Citation Nr: 21005191 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 17-07 567 ATE: January 29, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran had active service from October 1977 to October 1982 and from August 1983 to August 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2015 (right ankle disability, left ankle disability, bilateral pes planus), July 2016 (low back disability) and June 2017 (hypertension) rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was initially before the Board in November 2019. In November 2019, the Board, in pertinent part, found pursuant to 3.156 (c), the Veteran’s hypertension claim should be addressed on the merits de novo. In November 2019, the Board, in pertinent part, also denied the claims of entitlement to service connection for hypertension, a right ankle disability, a left ankle disability, bilateral pes planus and a low back disability. The Veteran appealed the Board’s November 2019 denials as to these issues to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in September 2020, the Court granted an August 2020 Joint Motion for Partial Remand (JMPR) of the parties (the Secretary of VA and the Veteran), and vacated the Board’s decision with respect to these issues, and remanded the case to the Board for re-adjudication consistent with the JMPR. These issues have now returned to the Board for further review. VA correspondence dated September 21, 2020 has been issued to the Veteran and his representative, informing the Veteran that he may submit any additional argument or evidence within 90 days of the date of the letter or waive the 90 day period if he would like the Board to proceed to immediate adjudication of the appeal for the issue vacated by the Court. No response received by VA from either the Veteran or his representative; however, the 90 day period has elapsed. Thus, the Board may proceed with appellate review. Additional evidence developed by VA consisting of a September 2019 hypertension disability benefits questionnaire (DBQ), was associated with the record prior to the September 2019 Statement of the Case (SOC), which in pertinent part, addressed the issue of entitlement to service connection for hypertension but subsequent to the August 2019 Supplemental Statements of the Case (SSOCs) which, in part, were issued the remaining claims addressed herein. The Veteran did not waive Agency of Original Jurisdiction review of this additional evidence. However, the September 2019 hypertension DBQ is not relevant to the claims addressed in the August 2019 SSOCs, there is no prejudice to the Veteran in this regard. 1. Entitlement to service connection for hypertension is remanded. The August 2020 JMPR found remand was warranted for Board to address whether the September 2019 VA opinion, which addressed the claim for hypertension as secondary to service-connected posttraumatic stress disorder (PTSD), more specifically due to weight gain from PTSD, was adequate. In this regard, the September 2019 VA examiner explained, in part, that he, as general medical examiner, would not comment on PTSD (if present) and its association with any eating disorder (if present) leading to obesity, as this required a mental health professional to establish a direct etiological relationship. The September 2019 VA examiner also explained the Veteran had multiple risk factors besides obesity for hypertension namely, chronic pain, obstructive sleep apnea, diabetes mellitus, age, poly pharmacy and metabolic syndrome. This opinion is not adequate for adjudicative purposes and another opinion is warranted. Further, as discussed above, the September 2019 VA examiner also explained obstructive sleep apnea as a risk factor for hypertension. This is consistent with the finding of a May 2017 VA examiner who, also found in part, sleep apnea was a risk factor (among others) for hypertension. The Veteran is service-connected for obstructive sleep apnea. Accordingly, an opinion for hypertension as secondary to obstructive sleep apnea is warranted. 2. Entitlement to service connection for a right ankle disability is remanded. 3. Entitlement to service connection for a left ankle disability is remanded. The August 2020 JMPR found remand was warranted for the Board to address the theory that weight gain from PTSD was reasonably raised for the bilateral ankle claims. In this regard, as noted by the August 2020 JMPR, a November 2016 examiner opined, in addressing the Veteran’s right and left ankle claims as secondary to the service-connected bilateral knee disability, in part, the condition claimed was less likely than not proximately due to, or the result of, the Veteran’s service-connected condition. The November 2016 examiner explained the Veteran had chronic ankle pains due to his non service-connected gout and his weight status caused compression pain. Additionally, although not proximate to the appeal period, an August 2009 medical record noted the Veteran had had a recent flare of osteoarthritis of his right knee and ankle and that he needed to lose weight and improve the strength of his leg muscles. Further, the August 2020 JMPR also cited to the August 2017 notice of disagreement, which raised the theory of PTSD in causing weight gain, albeit in the context of the hypertension claim. Thus, the Board finds the theory of weight gain due to service-connected PTSD was reasonably raised and an opinion addressing the bilateral ankle claims on this basis is warranted. Additionally, as the November 2016 examiner did not address whether a right and/or left ankle disability was aggravated by service-connected bilateral knee disability, an opinion on this basis is also warranted. 