Citation Nr: 21073302 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 15-00 715 DATE: December 8, 2021 ORDER Entitlement to service connection for trochanteric pain syndrome of the left hip, as secondary to service-connected posttraumatic stress disorder (PTSD) on an aggravation basis, is granted. Entitlement to service connection for trochanteric pain syndrome of the right hip, as secondary to service-connected PTSD on an aggravation basis, is granted. Entitlement to service connection for a lumbosacral strain, as secondary to service-connected PTSD on an aggravation basis, is granted. Entitlement to service connection for diabetes mellitus, as secondary to service-connected PTSD on an aggravation basis, is granted. Entitlement to service connection for hypertension, as secondary to service-connected PTSD on an aggravation basis, is granted. REMANDED Entitlement to service connection for a right knee disability, as secondary to service-connected PTSD, is remanded. FINDINGS OF FACT 1. The Veteran's left hip disability is aggravated by her service-connected PTSD. 2. The Veteran's right hip disability is aggravated by her service-connected PTSD. 3. The Veteran's back disability is aggravated by her service-connected PTSD. 4. The Veteran's diabetes mellitus is aggravated by her service-connected PTSD. 5. The Veteran's hypertension is aggravated by her service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for trochanteric pain syndrome of the left hip, as secondary to service-connected PTSD on an aggravation basis, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for trochanteric pain syndrome of the right hip, as secondary to service-connected PTSD on an aggravation basis, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a lumbosacral strain, as secondary to service-connected PTSD on an aggravation basis, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for diabetes mellitus, as secondary to service-connected PTSD on an aggravation basis, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for a hypertension, as secondary to service-connected PTSD on an aggravation basis, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1984 to December 1988, and from November 2001 to November 2002. This matter comes to the Board of Veterans' Appeals (Board) from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's substantive appeal (VA Form 9), dated in December 2014, she requested a videoconference hearing. However, in a statement dated in September 2015, the Veteran withdrew her request for a hearing. In June 2018, the Board remanded the appeal for evidentiary development. In a June 2020 decision, the Board determined that new and material evidence had been submitted and reopened the claims of service connection for a back disorder and service connection for hypertension, both claimed as secondary to weight gain due to service-connected PTSD and obstructive sleep apnea. The Board then remanded the appeal for further evidentiary development and a de novo review of the evidence. In February 2021, the Board remanded the claim to provide additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). To establish service connection based on a continuity of symptoms, there must be evidence demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of the same symptoms; and (3) a causal link between the present disability and the continuous symptoms. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Veterans are qualified ("competent") to testify to the presence of observable symptoms. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Lay evidence can be competent and sufficient evidence of a diagnosis or to establish cause if "(1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board is required to weigh the evidence of record, including the medical evidence, to make factual determinations. Cf. Evans v. West, 12 Vet. App. 22, 30 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for trochanteric pain syndrome of the left hip. 2. Entitlement to service connection for trochanteric pain syndrome of the right hip. 3. Entitlement to service connection for a lumbosacral strain. The Veteran contends that she suffers from lumbar spine and bilateral hip disabilities that were incurred as a result of weight gain caused by her service-connected PTSD. The evidence shows that the Veteran has been diagnosed as having trochanteric pain syndrome of the bilateral hips and a lumbosacral strain. The evidence also shows that the Veteran has been as assessed as overweight/obese. See, e.g., VA treatment record (February 2020). Although obesity itself is not considered a disease or injury for which direct or secondary service connection may be granted, obesity can act as an "intermediate step" to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). Specifically, VA's General Counsel has held that where it is shown that a service-connected disability causes a veteran to become obese and that obesity, in turn, is a substantial factor in causing additional disability, which disability, but for the Veteran's obesity, would not have occurred, the resulting additional disability can be service-connected on a secondary basis. The Veteran's service-connected disabilities include PTSD, evaluated as 50 percent disabling effective April 9, 2009, and evaluated as 70 percent disabling effective November 2, 2012. The Veteran has maintained that her service-connected PTSD is a barrier for physical activity which caused her obesity, and in turn caused her lumbar spine and bilateral hip disabilities. The Veteran is competent to report the occurrence of lay-observable events such as symptoms or certain readily observable disabilities. 38 U.S.C. § 1153(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to diagnose her own medical condition. In March 2010, the Veteran was afforded a VA examination for her lumbar spine. The VA examiner diagnosed the Veteran with chronic lower back pain and a lumbar strain. The Veteran reported that she was seen during service in 1985 due to complaints of back pain after lifting object, however there was no evaluation or treatment for her lumbar spine until 2004. The examiner added that she could not speculate as to etiology of the Veteran's disability without resorting to mere speculation. In August 2020, a VA examiner provided a medical opinion linking the Veteran's PTSD to her weight gain, noting that it is well documented that PTSD in the veteran population often leads to social isolation, impaired functioning, mood changes, and weight gain, with a strong propensity for obesity related to an associated metabolic dysfunction. The examiner added that multiple studies have documented that veterans of all ages, who have PTSD, even when