Citation Nr: 21013757 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-61 535 DATE: March 10, 2021 ORDER Service connection for a disability manifested by vision problems, to include as secondary to service-connected disabilities, is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a gum disability, to include as secondary to service-connected disabilities, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current disability manifested by vision problems separate from his service-connected dry eyes. CONCLUSION OF LAW The criteria for service connection for a disability manifested by vision problems are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from February 1991 to August 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in March 2020 in Portland, Oregon; a transcript is of record. This matter was subsequently remanded by the Board in May 2020 for additional development. This matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as an addendum opinion regarding the eye was associated with the record. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Nexus opinions were obtained. Additionally, in an October 2020 rating decision, the RO granted the Veteran’s claim for service connection for dry eyes. As this grant represents a full grant of the benefit sought, this issue is no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 43, 448-49 (1995). The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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, 57-58 (1990). 1. Entitlement to service connection for a disability manifested by vision problems, to include as secondary to service-connected disabilities The Veteran contends that he has a disability manifested by vision problems that is separate from his now service-connected dry eyes disability. Service connection may not be granted in the absence of a current disability shown at some time during the claims period. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018) (holding that “disability” refers to functional impairment of earning capacity). In this matter, the evidence of record does not show a current disability manifested by vision problems. The Board acknowledges the Veteran’s belief that he has a vision disability due to his active service, to include as secondary to his service-connected disabilities. In this regard, the Veteran testified at the March 2020 Board hearing that he believes his vision problems are due to his medications he takes for his service-connected disabilities. His representative also asserted that he could have uveitis. The Veteran’s testimony largely focused on dry eyes as well as redness and watery eyes from his dry eyes. In this regard, the Board acknowledges the Veteran’s belief that he has an eye/vision disability that is secondary to his service-connected disabilities and medication, but he is not competent to provide a diagnosis as it requires specialized knowledge of ophthalmology. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such evidence is not competent, the Board does not find that it is relevant or probative of the vision matter on appeal. To gather competent medical evidence to assist the Board’s adjudication, it remanded for an opinion, which was obtained in September 2020. The examiner, an ophthalmologist, reviewed the Veteran’s records, including the 2014 eye examination, and reported that the Veteran did not have any vision problems separate from his dry eyes. In support, the examiner explained that the Veteran had corrected visual acuity of 20/20. Additionally, the examiner also reported that the Veteran does not have uveitis. The Board finds this opinion to have great probative value. The examiner is an eye specialist, she thoroughly reviewed the claims file, and explained that the Veteran had normal vision as shown by his reported 20/20 visual acuity. The Board gives the opinion great weight. As such, the competent and probative evidence does not tend to show that the Veteran has current disability manifesting in vision problems separate from his service-connected dry eyes during the period since the claim was filed or shortly proximate to the filing. The preponderance of the evidence weighs against a finding for service connection. 38 C.F.R. § 3.102. As such, service connection for a disability manifested by vision problems is not warranted. REASONS FOR REMAND 2. Entitlement to service connection for OSA, to include as secondary to service-connected disabilities, is remanded. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. The Veteran asserts service connection for OSA and hypertension to include as secondary to his service-connected disabilities and medication. VA’s General Counsel (GC) issued a precedential opinion on how the issue of obesity is to be assessed. One of the primary holdings of the opinion is that obesity is not a disability for purposes of VA benefits; hence, it cannot be the subject of service connection. VAOPGCPREC No. 1-2017 (Jan. 6, 2017); see also Marcelino v. Shulkin, 29 Vet. App. 155 (2018). The GC recognized further, however, that obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). As such, VA may service connect the current disability on a secondary basis under 38 C.F.R. § 3.310(a) to include aggravation of a non-service-connected disability. See Walsh v. Wilkie, 32 Vet. App. 300, 303-04 (2020) (explaining service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability). To determine whether obesity is an intermediate step between a service-connected disability and the development of a current disability that may be service connected on a secondary basis, the following criteria must all be satisfied: 1) the service-connected disability must have caused the Veteran to become obese; 2) the obesity, as a result of the service-connected disability must have been a substantial factor in causing the potential secondary disability; and 3) the potential secondary disability would not have occurred but for the obesity caused by the service-connected disability. The Veteran’s weight at enlistment was 233 pounds. His weight in January 2020 was 307 pounds. The Veteran’s medical records have shown that he has had a history of joint pain. The Veteran’s submitted medical article reports that obesity is common in individuals with psoriatic arthritis as they are in pain which likely prevents the individual from exercising. VA obtained opinions in October 2020. In this regard, the examiner provided negative nexus opinions for whether the Veteran’s OSA and hypertension were secondary to his service-connected disabilities and medication. She also found that the Veteran’s service-connected disabilities did not cause him to become obese as psoriatic arthritis is a skin condition that causes pain in the joints and does not cause weight gain itself as they are unrelated medical conditions. The examiner also reported that weight can be caused by factors to include lack of physical activity. However, the Board finds the opinions addressing obesity to be incomplete. The examiner did not fully address the Veteran’s joint pain due to his service-connected disabilities. His submitted medical evidence/articles indicates that such joint pain may prevent an individual from exercising. As such, the Board finds that an addendum opinion is warranted to fully address the Veteran’s obesity in relation to his claims for service connection. 4. Entitlement to service connection for a gum disability, to include as secondary to service-connected disabilities, is remanded. The January 2014 VA examiner reported the Veteran’s gum disability is due to his hypertension medication. As the Veteran’s claim for service connection for hypertension is being remanded for further development, the Board finds that these two claims are inextricably intertwined. Therefore, the claim for service connection for a disability of the gums must be deferred until the claim for service connection for hypertension can be adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All attempts to obtain any VA treatment records must be documented. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. All requests and responses for the private records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After completing #1, request an addendum or schedule the Veteran for an examination for his hypertension and OSA if necessary. The examiner is to respond to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension/OSA were caused by a disease or injury in service? (b.) If no to question (a), whether the obesity/weight gain as a result of the service-connected disabilities was a substantial factor in causing hypertension/OSA; (c.) Whether hypertension/OSA would not have occurred but for the obesity/weight gain caused by the service-connected disabilities. (d.) If no to the above questions (b)-(c), is it at least as likely as not (50 percent or greater probability) that his disabilities were either 1) proximately due to OR 2) aggravated by any service-connected disability. In arriving at the opinion on hypertension and OSA and weight gain/obesity, inform the examiner that all lay evidence must be considered, including any articles submitted by the Veteran and his statements. Inform the examiner further that, for VA purposes, obesity is not a disease or disability for which service connection may be granted, but it may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis. To determine whether any weight gain or obesity is an “intermediate step” between either any or all of the Veteran’s service-connected disabilities and hypertension, the examiner is to fully answer the above questions to assist the Board with adjudication of these matters. **In reaching an opinion on weight gain/obesity, the examiner must consider the Veteran’s joint pain from psoriatic arthritis and the effect it has on his ability to perform physical activity/exercise.** 3. After the development in #1 and #2 are completed, readjudicate the inextricably intertwined issue of entitlement to service connection for a gum disability manifested by swelling and bleeding. 4. Lastly, if the Veteran is now service connected for any of the remanded disabilities per the Veterans Benefits Administration (VBA), and any remanded disability is not found to be caused by a disease or injury in service, please address whether the disability: (a.) Is it at least as likely as not (50 percent or greater probability) that any disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. 5. Inform EACH of the above examiners that a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. (Continued on the next page)   If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Morales, 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.