Citation Nr: 21074461 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-26 331 DATE: December 15, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a respiratory disability is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as secondary to herbicide exposure, is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as secondary to herbicide exposure, is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to herbicide exposure, is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as secondary to herbicide exposure, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1965 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2017 and April 2017 rating decisions. A July 2019 Board decision denied the Veteran's claim for service connection for hypertension and remanded the issues of service connection for respiratory disability, left and right upper extremity peripheral neuropathy, left and right lower extremity peripheral neuropathy, and entitlement to a TDIU. The Veteran appealed the Board's denial of his service connection for hypertension claim to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the July 2019 Board decision as to this issue. In September 2020 and June 2021, the Board remanded for further development. 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for a respiratory disability is remanded. 3. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as secondary to herbicide exposure, is remanded. 4. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as secondary to herbicide exposure, is remanded. 5. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to herbicide exposure, is remanded. 6. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as secondary to herbicide exposure, is remanded. 7. Entitlement to a TDIU is remanded. The Veteran seeks service connection for hypertension, respiratory disability, and bilateral upper and lower extremity neuropathy. He asserts that his disabilities are related to his service-connected psychiatric disability, to include the assertion that his psychiatric disability caused or aggravated obesity which led to his other disabilities. In June 2021, the Board remanded to obtain VA medical opinion regarding whether the Veteran's hypertension, respiratory, and neuropathy disabilities were secondary to his service-connected psychiatric disability, to include through an obesity link. In August 2021, a VA examiner opined that the Veteran's hypertension is less likely than not due to or aggravated by his service-connected psychiatric disability. The examiner explained that an anxiety state can cause a temporary elevation in blood pressure but that mental health conditions are not risk factors to cause or permanently aggravate hypertension beyond its natural course. However, secondary service connection is available for any incremental increase in disability in non-service-connected disabilities resulting from service-connected disabilities regardless of its permanence. See Ward v. Wilkie, 31 Vet. App. 233, 240-41 (2019). The examiner did not address the Veteran's hypertension was aggravated at any time over the course of this appeal by the service-connected psychiatric disability that may have not been medically treated at the time, as instructed in the June 2021 Board remand. In addition, the examiner listed risk factors for hypertension but did not explain how these risk factors applied in the Veteran's specific circumstances or otherwise provide an adequate rationale for the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The examiner noted that obesity and physical inactivity are risk factors for hypertension but did not address the Veteran's assertion that his service-connected psychiatric disability impacted his motivation to exercise and caused weight gain or the medical treatise submitted by the Veteran suggesting a relationship between PTSD and the development of obesity. That is, although obesity itself cannot be considered a disability under the rating schedule, it may qualify as an "intermediate step between a service-connected disability and a current disability under a secondary basis under 38 C.F.R. § 3.310. Id.; see also Walsh v. Wilkie, 32 Vet. App. 300 (2020). See also VA Off. Gen. Counsel Prec. Op. 1-2017 at 2-3. In particular, service connection may be warranted 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). The August 2021 VA examiner also opined that the Veteran's respiratory disability is less likely than not due to or aggravated by his service-connected psychiatric disability. The examiner listed the most important risk factor for respiratory disability but did not explain how the risk factor applied in the Veteran's specific circumstances or otherwise provide an adequate rationale for the opinion. See Nieves-Rodriguez, 22 Vet. App. at 301. The examiner also explained that medical literature and review of the medical record does not support a mechanism for psychiatric disability to cause or permanently aggravate respiratory disability beyond its natural progression. However, as noted above, secondary service connection is available for any incremental increase in disability in non-service-connected disabilities resulting from service-connected disabilities regardless of its permanence. See Ward, 31 Vet. App. at 240-41. The examiner stated that mental health conditions do not preclude all forms of exercise and that obesity is caused by excess food intake and lack of physical activity but did not address the Veteran's reports that his psychiatric disability impacted his motivation to exercise and therefore caused weight gain nor the medical treatise submitted by the Veteran suggesting a relationship between PTSD and the development of obesity, as required by the June 2021 Board remand. The examiner also did not address the treatise submitted by the Veteran suggesting obesity may raise the risk of chronic obstructive pulmonary disease, as required by the June 2021 Board remand. The August 2021 VA examiner also opined that the Veteran's bilateral upper and lower extremity neuropathy disability is less likely than not due to or aggravated by his service-connected psychiatric disability. The examiner listed the most common causes of peripheral neuropathy but did not explain how these factors applied in the Veteran's specific circumstances or otherwise provide an adequate rationale for the opinion. See Nieves-Rodriguez, 22 Vet. App. at 301. The examiner also explained that medical literature and review of the medical record does not support a mechanism for psychiatric disability to cause or permanently aggravate peripheral neuropathy beyond its