Citation Nr: 21002510 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-16 882 DATE: January 13, 2021 REMANDED Service connection for hypertension is remanded. Service connection for sleep apnea is remanded. Service connection for gastroesophageal reflux disorder (GERD)/acid reflux is remanded. Service connection for psoriasis is remanded. Service connection for Grave’s disease is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1989 to July 1993. The Veteran’s service records reflect he had service in the Persian Gulf; therefore, he is a Persian Gulf War Veteran and consideration must be given to the VA regulation pertaining exposure to toxins in the Southwest Asia Theater of Operations. See 38 C.F.R. § 3.317. These claims are on appeal from rating decisions dated September 2015, February 2016, and May 2016. The Veteran properly perfected his appeals to the Board, and in a May 2019 decision, the Board denied his claims. He appealed these denials to the Court of Appeals for Veterans Claims (Court), and pursuant to a June 2020 Court Order, based on a June 2020 Joint Motion for Partial Remand (Joint Motion), the parties found vacatur and remand were warranted. First, the parties found that the Board did not consider whether the evidence of record reasonably raised the issue of whether the Veteran’s obesity may serve as an “intermediate step” between his service-connected disabilities and his currently diagnosed hypertension and sleep apnea, such that service connection on a secondary basis could be warranted under 38 C.F.R. § 3.310. See VAOPGCPREC 1-2017. The parties agreed the Board failed to discuss the February, March, and December 2016 VA examinations which suggested such a connection. The parties also found that the Board did not discuss September 2016 and October 2016 VA treatment records which note that the Veteran had been taking Gabapentin for his fibromyalgia and attributed a weight gain of 16 pounds over the past year to this medication. Second, the parties agreed that the Board did not provide an adequate statement of reasons or bases to support its reliance on January 2016, December 2016, and February 2017 VA medical opinions in its denial of service connection for GERD, a skin disorder (claimed as psoriasis), and a thyroid disorder (claimed as Grave’s disease). While the Joint Motion did not specifically claim the opinions were inadequate, it did note that an adequate opinion must be based upon consideration of the relevant evidence and must provide the Board with a foundation sufficient enough to evaluate the probative worth of that opinion. Significantly, the Joint Motion found a remand was required for the Board to provide an adequate statement of reasons or bases discussing the adequacy of these opinions. 1. Service connection for hypertension is remanded. Initially, the Board notes that that obesity is not recognized by VA as a disease or disability for compensation purposes; however, obesity may serve as an intermediate step when considering secondary service connection under 38 C.F.R. § 3.310. See VAOPGCPREC 1-2017. In Walsh v. Wilkie, 32 Vet. App. 300, 307 (2020), the Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability (caused the veteran to become obese/aggravated the veteran’s obesity); (2) if so, whether the (obesity/aggravation of obesity) as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for (obesity caused/obesity aggravated) by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Pursuant to the Joint Motion, a remand is required to determine whether the Veteran’s obesity was caused or aggravated by any of his service-connected disabilities (to include medication for those disabilities). If so, consideration must be given to whether his obesity was a substantial factor in causing his hypertension and whether his hypertension would not have occurred but for the obesity caused by a service-connected disability or medication for a service-connected disability. Additionally, the Board finds the February and December 2016 opinions do not adequately consider whether the Veteran’s hypertension began during or is related to his active duty service, to include as due to exposure to toxins in the Southwest Asia Theater of Operations. Rather, they merely indicate hypertension is a diagnosed disease with a clear etiology; however, these opinions fail to consider whether hypertension is actually related to service or to the aforementioned presumed exposure to toxins. Thus, a new opinion on direct service connection is also required. Moreover, while a January 2016 opinion indicates it is less likely than not that the Veteran’s hypertension was caused by medication he takes for any of his service-connected disabilities and a February 2016 opinion indicates that it is less likely than not that his hypertension was caused by his fibromyalgia or irritable bowel syndrome (IBS), there are no separate opinions regarding aggravation. See Atencio v. O’Rourke, 30 Vet. App. 74, 90-91 (2018) (holding that whether a service-connected condition caused or whether it aggravated a veteran’s current disability are independent inquiries and an examiner’s failure to treat these questions separately renders the opinion inadequate). Thus, these opinions must be obtained on remand,. 2. Service connection for sleep apnea is remanded. Pursuant to the Joint Motion, a remand is required to determine whether the Veteran’s obesity was caused or aggravated by any of his service-connected disabilities (to include medication for those disabilities). If so, consideration must be given to whether his obesity was a substantial factor in causing his sleep apnea and whether his sleep apnea would not have occurred but for the obesity caused by a service-connected disability or medication for a service-connected disability. The record contains a March 2016 opinion which concludes the Veteran’s sleep apnea was less likely than not caused by his service-connected back strain or his fibromyalgia. An April 2017 opinion found no causal relationship between the Veteran’s psychiatric disorder and his sleep apnea. There are no separate opinions regarding aggravation, and therefore, these must be obtained on remand. See Atencio, 30 Vet. App. at 90-91. Additionally, as there is no opinion regarding direct service connection, to include consideration of exposure to toxins in the Southwest Asia Theater of Operations, this must also be obtained on remand. 