Citation Nr: 21070073 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-08 779 DATE: November 22, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, and/or as due to exposure to herbicide agents, is remanded. Entitlement to an initial compensable rating for chronic kidney renal disease prior to December 30, 2019, and in excess of 60 percent, thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1974 to March 1978. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these issues in October 2019 for further development by the RO. The case has been returned to the Board for further appellate action. The issue of entitlement to service connection for a psychiatric disorder was also remanded. The RO granted service connection for unspecified depressive disorder, with anxious distress, in an August 2020 rating decision. As this is a full grant of this issue, it is no longer in appellate status. Following remand, the Veteran indicated via a telephone conversation that he wanted to withdraw the pending claims; he was provided notice regarding how to effectuate a valid withdrawal of an appeal. See August 2020 VA form 27-0820 (report of general information) and subsequent development letter. As the Veteran has not submitted a withdrawal pursuant to the applicable requirements, the claim remains pending. 38 C.F.R. § 19.55; DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Thus, the Board will proceed with adjudication of the claims. 1. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, and/or as due to exposure to herbicide agents, is remanded. Remand is warranted to obtain an addendum medical opinion regarding the nature and etiology of the Veteran's hypertension. The medical opinion dated December 2019, which opined against service connection, stated that the Veteran's hypertension is more likely than not due to his commonly known risk factors, to include prior obesity and sedentary lifestyle. Following remand, the Veteran's representative contended that this opinion did not address whether his obesity was a result of service-connected diabetes mellitus, type II. See October 2021 Appellate Brief. The longstanding policy of VA is 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, consistent with Title 38, United States Code. However, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis pursuant to 38 C.F.R. § 3.310. See VAOPGCPREC 1-2017. It is this "intermediate step" that the Veteran is arguing. Medical evidence associated with the claims file indicates obesity, and therefore remand is required. 2. Entitlement to an initial compensable rating for chronic kidney renal disease prior to December 30, 2019, and in excess of 60 percent, thereafter, is remanded. The Veteran's chronic kidney renal disease is rated under 38 C.F.R. § 4.115b, DC 7541, which provides for rating the condition as renal dysfunction. The criteria for rating genitourinary system diseases as renal dysfunction include consideration of whether a Veteran is service connected for hypertension. See 38 C.F.R. § 4.115a. Specifically, the rating criteria for awards of a noncompensable rating, 30 percent, and 60 percent rating under 38 C.F.R. § 4.115a, explicitly contemplate service-connected hypertension and its disabling effects. As the outcome of the Veteran's claim for service connection for hypertension may impact his claim of entitlement to an initial rating in excess of those currently assigned, the latter claim is inextricably intertwined with the former claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Therefore, adjudication of the increased rating claim must be deferred until the RO has adjudicated the Veteran's remanded service connection claim. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, obtain an addendum opinion from the examiner who conducted the December 2019 VA examination or an appropriate medical professional if the examiner is unavailable to determine the nature and etiology of the Veteran's hypertension. A new examination is only necessary if deemed so by the clinician. After reviewing the claims folder in its entirety, the examiner should address the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus, type II, caused or aggravated the Veteran's obesity? (b) If the answer to (a) is "yes", is it is at least as likely as not (50 percent or greater probability) that the causation or aggravation of obesity as a result of the service-connected diabetes mellitus, type II, was a substantial factor in causing hypertension; and (c) Is it at least as likely as not (50 percent or greater probability) that the hypertension only occurred because of the obesity that was caused or aggravated by the service-connected diabetes mellitus, type II? The Board calls the examiner's attention to the contentions set out in the October 2021 Appellate Brief. All testing deemed necessary, to include a full VA examination if appropriate, must be conducted. (Continued on the next page) A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. 3. Following completion of directives #1-2, readjudicate the Veteran's claims based on the entirety of the evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) and afforded the requisite opportunity to respond. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.