Citation Nr: 22005752 Decision Date: 02/02/22 Archive Date: 02/02/22 DOCKET NO. 04-09 643 DATE: February 2, 2022 ORDER Entitlement to service connection for hypertension as secondary to service-connected disabilities is denied. FINDING OF FACT The evidence persuasively weighs against a finding that the Veteran's hypertension is caused or aggravated by the Veteran's service-connected disabilities. The evidence persuasively weighs against a finding that Veteran's service-connected disabilities caused the Veteran to become obese. The Veteran's obesity does not serve as an intermediate step between the service-connected disabilities and hypertension. CONCLUSION OF LAW The criteria for service connection for hypertension as secondary to service-connected disabilities have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1983 to February 1986, at which time, he received a discharge under honorable conditions. The Veteran reenlisted and served on active duty from February 1986 to November 1988. The Veteran received a discharge under other than honorable conditions for the latter period of service. In May 2006, the Veteran testified at a travel Board hearing before a Veterans Law Judge (VLJ). In February 2017, the Veteran was notified that the VLJ who held the May 2006 hearing was no longer employed by the Board and given the opportunity to request another hearing. The Board requested that if the Veteran wanted another hearing, he should respond within the next 30 days. It also told him that if he did not respond in the next 30 days, the Board would assume he did not want another hearing. The record does not contain a response or request for another hearing from the Veteran. The Veteran was given an opportunity to have another hearing and has not informed VA that he wants another hearing. Therefore, the Board finds the duty to assist has been met in this regard. In a January 2010 decision, the Board denied entitlement to service connection for hypertension as secondary to service-connected residuals of cold injuries to bilateral feet and residuals of bilateral ankle disabilities. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2011 Memorandum Decision, the Court vacated the Board's decision and remanded the claim back to the Board for additional development. In May 2012, the Board remanded the claim for a VA examination. In each of the Board decisions from May 2017, November 2019, December 2020, and May 2021, and the resultant VA opinions from August 2012, February 2013, November 2018, December 2019, and independent medical opinion from February 2021 were found to be inadequate. For the reasons discussed below, the Board currently finds that the November 2018 VA opinion is partially adequate and substantially complied with part of the May 2012, May 2017, and November 2019 remand directives, the February 2021 independent medical opinion substantially complied with the December 2020 Board remand directives and is adequate, and also finds that the August 2021 VA opinion is adequate and that there has been substantial compliance with the May 2021 Board remand directives. In a September 2016 statement, the Veteran contended that he is not a lay person because of his previous experience as a laboratory technician, and he is qualified to offer a medical opinion regarding the etiology of hypertension. The provisions of 38 C.F.R. § 3.159(a)(1) state that competent medical evidence is evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions. The Veteran has experience and training as a phlebotomist/laboratory technician, however this background does not qualify the Veteran to provide medical expertise regarding hypertension, as this field of work and its related education does not involve the study or treatment of hypertension. Accordingly, the Board finds that the Veteran is not qualified through education, training or experience to offer medical diagnoses, statements, or opinions regarding the etiology of hypertension. In a December 2021 statement, the Veteran contended that the August 2021 VA opinion was inadequate for failing to sufficiently discuss whether the Veteran's service-connected disabilities aggravated his hypertension. The Veteran contended that the examiner's opinion was internally inconsistent because he conceded that the Veteran's service-connected conditions would impact the Veteran's physical activities. The Veteran also contended that the examiner's discussion on caloric intake was conclusory and that the examiner's opinion did not rule out that the Veteran's service-connected disabilities aggravated hypertension. However, the Board finds that the August 2021 VA opinion is adequate. With regard to the discussion on aggravation, the examiner discussed the impact of the Veteran's service-connected disabilities, and specifically noted that the Veteran's diagnosis of essential hypertension precludes a finding that his disability is proximately due to or aggravated by the Veteran's service-connected disabilities. The examiner supported this finding with a well-reasoned rationale, and a discussion of medical principles involving both hypertension and obesity. The Board also finds that the examiner's opinion is not internally inconsistent, as, although the opinion discusses the potential impact of the service-connected disabilities on the Veteran's ability to exercise, he attributed the Veteran's obesity to excess caloric intake and not reduced physical activity. Finally, the examiner stated that the Veteran's diagnosis "specifically" refutes the premise that his disability is caused or aggravated by known specific factors other than cardiovascular changes. Accordingly, the Board finds that the August 2021 opinion rules out that that the Veteran's service-connected disabilities aggravated hypertension. In light of the foregoing, VA has fulfilled the duty to assist in providing the Veteran with an examination and medical opinions that are based upon a review of the evidence that contain rationales that are based on medical principles. SERVICE CONNECTION Service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. Id. 