adjusting for demographics, depression, antipsychotic medication use, and physical activity, have a greater likelihood of being overweight and obese than the general population, noting that one study found that 82.8 percent of a PTSD study population was either overweight or obese. The examiner noted that obesity places someone with a higher risk of comorbidities associated with excessive body adiposity. The examiner also noted that an accumulation of excess body weight increases pressure on the joints, especially the back, hips, knees and ankles; and that over time, weight can cause cartilage in these joints to wear down, and this may lead to severe pain and difficulty walking. The examiner concluded that the Veteran's back, knee, and hip disabilities are at least as likely as not aggravated beyond their natural progression by her PTSD. In August 2021, the Veteran was afforded another VA examination for her lumbar spine. The examiner diagnosed the Veteran with a lumbosacral strain. The Veteran asserted that her disability originated in 1985, during service, when she fell down two flights of steep steps and hurt her back. The Veteran added that her symptoms began with excruciating lower back pain, which continues to the present. The August 2021 VA examiner also provided an opinion that the Veteran's lumbar spine disability is less likely than not aggravated beyond its natural progression by her PTSD. The examiner also disputed the August 2020 medical opinion, stating that the provider did not mention medical evidence to support aggravation of the condition, and that without the medical evidence it is not possible to give a positive opinion without resorting to speculation. In August 2021, the Veteran was also afforded a VA examination for her hips. The examiner diagnosed the Veteran with trochanteric pain syndrome of the bilateral hips. The Veteran asserted that her disability originated in 2003 with lower back pain and sharp pain down her left leg and now pain to her left and right hips, and that she currently complains of sharp pain down her left leg and pain in her left and right hips. The August 2021 VA examiner also provided an opinion that the Veteran's bilateral hip disability is less likely than not aggravated beyond its natural progression by her PTSD. The examiner also disputed the August 2020 medical opinion, stating that the provider did not mention medical evidence to support aggravation of the condition, and that without the medical evidence it is not possible to give a positive opinion without resorting to speculation. The Board finds that the August 2020 opinion is entitled to significant probative weight, as the examiner explained the reasons for the conclusions based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Additionally, the Boards finds that the August 2020 opinion is highly probative as to whether the Veteran's back and hip disabilities are aggravated by her service-connected PTSD, as the August 2020 examiner explained that PTSD leads to weight gain, with a strong propensity for obesity related to an associated metabolic dysfunction and that an accumulation of excess body weight increases pressure on the joints, especially the back and hips,; and that over time, weight can cause cartilage in these joints to wear down, and this may lead to severe pain and difficulty walking. The Board finds that the August 2021 opinion is afforded little probative value if any, as the August 2021 VA examiner provided little rationale for her negative opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Weighing the probative evidence of record, the Board finds that the August 2020 opinion outweighs the August 2021 negative opinions. As the evidence is at least in equipoise that obesity is the intermediate step here, and the VA medical opinion provided in August 2020. Affording the Veteran the benefit of the doubt, entitlement to service connection for trochanteric pain syndrome of the bilateral hips and a lumbosacral strain, as secondary to service-connected PTSD on an aggravation basis, is granted. 4. Entitlement to service connection for diabetes mellitus. 5. Entitlement to service connection for hypertension. The Veteran contends that she suffers from diabetes mellitus and hypertension that were incurred as a result of weight gain caused by her service-connected PTSD. The medical evidence shows that the Veteran has been diagnosed as having diabetes mellitus and hypertension. As stated above, the evidence also shows that the Veteran has been assessed as overweight/obese. Although obesity itself is not considered a disease or injury for which direct or secondary service connection may be granted, obesity can act as an "intermediate step" to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See Marcelino, 29 Vet. App. at 155. The Veteran has maintained that her service-connected PTSD is a barrier for physical activity which caused her obesity, and in turn caused her diabetes mellitus and hypertension. In July 2009, the Veteran was afforded a VA examination for her hypertension. The VA examiner diagnosed the Veteran with hypertension. The Veteran reported that her hypertension began on around 2003, and she describes the symptoms of blood pressure going up and down, blurred vision, severe headaches and dizziness. In August 2020, a VA examiner provided a medical opinion linking the Veteran's PTSD to her weight gain, noting that it is well documented that PTSD in the veteran population often leads to social isolation, impaired functioning, mood changes, and weight gain, with a strong propensity for obesity related to an associated metabolic dysfunction. The examiner added that multiple studies have documented that veterans of all ages, who have PTSD, even when adjusting for demographics, depression, antipsychotic medication use, and physical activity, have a greater likelihood of being overweight and obese than the general population, noting that one study found that 82.8 percent of a PTSD study population was either overweight or obese. The examiner noted that obesity places someone with a higher risk of comorbidities associated with excessive body adiposity, such as hypertension and diabetes. The examiner concluded that the Veteran's hypertension and diabetes are at least as likely as not aggravated beyond their natural progression by her PTSD. In August 2021, the Veteran was afforded another VA examination for her hypertension. The examiner diagnosed the Veteran with hypertension. The Veteran asserted that her disability originated in 2010. Based on a review of the Veteran's medical records, the examiner noted that the Veteran's hypertension was diagnosed in 2014, and that no records have been found to confirm aggravation of the