natural progression. The examiner also opined that medical literature and review of the medical record does not support a mechanism for psychiatric disability to cause or permanently aggravate obesity beyond its natural progression. However, as noted above, secondary service connection is available for any incremental increase in disability in non-service-connected disabilities resulting from service-connected disabilities regardless of its permanence. See Ward, 31 Vet. App. at 240-41. The examiner stated that mental health conditions do not preclude all forms of exercise and that obesity is caused by excess food intake and lack of physical activity but did not address the Veteran's reports that his psychiatric disability impacted his motivation to exercise and therefore caused weight gain nor the medical treatise submitted by the Veteran suggesting a relationship between PTSD and the development of obesity, as required by the June 2021 Board remand. The examiner also did not address the treatise submitted by the Veteran suggesting a relationship between neuropathic pain and obesity, as required by the June 2021 Board remand. In light of the above, remand is warranted to obtain additional VA medical opinion regarding whether the Veteran's hypertension, respiratory, and neuropathy disabilities are secondary to his service-connected psychiatric disability, to include through an obesity link. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran's attorney requests new opinions from a new examiner. The Regional Office should attempt to obtain the additional VA opinions from a new examiner to the extent possible. The Veteran has also asserted that his hypertension is related to his presumed in-service herbicide agent exposure in Vietnam. A December 2020 examiner opined that the Veteran's hypertension was less likely than not related to service. However, the examiner merely noted that hypertension is not a presumed effect from herbicide agent exposure without adequately addressing whether the Veteran's hypertension was related to his in-service exposure in light of his specific circumstances. See Polovick v. Shinseki, 23 Vet. App. 48 (2009); Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The National Academy of Sciences (NAS) has placed hypertension in a "sufficient evidence" category as of the 2018 Update. That is, although hypertension has not been added to the list of diseases presumptively associated with exposure to herbicide agents, the NAS has recognized "sufficient evidence" of an association between the two such that a correlation cannot be ruled out with reasonable confidence. The Federal Circuit has recently found that this NAS 2018 Update is in the constructive possession of the VA and, therefore, must be considered in the adjudication of appeals where it may be implicated. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2020). Accordingly, remand is also appropriate to obtain additional VA medical opinion regarding whether the Veteran's hypertension is related to his in-service herbicide agent exposure. The Veteran's claim for a TDIU is intertwined with his claims (as it is based partly on his respiratory disability) and will also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). While this matter is on remand, outstanding VA treatment records should be obtained, including VA treatment records from August 2021 to the present. The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records, to include VA treatment records from August 2021 to the present. 2. After outstanding records are obtained to the extent possible, ask the appropriate examiner (an examiner other than the August 2021 examiner) to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. - The examiner should opine whether it is at least as likely as not that the Veteran's hypertension is related to service, to include as due to herbicide agent exposure during service in Vietnam. In providing this opinion, the examiner is reminded that the fact that hypertension is not on the presumptive list of conditions due to herbicide agent exposure cannot, by itself, be the sole basis for a negative nexus opinion. Rather, the examiner should consider the Veteran's specific military history, medical history, risk factors, and any other circumstances deemed relevant by the examiner in rendering an opinion. The examiner should consider "Update 2018" from the National Academy of Sciences that indicates "sufficient evidence" of an association between hypertension and herbicide agent exposure in rendering an opinion. See NAS 2018 Update. - The examiner should opine whether it is at least as likely as not that the Veteran's hypertension is caused by or aggravated by the Veteran's service-connected psychiatric disability. In doing so, the examiner must opine whether the Veteran's hypertension was aggravated at any time over the course of this appeal by the service-connected PTSD that may have not been medically treated at the time. - The examiner should also opine regarding whether it is at least as likely as not that the Veteran's service-connected psychiatric disability caused or aggravated the Veteran's obesity; and if so, whether that resulting obesity is a substantial factor in causing the Veteran's current hypertension, respiratory disability, and/or bilateral upper and lower extremity neuropathy disability and whether the Veteran's hypertension, respiratory disability, and/or bilateral upper and lower extremity neuropathy would not have occurred but for the obesity caused or aggravated by the Veteran's service-connected psychiatric disability. In rendering this opinion, the examiner must address the medical treatise submitted by the Veteran suggesting a relationship between PTSD and the development of obesity. The examiner must also specifically address the Veteran's reports that his psychiatric disability reduces his motivation and willpower and interest in physical work or exercise and can lead to unhealthy eating. The examiner must address the medical treatise submitted by the Veteran suggesting obesity may raise the risk of chronic obstructive pulmonary disease, the medical treatise submitted by the Veteran suggesting a relationship between neuropathic pain and obesity, and the August 2021 VA examiner's notation that obesity and physical inactivity are risk factors for hypertension. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. 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 explain the reasons behind any opinions expressed. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Purcell, Amy 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.