4. Entitlement to service connection for bilateral pes planus is remanded. The August 2020 JMPR found remand was warranted for the Board to address a July 2015 VA podiatry note which indicated an assessment of flexible pes planus. Additionally, the Board also observes that, proximate to the appeal period, a November 2014 VA treatment record also noted an assessment of flexible pes planus. Further, the Veteran’s November 1982 examination, conducted in conjunction with his entrance into his second period of active service, clinically noted that the Veteran had asymptomatic pes planus as listed under the summary of defects and diagnoses. Accordingly, the presumption of soundness does not apply to the pes planus as it was noted at entry to his second period of active service and thus the issue as to this disability is whether the Veteran’s bilateral pes planus was aggravated by his second period of active service. An opinion addressing the claim on this basis is warranted. Further, even if it found the Veteran’s bilateral pes planus was not aggravated by his second period of active service, the possibility exists that the disability may have been aggravated by his service-connected bilateral knee disability. In this regard, a November 2014 VA treatment record documented the Veteran reported that he had really bad knees and he felt that his knees were sometimes connected to the bad placement of his feet and they felt like they were flattening out. Accordingly, a VA opinion address the claim as aggravated by the Veteran’s service-connected bilateral knee disability is warranted. 5. Entitlement to service connection for a low back disability is remanded. The August 2020 JMPR found remand was warranted for the Board to address a February 2016 VA chiropractic consult note in which the Veteran reported his initial onset of back pain was while he was in military service in the 1990’s and that he described the pain as “on and off, not consistent, it’s always there but it’s bearable.” However, as further development is required, the Board will not presently address this claim on the merits, to include any related findings as to the Veteran’s credibility, and the February 2016 lay statement will be addressed when the claim is addressed on the merits. Specifically, additional development is required to address the claim as secondary to the Veteran’s service-connected bilateral knee disability. In this regard, VA treatment records, including records dated from July 2017 to September 2018 documented, in part, the Veteran had chronic low back pain complicated by chronic knee degeneration and pain, which implies there is a connection between these disabilities. Accordingly, a VA opinion addressing the claim as secondary to the Veteran’s service-connected bilateral knee disability is warranted. Additionally, a September 2014 VA treatment record documented, in part, that the Veteran had flatfoot and he thought this was aggravating his back pains. Thus, the claim for service connection for a low back disability is inextricably intertwined with the pending claim for service connection for bilateral pes planus. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, consideration of the claim for service connection for a low back disability must be deferred pending resolution of the bilateral pes planus claim. The matters are REMANDED for the following actions: 1. Obtain opinions from an appropriate clinician regarding the nature and etiology of the Veteran’s hypertension, right ankle disability, left ankle disability, bilateral pes planus and low back disability, with examination only if deemed necessary by the clinician. After review of the claims file, the clinician is asked to provide a response, with a rationale to support each proffered opinion, to the following: (a.) Is it at least as likely as not that service-connected PTSD caused the Veteran to become obese? Please explain (b.) Is it at least as likely as not that service-connected PTSD aggravated (any increase in disability) the Veteran’s obesity? Please explain (c.) If the answer to (a) or (b) is yes, is it at least as likely as not that the obesity or aggravation of obesity as a result of PTSD was a substantial factor in causing hypertension? Please explain; and (d.) If the answer to (a) or (b) is yes, is it at least as likely as not that the obesity or aggravation of obesity as a result of PTSD was a substantial factor in causing a left and/or right ankle disability? Please explain; and (e.) Is it at least as likely as not that hypertension would not have occurred but for obesity caused or aggravated by PTSD? Please explain (f.) Is it at least as likely as not that a left and/or right ankle disability would not have occurred but for obesity caused or aggravated by PTSD? Please explain (g.) Is it at least as likely as not that hypertension is proximately due to service-connected PTSD and/or service-connected obstructive sleep apnea? Please explain; (h.) Is it at least as likely as not that hypertension was aggravated (any increase in disability) by service-connected PTSD and/or service-connected obstructive sleep apnea? Please explain (i.) Is it at least as likely as not that a right and/or left ankle disability is proximately due to service-connected PTSD? Please explain; (j.) Is it at least as likely as not that a right and/or left ankle disability was aggravated (any increase in disability) by his service-connected PTSD and/or his service-connected bilateral knee disability? Please explain. (k.) Is it at least as likely as not that the Veteran’s bilateral pes planus, which existed prior to his second period of active service beginning in 1983, increased in severity during his second period of active service? Please explain. (l.) If the answer to (k) is yes, was the increase in severity clearly and unmistakably (undebatably) due to the natural progress of the disease? Please explain. (m.) Was bilateral pes planus at least as likely as not aggravated (any increase in disability) by his service-connected bilateral knee disability? Please explain. (n.) Whether the Veteran has a right and/or left ankle disability which is at least as likely as not (1) proximately due to service-connected PTSD, or (2) aggravated (worsened beyond its natural progression) by service-connected PTSD. Please explain (o.) Whether the Veteran has low back disability which is at least as likely as not (1) proximately due to his service-connected bilateral knee disability, or (2) aggravated (any increase in disability) by his service-connected bilateral knee disability. Please explain 2. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a SSOC and afford them an opportunity to respond before the record is returned to the Board. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.