Citation Nr: 21072446 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 12-20 818A DATE: December 3, 2021 REMANDED Entitlement to service connection for hypertension, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a left-hand disability, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1993 to January 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by a VA Regional Office (RO). In September 2016, the Veteran testified before a Veterans Law Judge (VLJ) that is no longer employed at the Board. In an April 2021 letter, the Veteran was asked if he wanted another hearing before a current VLJ that would decide his appeal. There was no response to the letter. Therefore, the Board finds that the Veteran has waived his right to a hearing before another judge and will proceed with adjudication of the appeal. By way of background, this matter has previously been before the Board in August 2020 and most recently in June 2021 for necessary development, to include obtaining a VA medical opinion. Unfortunately, as will be discussed below, the resulting opinions were not responsive to the Board's directive and, therefore, further remand is required. See Stegall v. West, 11 Vet. App. 268, 271(1998). 1. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability is remanded. The Veteran contends that he is entitled to service-connection for hypertension claiming his hypertension is a result of his inability to exercise due to service-connected disabilities. See September 2016 Board Hearing Transcript, P. 39; see also November 2021 Informal Hearing Presentation. The Board notes, while obesity in and of itself is not a disability under the rating schedule, obesity may qualify as an "intermediate step" between a service-connected disability and a current disability where a claimant establishes that the obesity was caused by a service-connected disability and caused his or her the current disability. VA Off. Gen Counsel Prec. Op. 1-2017; see also Walsh v. Wilkie, 32 Vet. App. 300 (2020) (holding that G.C. Prec. Op. 1-2017 does not prohibit an inquiry into whether a service-connected disability aggravates a veteran's obesity). In response to the Board's June 2021 remand, the Veteran was afforded an addendum medical opinion in July 2021. For each of the Veteran's service-connected conditions, the examiner provided a nearly identical secondary negative nexus opinion essentially finding that hypertension is not "medically related" to any of his service-connected disabilities. For example, regarding the Veteran's service connected unifocal premature ventricular contractions (heart condition), the examiner opined that the Veteran's hypertension is not "medically related" to his heart condition. She went on to state "the hypertension is a separate entity from heart condition and unrelated to it". The examiner explained, "a thorough review of the medical literature failed to demonstrate a causal relationship...a nexus has not been established". Regarding obesity in particular, the examiner indicated that obesity is "a choice" and unrelated to the Veteran's service-connected conditions. She explained, "orthopedic conditions and other [service-connected] conditions do not preclude all forms of exercise as there are paraplegics who are not obese". Service connection, however, can be awarded if the following questions are answered in the affirmative: (1) whether the service-connected disability caused the Veteran to become obese or aggravated the Veteran's obesity; (2) if so, whether the obesity/aggravation of obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for (obesity caused/obesity aggravated) by the service-connected disability. Walsh v. Wilkie, 32 Vet. App. 300 (2020). Although the examiner noted the Veteran was not precluded from "all forms of exercise," the examiner did not address whether the service-connected disability/disabilities aggravated the Veteran's obesity and, in turn played "a substantial factor" in causing the hypertension. Id.; see also El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Although the examiner found the disabilities to be "unrelated" to the Veteran's obesity, absent the Board drawing independent inferences, the examiner's rationale is significantly lacking and generally conclusory. Therefore, clarification is warranted. See also Horn v. Shinseki, 25 Vet.App. 231, 240-42 (2012) (stating that under caselaw "an unexplained conclusory opinion is entitled to no weight in a service-connection context"). Thus, the Board finds a new VA medical opinion is needed to ascertain whether the Veteran's service-connected conditions caused or aggravated his hypertension and/or his obesity, which in turn was an intermediate step between the service-connected disability and his hypertension. 