Citation Nr: 21062504 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 09-00 904 DATE: October 7, 2021 REMANDED The issue of entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 1955 to July 1959, October 1959 to August 1975, and from March 1977 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of a Department of Veterans Affairs (VA) Regional Offices (RO). Jurisdiction of the Veteran's claims file currently resides with the San Diego, California RO. In August 2015, the Board found that new and material evidence had been received to reopen previously-denied claims of entitlement to service connection for PTSD and hypertension with heart disease. The Board remanded these reopened issues, as well as entitlement to service connection for diabetes mellitus, for additional development. Subsequently, these issues were remanded again by the Board in June 2016. In August 2014 and June 2019, the Veteran testified at Board hearings conducted before two separate Veterans Law Judges (VLJs). Transcripts of these hearings are associated with the Veteran's claims file. The law requires that a VLJ who conducts a hearing on appeal participate in any decision made on that appeal, and that the matter will be decided by a three-member panel of VLJs. See 38 U.S.C. § 7102; 38 C.F.R. § 20.706. The United States Court of Appeals for Veterans Claims (Court) has held that a Veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2011). In June 2019, the Veteran indicated that he did not want another hearing before a third VLJ. Thereafter, in November 2019, the Board granted service connection for CAD and diabetes mellitus. The Board also dismissed the issue of service connection for PTSD and remanded the issue of service connection for hypertension. Service connection for hypertension was again remanded by the Board in October 2020 and August 2021. Since the October 2020 remand, one of the VLJs before whom the Veteran testified ceased her employment with the Board as a VLJ. As such, single judge disposition of the appeal now is appropriate. Service Connection for Hypertension After reviewing the evidence of record, the Board finds that remand is warranted for the provision of an additional VA medical opinion. Specifically, in August 2021, a VA clinician opined that it was less likely than not that the Veteran's current hypertension was proximately due to his service-connected diabetes mellitus. In support of this conclusion, the August 2021 clinician indicated that the etiology of the Veteran's hypertension was his obesity and family history (genetics) of hypertension. In January 2017, VA's Office of General Counsel (OGC) issued a precedential opinion finding that although obesity cannot be service connected on a direct basis, obesity may service as an intermediate step between a service-connected disability and a condition claimed on a secondary basis. VAOPGCPREC 1-2017. Precedential opinions issued by OGC are binding on the Board. See 38 U.S.C. § 7104(c). The concept of obesity as an "intermediate step" in the service-connection context was recently addressed by the Court of Appeals for Veterans Claims (Court) in Garner v. Tran. 33 Vet. App. 241 (2021). In Garner, the Court provided the following non-exhaustive list of considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step: (1) mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); (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 (e.g., weight gain), 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. at 248. The Board finds Garner to be applicable in the instant case. Specifically, consideration (1) has been raised by the record as the following service-connected disabilities may have caused mobility limitations or reduced physical activity which contributed to the Veteran's weight gain: CAD; degenerative joint disease, L4-5, with L5 sacralization (back disability); diabetes mellitus; and radiculopathy of both lower extremities. Further, consideration (2) has been raised by the record as the Veteran is also service-connected for anxiety disorder, not otherwise specified (NOS) with unspecified psychotic disorder. As such, the Board finds that remand is warranted for an additional opinion that explores whether the Veteran's CAD, back disability, diabetes mellitus, bilateral lower extremity radiculopathy, or anxiety disorder NOS with unspecified psychotic disorder contributed to weight gain. If such disabilities contributed to the Veteran's weight gain, then the Veteran's obesity may possibly be considered an "intermediate step" for the purposes of granting service connection for hypertension on a secondary basis under 38 C.F.R. § 3.310. The matter is REMANDED for the following action: Forward the Veteran's claims file to an appropriate VA clinician (a different clinician that the one who provided the May 2021 and August 2021 opinions) for a medical opinion to address the topic of weight gain and/or obesity in the context of the Veteran's case. The Veteran's claims file should be made available to and be reviewed by the clinician in conjunction with providing the opinion. Thereafter, the clinician should address whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected CAD, back disability, diabetes mellitus, bilateral lower extremity radiculopathy, and/or anxiety disorder NOS with unspecified psychotic disordereither individually or combinedcontributed to weight gain or obesity during the Veteran's lifetime. In offering the requested opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.