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(a) proximately caused by or(b) proximately aggravated by a service-connected disability. The Veteran asserts that hypertension is secondary to his obesity. While obesity cannot be service connected on a direct basis and obesity cannot qualify as an in-service event for service connection purposes, obesity may serve 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). VAOGCPREC 1-2017. In such case, that evidence would need to reflect: (1) a service-connected disability or disabilities that caused the veteran to become obese; (2) the obesity was a substantial factor in causing another disability; and (3) the disability would not have occurred but for the obesity caused by the veteran's service-connected disability or disabilities. Id. Entitlement to service connection for hypertension as secondary to service-connected disabilities At the May 2006 Board hearing, the Veteran testified that his hypertension is caused by obesity, which, in turn, is caused by the service-connected disabilities. The Veteran stated that his belief was that because of the service-connected cold weather injuries and his other service-connected disabilities, he was not able to properly exercise or do the treatment to control his high blood pressure. Accordingly, the Veteran contended that the service-connected disabilities are the contributing factor that caused his hypertension. The Veteran reiterated these contentions in statements from February 2012 and October 2012. The Veteran is service connected for a right foot cold injury, left foot cold injury, right ankle injury, left ankle injury, right knee sprain, left knee sprain, right ankle strain, left ankle strain, postoperative scar left knee associated with left knee sprain, and postoperative scar right knee associated with right knee sprain. For background purposes, in the May 2007 VA examination report, the examiner opined that the Veteran's hypertension is not proximately due to the service-connected residuals of cold injury to both feet and/or the service-connected bilateral ankle injury. The examiner opined that the Veteran's service-connected disabilities are not contributing factors in the development of the Veteran's essential hypertension. The examiner also opined that it is not as least as likely as not that the Veteran's contention that his inactivity and weight gain had any contributing factors to the development of hypertension. The examiner generally opined that the Veteran's hypertension is the result of his family history of hypertension. In the January 2010 decision, the Board relied on this opinion in denying service connection for hypertension. In the August 2011 Memorandum Decision, the Court found that the May 2007 VA examination was inadequate and vacated the decision. In May 2012, the Board remanded the claim to afford the Veteran a new VA examination. The May 2012 Board remand also directed the examiner to address the statements of the Veteran, who it wrote had a medical background and is currently working as a phlebotomist/lab technician, that his service-connected disabilities (cold injury residuals of the bilateral feet and bilateral ankle disabilities) prevent him from exercising, which in turn has led to weight gain and the development of hypertension. In an August 2012 VA examination, the examiner opined that the Veteran's hypertension is not proximately due to the service-connected disabilities. The examiner opined that the Veteran's essential hypertension is a genetically mediated condition. The examiner documented that a review of medical literature reveals that essential hypertension is highly heritable and polygenic. Finally, the examiner noted that the Veteran stated his mother also has essential hypertension. In an October 2012 statement, the Veteran contended that the August 2012 VA examination was inadequate because the rationale provided was insufficient, and was repetitive of the July 2007 VA examination, which was already found to be inadequate. The RO subsequently requested a new VA opinion. In the February 2013 VA opinion, the VA examiner reviewed the Veteran's contentions and the submitted articles. The examiner opined that the Veteran's contentions and submitted articles were "moot and irrelevant" as to the etiology of the Veteran's hypertension. That determination was based on the findings that the radiographic evidence of the Veteran's feet and ankles were all essentially normal for his age, except for the left ankle minimal lateral malleolus avulsion fracture, and that his August 2012 VA examination showed a normal gait. Based on a review of medical literature and the Veteran's family history, the February 2013 VA examiner opined that it was more likely than not that the Veteran's essential hypertension was a "genetically mediated" condition. Furthermore, the February 2013 VA examiner opined that the Veteran's hypertension was less likely than not due to cold injury residuals of the bilateral feet and bilateral ankle disabilities which, according to the Veteran, prevented him from exercising and, in turn, led to weight gain. The examiner's underlying rationale was again that the clinical evidence showed essentially normal feet and ankles and a normal gait. In a May 2013 statement, the Veteran contended that the February 2013 VA addendum opinion was inadequate for failure to consider the Veteran's reported symptoms, for failure to discuss the articles provided by the Veteran, and for inadequately discussing whether the Veteran's hypertension was aggravated by his service-connected disabilities. In a December 2013 statement, the Veteran once again contended that the February 2013 VA addendum opinion was inadequate, providing similar reasons to the May 2013 statement. In a May 2017 Board