3. Service connection for GERD is remanded. The Board has reviewed the examinations of record and finds the Veteran’s claim for GERD must be remanded for addendum opinions. Initially, the December 2016 opinion on direct service connection merely indicates GERD is a diagnosed disease with a clear etiology but fails to consider whether it is related to the Veteran’s service or his presumed exposure to toxins in the Southwest Asia theater of operations. Thus, a new opinion on direct service connection is required. A January 2016 opinion indicates it is less likely than not that the Veteran’s acid reflux was caused by any of his prescribed medications, and a February 2017 opinion found no causal relationship between the Veteran’s psychiatric disorder and his GERD. There are no separate opinions regarding aggravation, and therefore, this must be obtained on remand. See Atencio, 30 Vet. App. at 90-91. 4. Service connection for psoriasis is remanded. 5. Service connection for a thyroid disorder (claimed as Grave’s Disease) is remanded. The Board has reviewed the examinations of record and finds the Veteran’s claims must be remanded for addendum opinions. The record contains a December 2016 opinion, which found it was less likely than not the Veteran’s psoriasis was related to his active service, reasoning that psoriasis is a diagnosed disease with a clear etiology; however, this opinion fails to consider whether the Veteran’s psoriasis is related to the Veteran’s service or his presumed exposure to toxins in the Southwest Asia theater of operations. A December 2016 opinion on Grave’s disease similarly fails to consider the above. Thus, new opinions on direct service connection are required. The Veteran and his representative have the right to submit additional evidence and argument while these claims are in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Obtain addendum opinions regarding the etiology of the Veteran’s hypertension. The medical professional should obtain from the Veteran and record in the report a complete history regarding the onset and continuity of hypertension symptoms and any weight gain, which may be accomplished using the ACE telephone process. An examination of the Veteran is not required unless the medical professional designated to provide the below opinions finds one is necessary. Following a complete review of the evidence of record, and with consideration of the Veteran’s statements, please opine on the following: (a) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s hypertension began during or is etiologically related to his active duty service, to include as due to exposure to toxins in the Southwest Asia Theater of Operations. Why or why not? (b) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s hypertension was aggravated by his service-connected fibromyalgia. Why or why not? (c) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s hypertension was aggravated by his service-connected IBS. Why or why not? (d) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s hypertension was caused by medication he takes for his service-connected disabilities (back strain, fibromyalgia, IBS, psychiatric disorder). Why or why not? (e) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s hypertension was aggravated by medication he takes for his service-connected disabilities (back strain, fibromyalgia, IBS, psychiatric disorder). Why or why not? (f) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s service-connected disabilities (back strain, fibromyalgia, IBS, psychiatric disorder) caused him to become obese. Why or why not? (g) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s service-connected disabilities (back strain, fibromyalgia, IBS, psychiatric disorder) aggravated his obesity. Why or why not? (h) Determine whether it is at least as likely as not (50 percent probability or higher) that medication the Veteran takes for his service-connected disabilities caused him to become obese. Why or why not? (i) Determine whether it is at least as likely as not (50 percent probability or higher) that medication the Veteran takes for his service-connected disabilities aggravated his obesity. Why or why not? In responses to (h) and (i), the medical professional MUST consider and discuss September 2016 and October 2016 VA treatment records which note that the Veteran attributed recent weight gain to taking Gabapentin for his fibromyalgia. (j) If any response to (f)-(i) is in the affirmative: i. Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s obesity/aggravation of obesity was a substantial factor in causing his hypertension. Why or why not? ii. Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s hypertension would not have occurred but for this obesity. Why or why not? A complete rationale for each opinion is required. Citation to accepted medical literature and principles would be of great assistance to the Board. