Citation Nr: 21071097 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-54 246 DATE: November 29, 2021 ORDER Entitlement to a rating in excess of 20 percent for left lower extremity neuropathy is dismissed. Entitlement to service connection for weight gain is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for right lower extremity varicose veins is remanded. Entitlement to service connection for left lower extremity varicose veins is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a rating in excess of 30 percent for left total knee replacement is remanded. Entitlement to a rating in excess of 10 percent for right foot metatarsalgia with pes planus is remanded. FINDINGS OF FACT 1. During the January 2021 Board of Veterans' Appeals (Board) hearing, prior to the promulgation of a decision in the appeal, the Veteran explicitly and unambiguously withdrew the issue of entitlement to service connection for left lower extremity neuropathy, with a full understanding of the consequences of such action. 2. Obesity is not a disability for VA benefits purposes. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding entitlement to a rating in excess of 20 percent for left lower extremity neuropathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for weight gain have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1968 to April 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2010 and November 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a January 2021 virtual hearing. At the January 2021 hearing, the Veteran and his attorney explicitly indicated that entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was not being raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, such is not characterized as an issue on appeal and will not be addressed further. 1. Entitlement to a rating in excess of 20 percent for left lower extremity neuropathy. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made on the record at a hearing by the appellant or by his or her authorized representative. Id. In the present case, the appellant, at the January 2021 Board hearing, advised that he wished to withdraw the appeal seeking entitlement to a rating in excess of 20 percent for left lower extremity neuropathy. See January 2021 hearing transcript. Thus, he has withdrawn the appeal as to this issue and, hence, there remains no allegation of error of fact or law for appellate consideration. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review the appeal regarding entitlement to entitlement to a rating in excess of 20 percent for left lower extremity neuropathy and it is dismissed. 2. Entitlement to service connection for weight gain. Service connection may be established for a disability resulting from injury or disease incurred during or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In this case, the Veteran seeks service connection for weight gain. A "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service-connected disabilities"). Disability for VA compensation purposes refers to impairment of earning capacity due to a disease or injury, rather than to a disease or injury itself. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68; Allen, 7 Vet. App. at 444-45. With respect to the Veteran's claimed weight gain, obesity itself is not a "disability" for VA benefit compensation purposes. The case law observes that obesity itself, to include any weight fluctuations, is neither a disease nor an injury which VA may compensate. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). The Board acknowledges that service connection may be granted for disability that is caused or aggravated by an existing service-connected disease or injury, and that obesity may be a proximate causal step, that is, an intermediate link in the pathophysiological mechanism by which an existing service-connected disability causes or aggravates a non-service-connected disability. VAOPGCPREC 1-2017 (Jan. 6, 2017). In this case, however, the Veteran seeks service connection for weight gain as a disability due to his service-connected disabilities, not as an intermediate link. See March 2010 Veteran correspondence. To the extent his weight gain may serve as an intermediate link between claimed nonservice-connected disabilities and his service-connected disabilities, such is addressed below as it may relate to various disabilities being remanded for additional development, but, ultimately, service connection for weight gain as a disability must be denied as it is not a disability for VA compensation purposes. See Marcelino, 29 Vet. App. at 157-58. In sum, there is no competent evidence of current disability upon which to predicate a grant of service connection on any basis, and, hence, no valid claim of service connection for weight gain. As such, service connection for weight gain must be denied as a matter of law, and the benefit of the doubt doctrine is therefore not for application. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Entitlement to service connection for a back disability is remanded. The Veteran contends that his back disability is secondary to his service-connected left total knee replacement and/or secondary to his service-connected right foot metatarsalgia with pes planus. See also January 2021 hearing (testifying that shortly after injuring his left knee during service his back problems began). The Veteran was afforded a VA examination in August 2010 to determine the nature and etiology of his back disability. On August 2010 VA examination, the Veteran was diagnosed with lumbar disc disease with right sciatica, and it was opined that any relationship of his spine to his joints in the right foot would have to be considered less likely than not the case. The examiner also stated that any extent of any aggravation cannot be determined and any baseline cannot be determined. After review of the August 2010 VA examination, the Board finds the examination to be inadequate. The opinions provided were conclusory in nature, without supporting rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In addition, the examination does not adequately address aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Accordingly, this matter must be remanded for another examination to determine the nature and etiology of his back disability. Finally, the Veteran has reasonably raised the theory of entitlement that his obesity is an intermediate step due to his service-connected disabilities and his back disability. See March 2010 Veteran correspondence. Although obesity is not a condition for which service connection may be granted, obesity may qualify as an "intermediate step" between a service-connected disability and another current disability. See VAOPGCPREC 1-2017; see also Garner v. Tran, 33 Vet. App. 241 (2021); Walsh v. Wilkie, 32 Vet. App. 300 (2020). In a secondary service connection claim, a theory of obesity as an intermediate step is raised when there is some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected condition. Garner, 33 Vet. App. at 247-49. This theory of entitlement must be considered on remand. 