Citation Nr: 21020962 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-22 462 DATE: April 8, 2021 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1986 to August 1995, including service in the Persian Gulf from April 1993 to July 1993. The Veteran presented sworn testimony at a hearing before the undersigned in March 2018. In February 2019, the Board remanded this issue for additional development. In November 2019, the Board denied the issue of entitlement to service connection for hypertension. In the December 2020 partial joint motion for remand, the parties determined that the Board, in making its decision, erred by not providing an adequate statement of reasons or bases for its determination. Specifically, the Board denied the Veteran’s claim because the medical evidence did not suggest that the Veteran’s hypertension is related to his period of service or the result of a service-connected condition. However, the Veteran, through his attorney, proffered that the limitation caused by his service-connected disabilities caused or contributed to his weight gain. VA has determined that obesity may be an intermediate step between a service-connected on a secondary basis under 38 C.F.R. § 3.310(a). Thus, the Board must remand this matter for compliance with the Court’s December 2020 order granting the parties’ partial joint motion to remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the [JMR] or explain why the terms will not be fulfilled.). Entitlement to service connection for Hypertension. The Veteran asserts that he developed hypertension due to his service-connected disabilities. See May 2018 VA Form 21-4138, Statement in Support of Claim. The Veteran has a current diagnosis of hypertension. See September 2018 Hypertension C&P examination. The parties agreed that the September 2018 and June 2019 VA examiner’s opinion does not adequately address secondary service connection. Specifically, the VA examiner did not address whether the limitations due to the Veteran’s service-connected disabilities caused or contributed to his weight gain and whether that obesity “may be an ‘intermediate step’ between his service-connected disability and his current condition, hypertension. Thus, on remand a new VA examination and nexus opinion must be obtained and thus this issue must be remanded.. As the parties noted in the JMPR, VA recognizes 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). See VAOPGCPREC-1-2017. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that obesity may be an “intermediate step” in a causal chain for service connection, which can be established on either a causal or aggravation basis. Walsh v. Wilkie, 32 Vet. App. 300 (2020). Additionally, pursuant to Garner v. Tran, Vet. App., No. 18-5865, 2021 U.S. App. Vet. Claims LEXIS 81, 2021 WL 266547 (Jan. 26, 2021), the current medical opinions are not adequate for purposes of determining whether secondary service connection is warranted for the Veteran’s hypertension. In Garner v. Train, the Court set forth a 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 explained 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.” The matters are REMANDED for the following action: Afford the Veteran a VA examination to determine the nature, onset and etiology of his currently hypertension. The Board notes, the Veteran has a current diagnosis of hypertension. The examiner must opine as to whether it is at least as likely as not that the Veteran’s hypertension was caused or aggravated by his service-connected disabilities. In offering this opinion, the examiner must acknowledge and discuss the lay statements of record. The examiner must also address the non-exhaustive list of considerations provided by the Court under Garner v. Tran whether they may give rise to a reasonable theory of secondary service connection with obesity as an intermediate step. Specifically, the examiner should discuss (1) mobility limitations or reduced physical activity as a result of a service-connected physical disability; (3) side effects of medication where the medication is prescribed for a service-connected disability; and (5) lay statements by a veteran attributing weight gain or obesity to the service-connected disability. The examiner should provide a complete rationale or explanation for all opinions reached. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jacquelynn M. Jordan, 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.