Citation Nr: 21040704 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-11 278 DATE: July 6, 2021 ORDER Entitlement to service connection for weight gain/obesity is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for chronic heart failure is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a scar on the upper left side of chest is remanded. Entitlement to an initial rating in excess of 10 percent for a right ankle disability is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to a rating in excess of 30 percent for COPD is remanded. Entitlement to a total disability individual unemployability (TDIU) rating is remanded. FINDING OF FACT Weight gain/obesity is not a disability for VA compensation purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for weight gain/obesity have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303; VAOPGCPREC 1-2017. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1973 to May 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions. The Veteran participated in a hearing before the undersigned in September 2020, and a transcript has been associated with the record. 1. Entitlement to service connection for obesity/weight gained. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (a). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. Although obesity may act as an intermediate step between a service-connected disability and a current disability for which secondary service connection may be established, VA's Office of General Counsel (OGC) has held that obesity is not considered a disease or injury under VA's laws and regulations and may not be service connected on a direct or secondary basis. VAOPGCPREC 1-2017. The Board is bound by the General Counsel's opinion as Chief Legal Officer of the Department. 38 U.S.C. § 7104 (c). The Veteran, through his attorney, acknowledged such at his personal hearing. Consequently, the Veteran's claim of service connection for obesity must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). (REMAND NEXT PAGE) REASONS FOR REMAND 2. Entitlement to service connection for sleep apnea secondary to obesity. 3. Entitlement to service connection for chronic heart failure. 4. Entitlement to service connection for hypertension secondary to obesity. 5. Entitlement to service connection for a scar on the upper left side of chest. The Veteran asserts that his service-connected COPD and ankle disabilities, and/or the medications used to treat the conditions caused him to become obese. In turn, he asserts that this obesity either caused or aggravated his sleep apnea, chronic heart failure, and/or hypertension. Of record, is a September 2018 VA examination opinion wherein an examiner appears to opine that the Veteran's ankle and COPD disabilities at least, in part, caused his obesity. However, the record is negative for an opinion addressing whether said obesity caused or aggravated his claimed disabilities for service connection. The Board finds that one is warranted. Per the Court in Walsh v. Wilkie, the Board needs to consider the obesity-intermediate step theorem predicated on aggravation where appropriate. 32 Vet. App. 300 (2020). Such consideration is appropriate as, per March 2017 VA examinations, the Veteran's COPD and ankle conditions are associated with decrease mobility/activity and the Veteran has raised the issue. See Garner v. Tran, No. 18-5865, 2021 U.S. App. Vet. Claims LEXIS 81 (Vet. App. Jan. 26, 2021). As Walsh is applicable an examiner must consider both proximate causation and aggravation by indicating: (1) whether the service-connected disability (caused the veteran to become obese/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. Such is required as answering these questions in the affirmative allows for a current disability to be service connected on a secondary basis. Walsh, 32 Vet. App. 300 (2020). The lack of this opinion requires remand pursuant to the provisions of Walsh. In addition, a remand is warranted for the Veteran's claimed chest scar. The Veteran asserts that his chest scar is due to his heart condition. This claim is inextricably intertwined with the outcome of his claim for heart condition. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. 6. Entitlement to an initial rating in excess of 10 percent for a right ankle disability. 7. Entitlement to an initial compensable rating for bilateral hearing loss. 8. Entitlement to a rating in excess of 30 percent for COPD. 9. Entitlement to a TDIU rating. The Veteran testified to worsening in his disabilities since his most recent VA examinations in March 2017. He reported decreased mobility associated with his ankle, being prescribed new hearing aids associated with worsening hearing, and being hospitalized for his COPD. The claims file is negative for contemporaneous treatment records dated after September 2018 and/or examination reports which attest to the severity of the Veteran's conditions since March 2017 VA examination. As such, new VA examinations are warranted. The claims file also reflects there are outstanding relevant records. On Board hearing, the Veteran reported receiving VA and private treatment, to include hospitalization, since 2018. This evidence is not of record and needs to be requested and associated with the claims file. Furthermore, on Board hearing, the Veteran reported obtaining Social Security Administration (SSA) disability benefits in part because of his service-connected COPD. These records are not in evidence. There is also no indication that these records have been requested. On remand, the RO must attempt to associate these records with the claims file. Finally, the Veteran has raised the issue of entitlement to a TDIU on Board hearing. Rice v. Shinseki, 22 Vet. App. 447 (2009). He asserts that the combined severity of his disabilities has rendered him unemployable. The Veteran's claim for TDIU is inextricably intertwined with the claims for increase rating. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Judgement must be deferred. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and private treatment medical records. Note, on Board hearing the Veteran reported being recently hospitalized at Catholic Medical Center and being treated by private physician Dr. S. B., these complete records are not in evidence. 2. Obtain the Veteran's federal records pertinent to his SSA disability claim. Document all requests for information as well as all responses in the claims file. 3. Request VA examinations as to the nature and etiology of the Veteran's claimed hypertension, congestive heart failure, and/or sleep apnea. The VA examiner should furnish an opinion with respect to the following questions: (a.) whether the Veteran's obesity or aggravation of obesity was a substantial factor in causing the current hypertension, congestive heart failure, and/or sleep apnea? (b.) whether the Veteran's hypertension, congestive heart failure, and/or sleep apnea disabilities would not have occurred but for obesity caused or obesity aggravated by the service-connected diabetes disability? (c.) The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. The examiner must address the Veteran's lay assertions on Board hearing. 4. Schedule the Veteran for an examination to determine the current severity of his service-connected right ankle disability. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (a.) In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. (b.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. (c.) If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms. Audiological testing must be performed, to include speech recognition scores using the Maryland CNC test. 6. Obtain a new VA examination from an appropriately qualified clinician addressing the severity of the Veteran's chronic obstructive pulmonary disease (COPD). The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. (a.) The examiner must report all signs and symptoms necessary to evaluate the Veteran's COPD under the appropriate rating criteria. The examiner should also discuss the impact of the service-connected COPD upon the Veteran's ability to work. (b.) The examiner is reminded to consider the Veteran's lay statements, including statements of chronicity and continuity of symptomatology. (c.) The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertions. (d.) A clear and detailed rationale for any opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. 7. Provide the Veteran with VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability, and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits) and ask him to complete those forms accurately updated to the present and submit them. He should also be advised that the information therein is critical to proper adjudication of his TDIU claim. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, 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.