4. Entitlement to service connection for right lower extremity varicose veins is remanded. 5. Entitlement to service connection for left lower extremity varicose veins is remanded. The Veteran has established service connection for left total knee replacement, and the evidence of record shows that the Veteran underwent left total knee replacement surgery in September 2003. See September 12, 2003 VA operative report. The Veteran contends that his right and left lower extremity varicose veins are secondary to his service-connected left total knee replacement and/or secondary to his service-connected right foot metatarsalgia with pes planus. See February and March 2010 correspondence. The Veteran was afforded VA examinations in August 2010 and July 2011 to determine the nature and etiology of his right and left lower extremity varicose veins. On August 2010 VA examination, the Veteran was diagnosed with right and left varicose veins, and it was opined that the varicosities are not caused by or a result of his left knee condition. On July 2011 VA examination, the examiner opined that it was less likely as not that the metatarsalgia of the right foot or left knee replacement are causal for the varicose veins of the right and left varicose veins. It was further explained that there are a number of factors which predispose a person to develop varicose veins, and the most significant factors for the Veteran were his occupation which involved a lot of standing, and his obesity. After review of the August 2010 and July 2011 VA examinations and opinions, the Board finds them to be inadequate. The opinions are conclusory in nature, without supporting rationale. See Stefl, 21 Vet. App. at 124. In addition, the opinions do not adequately address aggravation. El-Amin, 26 Vet. App. at 140-41. Accordingly, these matters must be remanded for an addendum opinion as to the etiology of the Veteran's right and left varicose veins. Finally, to the extent the July 2011 VA examiner indicated that obesity was a risk factor for the development of varicose veins, although obesity is not a condition for which service connection may be granted, obesity may qualify as an "intermediate step" between a service-connected disability and another current disability. See VAOPGCPREC 1-2017; see also Garner, 33 Vet. App. at 247-49; Walsh v. Wilkie, 32 Vet. App. 300 (2020). In a secondary service connection claim, a theory of obesity as an intermediate step is raised when there is some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected condition. Garner, 33 Vet. App. at 247-49. 6. Entitlement to service connection for erectile dysfunction is remanded. The Veteran contends that his erectile dysfunction is secondary to his service-connected disabilities, to specifically include medication to treat his service-connected disabilities. The Veteran was afforded a VA examination in July 2011 to determine the nature and etiology of his erectile dysfunction. The July 2011 VA examiner opined that the Veteran's diagnosed erectile dysfunction was less likely as not related to medications taken to treat his service-connected knee and foot pathology. The examiner further stated that erectile dysfunction can be secondary to his anti-hypertensive medication. After review of the July 2011 VA examination and opinion, the Board finds the examination to be inadequate. The opinion provided does not adequately address aggravation. El-Amin, 26 Vet. App. at 140-41. Further, because the July 2011 VA examiner indicated that the Veteran's erectile dysfunction may be secondary to his hypertension, the matter is inextricably intertwined with the hypertension claim remaining on appeal, and appellate consideration of service connection for erectile dysfunction is deferred pending resolution of the hypertension claim on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). 7. Entitlement to service connection for hypertension is remanded. The Veteran contends that his hypertension is directly related to service, or alternatively, secondary to his service-connected disabilities. The Veteran was afforded a VA examination in July 2011 to determine the nature and etiology of his hypertension. On July 2011 VA examination, it was noted that in as many as 95 percent of reported high blood pressure cases in the United States, the underlying cause cannot be determined. It was therefore opined that it was less likely as not that the Veteran's right foot metatarsalgia with pes planus and left lower extremity neuropathy were causal for his hypertension. After review of the July 2011 VA examination and opinion, the Board finds the examination to be inadequate. The opinion provided does not adequately address aggravation. El-Amin, 26 Vet. App. at 140-41. In addition, the opinion did not address direct service connection theory of entitlement. The Board finds that this is particularly significant in this case as the Veteran's December 1970 separation report of medical examination reflected an elevated blood pressure reading of 138/92. A June 1991 VA treatment record found a blood pressure reading of 130/90. On June 1976 VA examination, a blood pressure reading of 130/86 was found. A September 1994 VA treatment record found a blood pressure reading of 146/90. At least as early as July 1997, VA treatment records reflect a diagnosis of hypertension and it was noted he was placed on Lisinopril with good control of hypertension. Accordingly, this matter must be remanded for an addendum opinion as to the etiology of the Veteran's hypertension. 8. Entitlement to a rating in excess of 30 percent for left total knee replacement is remanded. 