Veteran's hypertension. Based on this, the examiner opined that the Veteran's hypertension was less likely than not aggravated beyond its natural progression by the Veteran's PTSD. The examiner also disputed the August 2020 medical opinion, stating that the provider did not mention medical evidence to support aggravation of the condition, and that without the medical evidence it is not possible to give a positive opinion without resorting to speculation. In August 2021, the Veteran was also afforded a VA examination for her diabetes mellitus. The examiner did not provide a diagnosis of diabetes mellitus, but noted there was an impairment of fasting glucose. The examiner noted that the Veteran's most recent HgBA1C was elevated. The August 2021 VA examiner also provided an opinion that the Veteran's claimed disability is less likely than not aggravated beyond its natural progression by her PTSD, as it did not meet the criteria for a diagnosis of diabetes mellitus. The examiner also disputed the August 2020 medical opinion, stating that the provider did not mention medical evidence to support aggravation of the condition, and that without the medical evidence it is not possible to give a positive opinion without resorting to speculation. The Board finds that the August 2020 opinion is entitled to significant probative weight, as the examiner explained the reasons for the conclusions based on an accurate characterization of the evidence of record. See Nieves-Rodriguez, 22 Vet. App. 295 at 304. Additionally, the Boards finds that the August 2020 opinion is highly probative as to whether the Veteran's diabetes mellitus and hypertension are aggravated by her service-connected PTSD, as the August 2020 examiner explained that PTSD leads to weight gain, with a strong propensity for obesity related to an associated metabolic dysfunction and that obesity places someone with a higher risk of comorbidities associated with excessive body adiposity, such as hypertension and diabetes. The Board finds that the August 2021 opinion is afforded little probative value if any. To this extent, the August 2021 VA examiner's finding that the Veteran did not have a current diagnosis of diabetes mellitus was factually inaccurate, as the medical evidence of record confirms that the Veteran has been diagnosed as having diabetes mellitus during the appeal period. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). As to the August 2021 VA examiner's negative opinion regarding hypertension, the examiner provided little rationale for her negative opinion. See Nieves-Rodriguez, 22 Vet. App. at 304. Weighing the probative evidence of record, the Board finds that the August 2020 opinions outweighs the August 2021 negative opinions. As the evidence is at least in equipoise that obesity is the intermediate step here, and the VA medical opinion provided in August 2020. Affording the Veteran the benefit of the doubt, entitlement to service connection for diabetes mellitus and hypertension, as secondary to service-connected PTSD on an aggravation basis, is granted. REASONS FOR REMAND Entitlement to service connection for a right knee disability is remanded. The Veteran asserts that her right knee disability was incurred as a result of weight gain caused by her service-connected PTSD. Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeal. In August 2020, a VA examiner provided a medical opinion linking the Veteran's PTSD to her weight gain, noting that it is well documented that PTSD in the veteran population often leads to social isolation, impaired functioning, mood changes, and weight gain, with a strong propensity for obesity related to an associated metabolic dysfunction. The examiner added that multiple studies have documented that veterans of all ages, who have PTSD, even when adjusting for demographics, depression, antipsychotic medication use, and physical activity, have a greater likelihood of being overweight and obese than the general population, noting that one study found that 82.8 percent of a PTSD study population was either overweight or obese. The examiner noted that obesity places someone with a higher risk of comorbidities associated with excessive body adiposity. The examiner also noted that an accumulation of excess body weight increases pressure on the joints, especially the back, hips, knees and ankles; and that over time, weight can cause cartilage in these joints to wear down, and this may lead to severe pain and difficulty walking. The examiner concluded that the Veteran's back, knee, and hip disabilities are at least as likely as not aggravated beyond their natural progression by her PTSD. The Veteran was provided a VA examination in August 2021. This examination concluded the Veteran did not currently have a right knee disability, and no nexus opinion was provided. The examiner also disputed the August 2020 medical opinion, stating that the provider did not mention medical evidence to support aggravation of the condition, and that without the medical evidence it is not possible to give a positive opinion without resorting to speculation. In this case, there is unclear evidence as to whether the Veteran has a right knee disability or has a right knee pain for VA purposes consistent with Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). To this extent, the United States Court of Appeals (Court) has held that pain in the absence of a presently-diagnosed condition can cause functional impairment, which may qualify as a disability for VA purpose. Saunders, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Therefore, in light of Saunders, a remand is necessary to obtain an additional VA examination. The examiner is directed to report the Veteran's current symptomatology and to address whether the Veteran's reported right knee pain results in any functional impairment. Saunders, 886 F.3d at 1362. The matter is REMANDED for the following action: Schedule the Veteran for a knee examination, regarding her claim of service connection for a right knee disability. The examiner must review of the record and address the following: (a) Identify all disabilities relating to the Veteran's right knee since the date of the Veteran's claim of service connection. (b) If the Veteran's reported claimed right knee pain is not found to be a manifestation of any disability, please describe the functional impairment resulting from the Veteran's claimed right knee pain. In doing so, the examiner is requested, to the extent possible, to describe any and all effects of the Veteran's claimed right knee pain on her ability to stand, walk, run, and maintain balance. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. Ashley Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.