Citation Nr: 21074935 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-24 243 DATE: December 16, 2021 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to April 1971, with service in the Republic of Vietnam. In October 2018, the Board of Veterans' Appeals (Board) remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board's remand directives. As such, the case has returned to the Board for further appellate proceedings. However, as explained below, the Board finds that another remand is necessary in order to provide the Veteran with an adequate examination and/or opinion. A Board hearing was held in July 2021. A transcript is of record. The Veteran has put forth various theories of entitlement regarding his claim for entitlement to service connection for hypertension. He contends that his hypertension is due to conceded herbicide exposure while in service, that he had symptoms of hypertension while still in service, and that just after release from active service he was told by a doctor that he had high blood pressure when he applied for a job. See Board Hearing Tr. at 4-5. Further, he contends that his hypertension is secondary to his service-connected disabilities; specifically, the Veteran put forth secondary arguments regarding all of his service-connected disabilities during his Board hearing but for his service-connected left chest scar. The Veteran's secondary arguments also include obesity as an intermediate step between his various service-connected disabilities and his hypertension. See Board Hearing Tr. at 14-18. The Veteran was afforded a VA examination in March 2019 regarding the etiology of his hypertension. The examiner ultimately opined that the Veteran's hypertension was not due to his active serviceincluding his conceded herbicide exposure therein, that his hypertension did not begin in service, and was not secondary to his service-connected disabilities. See March 2019 VA examination report. However, in rendering his secondary service connection opinions, the examiner opined that the Veteran's hypertension was not "caused by or permanently aggravated by" his service-connected conditions. Id. (emphasis added). The term "permanently aggravated" was specifically used in the opinion regarding the Veteran's posttraumatic stress disorder (PTSD), however; given the use within the opinion even just once, the Board finds that this opinion is inadequate. The Board cannot be sure if this standard of permanent aggravation was what the examiner used to render all secondary opinions, or just that of PTSD. Pursuant to a decision of the Court of Appeals for Veterans Claims, "any incremental increase in disability and any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence" constitutes aggravation. Ward v. Wilkie, 31 Vet. App. 233 (2019). A showing of permanent aggravation or worsening of a non-service-connected disability is not required. Given that the March 2019 examiner used an improper definition of "aggravation" in his opinion, remand is warranted to adequately address the nature and etiology of the Veteran's hypertension. Further, there has yet to be an opinion rendered as to the Veteran's contentions regarding obesity as an intermediate step between his various service-connected disabilities and his hypertension. In January 2017, VA's Office of General Counsel (OGC) issued a precedential opinion, finding that although obesity cannot be service connected on a direct basis, obesity may serve as an intermediate step between a service-connected disability and a condition claimed on a secondary basis. VAOPGCPREC 1-2017; Walsh v. Wilkie, 32 Vet. App. 300, 305-07 (2020). OGC stated the analysis involves addressing the following questions: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether obesity, as a result of the service-connected disability, was a substantial factor in causing the claimed secondary disability; and (3) whether the claimed secondary disability would not have occurred but for obesity caused by the service-connected disability. Id. Recently, in Garner v. Tran, U.S. Vet. App. No. 18-5865 (Jan. 26, 2021) the Court held that to reasonably raise a theory of secondary service connection via obesity as an intermediate step, there must be 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. The Court provided the following non-exhaustive list of considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step: (1) mobility limitations or reduced physical activity as a result of a service-connected physical disability; (2) reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; (3) side effects of medication where the medication is prescribed for a service-connected disability; (4) treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; (5) lay statements by a Veteran attributing weight gain or obesity to the service-connected disability; and (6) statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability. The Court determined the critical commonality among the nonprecedential decisions was that "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." Based on the above cited evidence, the Board finds that standard has been met in this case. As such, the Board finds that the issue has been raised as to whether the Veteran's obesity was caused or aggravated by his service-connected diabetes and if so, whether his obesity in turn caused or aggravated his hypertension. Specifically, the Veteran contends that the steroids he has been prescribed for his lung condition caused him to become obese, which in turn caused or aggravated his hypertension. See Board Hearing Tr. at 14. He argues that his ischemic heart disease (IHD) essentially led to reduced exercise and physical activity which led to weight gain, which then led to his hypertension. Id at 16. He argues that his medication for his PTSD may have also contributed to his weight gain and therefore caused or aggravated his hypertension. Id at 17. He also stated that at one point in his treatment for his left ankle, he was also prescribed steroids which could have contributed to his obesity and in turn his hypertension. Id at 18. There is also an indication during the Veteran's Board hearing that his diabetes, or medication related to, may have also caused or aggravated his obesity, which in turn led to his hypertension. Id at 17. Notably, the March 2019 VA examiner stated that hypertension has many causes, specifically listing obesity as one of said causes. See March 2019 VA examination report. Thus, confirming one the Veteran's risk factors is indeed obesity, which he claims to have been caused or aggravated by his service-connected disabilities as outlined above. Therefore, remand is also required in order to obtain an opinion as to whether the Veteran's obesity could serve as an intermediate step between his service-connected disabilities and hypertension. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his hypertension that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After completing directive #1 above, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's hypertension. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. The opinions must include a notation that this record review took place. It is up to the discretion of the reviewing clinician whether a physical examination of the Veteran is needed to answer the questions below. The reviewing clinician should answer the following: (a.) Is it at least a likely as not that the Veteran's hypertension was incurred in or is otherwise related to active service, to include his conceded herbicide exposure therein? The clinician should specifically address the Veteran's statements that he had symptoms of hypertension while in service and that he was denied a job in 1971 (within a year of separation) because the entrance physical reflected high blood pressure. (b.) Is it at least as likely as not that the Veteran's HTN was proximately caused or aggravated by his service-connected disabilities (IHD, restrictive lung disease, PTSD, left ankle disability, and/or diabetes), including but not limited medication used to treat said disability? (c.) Is it at least as likely as not that the Veteran's obesity was proximately caused or aggravated by his service-connected disabilities (IHD, restrictive lung disease, PTSD, left ankle disability, and/or diabetes), including but not limited medication used to treat said disability? (d.) If so, is it at least as likely as not that the Veteran's HTN was proximately caused or aggravated by his obesity? The Board notes that any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non-service-connected disability is not required. In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing directives above to the extent possible, readjudicate the claim. If the benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.