9. Entitlement to a rating in excess of 10 percent for right foot metatarsalgia with pes planus is remanded. The most recent VA examination in this case was conducted in February 2016, more than five years ago. At the January 2021 Board hearing, the Veteran testified that his left knee and right foot disabilities had worsened in severity. The Board finds that a contemporaneous examination is necessary to assess the current nature, extent, and severity of left total knee replacement and right foot metatarsalgia with pes planus disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature, onset and etiology of the Veteran's back disability. After a review of the claims file, the examiner should opine as to whether it is at least as likely as not: (a) The Veteran's diagnosed back disability is proximately due to, the result of, or caused by his service-connected left total knee replacement and/or service-connected right foot metatarsalgia with pes planus. (b) The Veteran's diagnosed back disability was aggravated by his service-connected left total knee replacement and/or service-connected right foot metatarsalgia with pes planus. The examiner must particularly consider whether obesity was an "intermediate step" between a service-connected musculoskeletal disability(ies), in causing or contributing to any degree to his back disability. The examiner must also acknowledge and discuss the Veteran's competent statements as to his inability to be active due to his service-connected musculoskeletal disabilities. The examiner must provide a rationale for all opinions expressed. Failure to provide a rationale will result in the opinion being found to be inadequate. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Please note that it is not necessary that a service-connected disability be diagnosed or even service-connected at the time the Veteran's back disability was incurred to establish service connection, and reliance on this fact will render any secondary opinion inadequate. 4. Obtain an addendum opinion regarding the onset and etiology of the Veteran's right and left lower extremity varicose veins. After a review of the claims file, the examiner should opine as to whether it is at least as likely as not: (a) The Veteran's diagnosed right and left lower extremity varicose veins are proximately due to, the result of, or caused by his service-connected left total knee replacement and/or service-connected right foot metatarsalgia with pes planus. (b) The Veteran's diagnosed right and left lower extremity varicose veins were aggravated by his service-connected left total knee replacement and/or service-connected right foot metatarsalgia with pes planus. The examiner must particularly consider whether obesity was an "intermediate step" between a service-connected musculoskeletal disability(ies), in causing or contributing to any degree to right and left lower extremity varicose veins. The examiner must also acknowledge and discuss the Veteran's competent statements as to his inability to be active due to his service-connected musculoskeletal disabilities. The examiner must provide a rationale for all opinions expressed. Failure to provide a rationale will result in the opinion being found to be inadequate. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Please note that it is not necessary that a service-connected disability be diagnosed or even service-connected at the time right and left lower extremity varicose veins were incurred to establish service connection, and reliance on this fact will render any secondary opinion inadequate. 5. Obtain an addendum opinion regarding the onset and etiology of the Veteran's erectile dysfunction. After a review of the claims file, the examiner should opine as to whether it is at least as likely as not: (a) The Veteran's erectile dysfunction is proximately due to, the result of, or caused by a service-connected disability, and specifically any medication to treat a service-connected disability. (b) The Veteran's erectile dysfunction was aggravated by a service-connected disability, and specifically any medication to treat a service-connected disability. The examiner must provide a rationale for all opinions expressed. Failure to provide a rationale will result in the opinion being found to be inadequate. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Please note that it is not necessary that a service-connected disability be diagnosed or even service-connected at the time the erectile dysfunction was incurred to establish service connection, and reliance on this fact will render any secondary opinion inadequate. 6. Obtain an addendum opinion regarding the onset and etiology of the Veteran's hypertension. After a review of the claims file, the examiner should opine as to whether it is at least as likely as not: (a) The Veteran's hypertension had its onset or is otherwise related to service. In providing the opinion, the examiner is directed to acknowledge the elevated blood pressure readings on December 1970 separation examination, June 1991 VA treatment record, June 1976 VA examination, and September 1994 VA treatment record. (b) The Veteran's hypertension is proximately due to, the result of, or caused by a service-connected disability. (c) The Veteran's hypertension was aggravated by a service-connected disability. The examiner must provide a rationale for all opinions expressed. Failure to provide a rationale will result in the opinion being found to be inadequate. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Please note that it is not necessary that a service-connected disability be diagnosed or even service-connected at the time the hypertension was incurred to establish service connection, and reliance on this fact will render any secondary opinion inadequate. 7. Schedule the Veteran for a VA examination (or telehealth interview, review of record, etc., if an in-person examination is not feasible) to determine the current nature and severity of his left total knee replacement. All findings should be reported in detail. The examiner should identify all left knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-ups. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. If unable to opine without speculation, the examiner should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 8. Schedule the Veteran for a VA examination (or telehealth interview, review of record, etc., if an in-person examination is not feasible) to determine the current nature and severity of his right foot metatarsalgia with pes planus. All findings should be reported in detail. The examiner should identify all right foot pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-ups. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or repeated use over time. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any opinion cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.