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 2. Obtain addendum opinions regarding the etiology of the Veteran’s sleep apnea. The medical professional should obtain from the Veteran and record in the report a complete history regarding the onset and continuity of sleep apnea symptoms and any weight gain, which may be accomplished using the ACE telephone process. An examination of the Veteran is not required unless the medical professional designated to provide the below opinions finds one is necessary Following a complete review of the evidence of record, and with consideration of the Veteran’s statements, please opine on the following: (a) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s sleep apnea began during or is etiologically related to his active duty service, to include as due to exposure to toxins in the Southwest Asia Theater of Operations. Why or why not? (b) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s sleep apnea was aggravated by his service-connected fibromyalgia. Why or why not? (c) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s sleep apnea was aggravated by his service-connected back strain. Why or why not? (d) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s sleep apnea was aggravated by his service-connected psychiatric disorder. Why or why not? (e) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s service-connected disabilities (back strain, fibromyalgia, IBS, psychiatric disorder) caused him to become obese. Why or why not? (f) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s service-connected disabilities (back strain, fibromyalgia, IBS, psychiatric disorder) aggravated his obesity. Why or why not? (g) Determine whether it is at least as likely as not (50 percent probability or higher) that medication the Veteran takes for his service-connected disabilities caused him to become obese. Why or why not? (h) Determine whether it is at least as likely as not (50 percent probability or higher) that medication the Veteran takes for his service-connected disabilities aggravated his obesity. Why or why not? In responses to (g) and (h), the medical professional MUST consider and discuss September 2016 and October 2016 VA treatment records which note that the Veteran attributed recent weight gain to taking Gabapentin for his fibromyalgia. (i) If any response to (e)-(h) is in the affirmative: i. Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s obesity/aggravation of obesity was a substantial factor in causing his sleep apnea. Why or why not? ii. Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s sleep apnea would not have occurred but for this obesity. Why or why not? A complete rationale for each opinion is required. Citation to accepted medical literature and principles would be of great assistance to the Board. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 3. Obtain addendum opinions regarding the etiology of the Veteran’s GERD (and acid reflux symptoms). The medical professional should obtain from the Veteran and record in the report a complete history regarding the onset and continuity of GERD and acid reflux symptoms, which may be accomplished using the ACE telephone process. An examination of the Veteran is not required unless the medical professional designated to provide the below opinions finds one is necessary. Following a complete review of the evidence of record, and with consideration of the Veteran’s statements, please opine on the following: (a) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s GERD and acid reflux symptoms began during or are etiologically related to his active duty service, to include as due to exposure to toxins in the Southwest Asia Theater of Operations. Why or why not? (b) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s GERD and acid reflux symptoms are aggravated by his service-connected psychiatric disorder. Why or why not? (c) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s GERD and acid reflux symptoms are aggravated by his medication he takes for his service-connected disabilities (fibromyalgia, IBS, back strain, psychiatric disorder). Why or why not? A complete rationale for each opinion is required. Citation to accepted medical literature and principles would be of great assistance to the Board. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 4. Obtain an addendum opinion regarding the etiology of the Veteran’s psoriasis. The medical professional should obtain from the Veteran and record in the report a complete history regarding the onset and continuity of his psoriasis symptoms, which may be accomplished using the ACE telephone process. An examination of the Veteran is not required unless the medical professional designated to provide the below opinions finds one is necessary. Following a complete review of the evidence of record, and with consideration of the Veteran’s statements, please opine on the following: Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s psoriasis began during or is etiologically related to his active duty service, to include as due to exposure to toxins in the Southwest Asia Theater of Operations. Why or why not? A complete rationale for this opinion is required. Citation to accepted medical literature and principles would be of great assistance to the Board. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 5. Obtain addendum opinions regarding the etiology of the Veteran’s Grave’s disease. The medical professional should obtain from the Veteran and record in the report a complete history regarding the onset and continuity of symptoms, which may be accomplished using the ACE telephone process. An examination of the Veteran is not required unless the medical professional designated to provide the below opinions finds one is necessary. Following a complete review of the evidence of record, and with consideration of the Veteran’s statements, please opine on the following: Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s Grave’s disease began during or is etiologically related to his active duty service, to include as due to exposure to toxins in the Southwest Asia Theater of Operations. Why or why not? A complete rationale for this opinion is required. Citation to accepted medical literature and principles would be of great assistance to the Board. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 6. In order to avoid an additional remand, the AOJ must review the opinions to ensure they are adequate and comply with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.