2. Entitlement to service connection for a left-hand disability, to include as secondary to a service-connected disability, is remanded. The Veteran contends that he is entitled to service-connection for a left-hand disability because he developed left hand pain as a result of using a cane to help him ambulate as secondary to his service-connected disabilities. See Board Hearing Transcript, pp. 24-25. see also November 2021 Informal Hearing Presentation. In response to the Board's June 2021 remand, the RO obtained an addendum opinion in July 2021 for the Veteran's left-hand disability. At which time, the examiner confirmed the diagnosis of a left-hand strain. For each of the Veteran's service-connected conditions, the examiner provided a nearly identical secondary negative nexus opinion. The examiner opined that "no aggravation nexus or plausible secondary relationship for [left-hand strain] diagnosis is established". She explained that dorsal hand pain was noted during examination however, the Veteran has full range of motion and x-rays were normal. The diagnosis is "based solely on pain to the dorsal surface of the left hand...treatment notes show no orthopedic hand complaints, he doesn't use [a] cane regularly". The examiner went on to state, "surely if hand complaints were as troubling as noted [during examination] and at hearing, the Veteran would have reported them, yet there are none...". The Board finds the July 2021 medical opinions to be inadequate for adjudicative purposes. Remand for additional development is accordingly warranted. The July 2021 examiner failed to adequately address the Veteran's contention that the use of a cane has caused and/or aggravated his left-hand disability. Specifically, she indicated that the Veteran does not regularly use a cane and then references a single treatment note that he "doesn't touch the cane to floor". However, the Veteran's medical treatment records indicate a lengthy history of cane use to assist with walking. For example, treatments notes in an August 2014 psychiatric consultation as well as a primary care nursing triage report indicate the Veteran ambulated with a cane and "motor function limited as walks with cane". A mental health nursing admission note from March 2015 and a pain clinic note from October 2017 also indicated the observed use of a cane for ambulatory support. The pain clinic notes from October 2017 also contained a report that the Veteran used a cane over the past eight years when pain from his low back, which travels down into his lower extremities, is really bad. Therefore, the Board finds the July 2021 examiner's opinion to be based on inaccurate facts as it is clear that the Veteran has used a cane, for ambulatory assistance, since at least 2011. See Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). The examiner did not provide a rationale to discount the reports of over a decade of cane use nor does it appear she considered the impact, if any, of the long-term use of a cane with the Veteran's currently diagnosed left-hand strain. Thus, the Board finds a new VA medical opinion is needed to ascertain whether the Veteran's left-hand strain was caused or aggravated by his use of a cane as secondary to his service-connected disabilities. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate and new clinician (not the July 2021 examiner) regarding the Veteran's claim seeking service connection for hypertension. The examiner is directed to review the claims folder and consider all lay statements and contentions. Whether a physical examination is necessary is left to the discretion of the examiner. After a thorough review of the claims file and examination (to the extent necessary), the examiner is asked to address the following: (a.) Whether the Veteran's hypertension is at least as likely as not caused or aggravated by his service-connected disabilities. (b.) If not, whether it is at least as likely as not that the service-connected disabilities caused or aggravated the Veteran's obesity; and if so, whether that resulting obesity is a substantial factor in causing the current hypertension; and whether the Veteran's hypertension would not have occurred but for the obesity caused or aggravated by the Veteran's service-connected disabilities. With regard to the term "aggravated," as used in 38 C.F.R. § 3.310 (b), the examiner is cautioned that this term does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must specifically address the Veteran's reports that his service-connected disabilities limit his ability to exercise and cause fatigue and pain. A complete rationale should be provided for any opinions reached. 2. Obtain an addendum opinion from an appropriate and new clinician (not the July 2021 examiner) regarding the Veteran's claim seeking service connection for left-hand strain. The examiner is directed to review the claims folder and consider all lay statements and contentions. Whether a physical examination is necessary is left to the discretion of the examiner. After a thorough review of the claims file and examination (to the extent necessary), the examiner is asked to address the following: Whether it is at least as likely as not that the Veteran's left-hand strain was caused or aggravated by his service-connected disabilities, including due to his use of a cane to ambulate since at least 2011 due to his service-connected disabilities. The examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310 (b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner should consider all medical and lay evidence of record. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to provide a full rationale to explain the reasons behind any opinions expressed and conclusions reached. (Continued on the next page) 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.