Citation Nr: 21062899 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 09-42 218A DATE: October 12, 2021 ORDER Entitlement to service connection for cardiomyopathy is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's cardiomyopathy was caused by his service-connected right and left knee disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for cardiomyopathy are met. 38 U.S.C. §§ 1100, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1986 to December 1988 and from February 1991 to July 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In June 2012, the Veteran testified before the undersigned Veterans Law Judge in a Video Conference Board Hearing. A transcript of that hearing is of record. In September 2014, the Board denied the Veteran's claim for service connection for cardiomyopathy. As relevant herein, the Veteran appealed the denial of this claim to the U.S. Court of Appeals for Veterans Claims (Court/CAVC). In an August 2015 Order, based upon a July 2015 Joint Motion for Partial Remand (JMPR), the Court vacated that portion of the September 2014 decision that denied the Veteran's claim of entitlement to service connection for cardiomyopathy, and remanded this issue to the Board for further proceedings consistent with the JMPR. This issue was most recently before the Board in May 2021, when it was again remanded in order to obtain an opinion that addressed, in pertinent part, whether obesity, which the Board has found to be caused by the Veteran's knee disability, was a substantial factor in the development of cardiomyopathy; and whether the Veteran's cardiomyopathy would have not occurred but for the Veteran's obesity. The claim of entitlement to service connection for cardiomyopathy has now returned to the Board for further appellate action. Entitlement to Service Connection for Cardiomyopathy The Veteran asserts that the service-connected right and left knee disabilities led to weight gain and obesity which is the proximate cause of his cardiomyopathy. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be established 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 (a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The medical evidence includes a diagnosis of cardiomyopathy. See October 2020 VA examination report. Thus, the first element of Shedden/Wallin have been met. The Veteran is service connected for bilateral knee disabilities. Thus, the second element of the secondary service connection framework has been met. As to whether there is an etiological relationship between the Veteran's service-connected bilateral knee disabilities and his current cardiomyopathy, the Veteran contends that his bilateral knee disabilities led to obesity, which in turn led to his cardiomyopathy. There are two legal sources that guide the Board's inquiry. First, a precedential opinion of VA's General Counsel clarified that, while obesity in and of itself is not a disability for VA purposes, obesity can be an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOPGCPREC 1-2017 (Jan. 6, 2017). More recently, the Court determined that, for the purposes of this "intermediate step" analysis, the Board must consider both whether the Veteran's obesity was caused or aggravated by a service-connected disability. Walsh v. Wilkie, 32 Vet. App. 300 (2020). The analysis then becomes (1) whether the service-connected bilateral knee disabilities caused the Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected bilateral knee disabilities was a substantial factor in causing the cardiomyopathy; and (3) whether the cardiomyopathy would not have occurred but for obesity caused by the service-connected bilateral knee disabilities. The Veteran maintains that weight gain/obesity is a result of being unable to exercise due to knee pain. The Board has previously made the favorable finding that as a result of his service-connected right knee disability, the Veteran is unable to adequately exercise, which in turn, has led or contributed to his obesity. See November 2012 Board Decision. Turning to the question of whether obesity was a substantial factor in causing the Veteran's cardiomyopathy, a VA medical opinion was obtained in May 2021. The examiner stated that obesity could be one of the risk factors, but that multiple other etiologies could contribute to the development of cardiomyopathy, to include "HDL and other cardiology conditions." The examiner did not explain what those other cardiology conditions were. There was also no discussion/elaboration on how/whether each factor contributes more than the other. In addressing the final element of the Walsh analysis, whether the cardiomyopathy would not have occurred but for obesity caused by the service-connected bilateral knee disabilities, the May 2021 examiner merely restated his prior opinion that obesity could be one of the risk factors, but that multiple other etiologies could contribute to the development of cardiomyopathy, to include "HDL and other cardiology conditions." The examiner did not indicate that the Veteran had a diagnosed heart condition other than cardiomyopathy. The speculative terminology "could be" generally provides an insufficient basis for an award of service connection. Such limits the probative value of the May 2021 opinion. Given that no rationale was provided, the adequacy of the opinion is certainly questionable. The Board finds that a remand is not warranted. The value of the opinion is retained as it still indicates that obesity is a risk factor to the cause, development, or worsening of the Veteran's cardiomyopathy. Taken with an October 2007 VA treatment record noting the Veteran's weight is uncontrolled and contributing to his current morbidities, to include cardiovascular problems, the Board finds the evidence at least in equipoise that obesity was a substantial factor in causing the Veteran's cardiomyopathy and that cardiomyopathy would not have occurred but for obesity caused by the service-connected bilateral knee disabilities. There is no competent opinion to the contrary. Accordingly, the evidence is in at least equipoise, and thus, secondary service connection for cardiomyopathy is warranted, especially when resolving doubt in the Veteran's favor. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.