes planus, bilateral knee arthritis, and low back disorder, is granted. FINDINGS OF FACT 1. The Veteran’s low back disorder is aggravated by his service-connected bilateral pes planus. 2. The Veteran’s obesity was an intermediate step between his hypertension and his service-connected bilateral pes planus, bilateral knee arthritis, and low back disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disorder as secondary to his service-connected bilateral pes planus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for hypertension as secondary to his service-connected bilateral pes planus, bilateral knee arthritis, and low back disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1970 to April 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In May 2019, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In November 2019, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. The Board notes that additional evidence was received after the June 2020 supplemental statement of the case (SSOC) after certification of the appeal to the Board. 38 C.F.R. § 20.1304(c) requires remand for AOJ review of pertinent evidence submitted after notification of certification of the appeal to the Board and 38 C.F.R. §§ 19.31(b)(1) requires issuance of a SSOC when the AOJ receives additional pertinent evidence after a statement of the case or the most recent SSOC has been issued, and before the appeal is certified to the Board. In this case, the additional evidence is duplicative of other evidence, including the Veteran’s May 2019 testimony. Therefore, a remand to the RO for consideration of the additional evidence is not required. See 38 C.F.R. § 19.37(a) (requiring remand for a supplemental statement of the case, unless the additional evidence duplicates evidence previously of record which was discussed in the statement of the case or supplemental statement of the case, or the additional evidence is not relevant to the issue on appeal). Service Connection The Veteran asserts that his low back disorder and hypertension are related to his active duty service. Specifically, he testified that his bilateral foot disorder has caused or aggravated his low back and hypertension. See May 2019 Hearing Transcript. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) that 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). 1. Entitlement to service connection for a low back disorder The Veteran has a current diagnosis of intervertebral disc syndrome (IVDS) and spinal stenosis. See April 2020 Back Conditions Disability Benefits Questionnaire (DBQ). Accordingly, he has a current disability. See Davidson, 581 F.3d 1313. In support of his claim, the Veteran submitted a joint opinion by his private physicians. The physicians opined that the Veteran’s lumbar condition was at least as likely as not aggravated by his bilateral pes planus. The rationalized that flat feet cause the legs to turn unnaturally inward, which causes overuse and stress injuries which leads to the development and aggravation of back disorders. See December 2019 Dr. O.R., Dr. E.A. Statement. The Board notes there is a negative etiological opinion of record in the form of an April 2020 VA medical opinion. The opinion was primarily based whether the Veteran’s back disorder was caused by his bilateral pes planus and did not address aggravation. Based on the evidence of record, the Veteran’s claim of service connection for a low back disorder is granted as secondary to his service-connected bilateral pes planus. In this regard, the December 2019 private medical opinion provided that the Veteran’s back disorder is aggravated by his service-connected bilateral pes planus. Although there is a VA examination opinion of record that is unfavorable, the Board finds that, at the least, the evidence for and against the claims is in relative equipoise. When the evidence for and against a claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154 (b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and the Board finds that the criteria for entitlement to service connection for a low back disorder, as secondary to service-connected bilateral pes planus, have been satisfied. Accordingly, entitlement to service connection for a low back disorder is granted. 2. Entitlement to service connection for hypertension The Veteran asserts that his hypertension is secondary to his bilateral pes planus. Specifically, he asserts that his foot disorder caused him to gain weight, which, in turn, caused him to develop hypertension. See May 2019 Hearing Transcript. The Veteran has a current diagnosis of hypertension. See April 2020 Hypertension DBQ. Accordingly, he has a current disability. See Davidson, 581 F.3d 1313. The Board notes that obesity is not a disease or disability for which service connection may be granted. See VAOPGCPREC 1-2017 (holding the “longstanding policy of [VA], that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis, is consistent with title 38, United States Code” and “[o]besity per se is not a ‘disability’ for purposes of 38 C.F.R. § 3.310 “). However, service connection may be granted under 38 C.F.R. § 3.310(a) if obesity was an “intermediate step” between a service-connected disability and a current disorder. See VAOPGCPREC 1-2017. In order for secondary service connection to be granted under theory, the record must demonstrate that: (1) the service-connected disability caused the veteran to become obese; (2) the obesity as a result of the service-connected disability was a substantial factor in causing the claimed disorder; and (3) the claimed disorder would not have occurred but for obesity caused by the service-connected disability. A December 2019 private medical opinion opined that the Veteran’s service-connected joint issues, including his bilateral pes planus, bilateral knee disorder, and low back disorder affect his ability to properly exercise the body leading to weight gain and an increased risk of hypertension. See December 2019 Dr. O.R., Dr. E.A. Statement. The Board notes there is a negative etiological opinion of record in the form of an April 2020 VA medical opinion. The opinion was primarily based on being unable to attribute the Veteran’s weight gain to only his service-connected pes planus. See April 2020 Medical Opinion DBQ. (Continued on the next page)   Based on the evidence of record, the Veteran’s claim of service connection for hypertension is granted as secondary to his service-connected disorders. In this regard, the December 2019 private medical opinion provided that the Veteran’s hypertension is the result of his weight gain which was caused by his service-connected joint disorders. Although there is a VA examination opinion of record that is unfavorable, the Board finds that, at the least, the evidence for and against the claims is in relative equipoise. When the evidence for and against a claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154 (b); 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 55. Therefore, the benefit of the doubt must be resolved in favor of the Veteran and the Board finds that the necessary factors for the Veteran’s obesity to be considered an intermediate step between his hypertension and his service-connected disorders have been satisfied. Entitlement to service connection for hypertension is granted. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.