remand, it found that the August 2012 VA examination and February 2013 VA opinion were inadequate due to an insufficient rationale regarding the opinion that the Veteran's hypertension was a genetically mediated condition, for failing to specifically discuss each article submitted by the Veteran, for failing to consider the Veteran's statements related to his employment background and inability to exercise, and for failing to discuss whether the Veteran's hypertension was aggravated by the service-connected disabilities. The May 2017 Board remand once again directed the examiner to address the statements of the Veteran, who has a medical background and is currently working as a phlebotomist/lab technician, that his service-connected disabilities (cold injury residuals of the bilateral feet and bilateral ankle disabilities) prevent him from exercising, which in turn has led to weight gain and the development of hypertension. In a November 2018 VA opinion, the examiner opined that the Veteran's service-connected disabilities are not medically related. The examiner stated hypertension can be controlled by exercise but also by diet that can control the Veteran's weight gain. The examiner reviewed the medical literature provided by the Veteran and concluded that the medical literature does not support a medical relationship. The examiner also reported that the Veteran has a medical background and is currently working as a phlebotomist/lab technician supervisor during nightshift five days a week and is able to maintain and perform his assigned duties without complaints of his service-connected disabilities of cold injury residuals of the bilateral feet and bilateral ankle disabilities. The examiner reported that the Veteran states he is unable to exercise due to lack of motivation, but he will retire in a little over one year and plans to send his time in the gym as he voiced it was a hobby he enjoys. The examiner stated that hypertension can be controlled by exercise, but also noted that dietary intake can control weight gain. In a November 2019 remand, the Board found the November 2018 VA opinion was inadequate in that the examiner failed to specifically discuss the Veteran's contention that he gained weight as a result of the service-connected disabilities, which, in turn, resulted in his developing hypertension. Further, the Board noted that VA treatment records revealed persistent complaints pain, swelling, and numbness associated with the service-connected disabilities, which symptoms were not discussed. The November 2019 Board remand once again directed the examiner to address the statements of the Veteran, who has a medical background and is currently working as a phlebotomist/lab technician, that his service-connected disabilities (cold injury residuals of the bilateral feet and bilateral ankle disabilities) prevent him from exercising, which in turn has led to weight gain and the development of hypertension. VA opinions were obtained in December 2019. For the Veteran's service-connected scars of the left and right knees, the examiner opined the Veteran's superficial scars did not cause his hypertension. The examiner concluded that although multiple risk factors cause hypertension, hypertension and scars are unrelated. In other opinions, the December 2019 VA examiner stated there is no medical relationship between the Veteran's service-connected left or right foot cold injuries, residuals of ankle injuries, residuals of knee injuries, and hypertension. The December 2019 VA examiner based his opinion regarding the Veteran's weight on poor diet, genetics, and a lack of physical exertion. The examiner further reported that although obesity can lead to hypertension, risk factors also include familial history, race, obesity, being physically inactive, an increased salt intake, alcohol, and stress. In December 2020, the Board found that each of the December 2019 VA opinions were inadequate. The Board found that the provided rationales were inadequate, as the examiner provided an insufficient and contradictory rationale of how the mentioned risk factors apply to the Veteran; the examiner did not address relevant articles provided by the Veteran; and the examiner did not discuss VA treatment records showing persistent complaints of pain, swelling, and numbness associated with the service-connected disabilities and how these symptoms could affect his overall activity levels. In light of this finding, the Board remanded directed that an independent medical opinion be obtained. In a February 2021 independent medical opinion, the examiner reviewed each of the articles submitted by the Veteran. The examiner opined that the submitted articles do not represent peer reviewed, credible medical evidence, and thus do not constitute valid evidence in support of a finding that the Veteran's hypertension is proximately due to or aggravated by the service-connected disabilities. The examiner noted each of the Veteran's service-connected disabilities and discussed their current levels of severity. The examiner opined that with consideration of the reported symptoms and mild severity of each of those disabilities, the service-connected disabilities would not result in the Veteran's obesity. The examiner stated that although orthopedic conditions may cause pain with weight bearing and high impact activity, there are numerous other strategies, such as low impact exercise and limited calorie intake, that can prevent obesity. The examiner wrote that the Veteran's service-connected conditions do not preclude all forms of exercise. The examiner also discussed the etiology of the Veteran's obesity. He stated that obesity is most commonly caused by a combination of excessive food intake and lack of physical activity, which is a voluntary choice. As the Veteran's obesity is not a result of the Veteran's service-connected conditions, the examiner opined that the Veteran's hypertension was not aggravated by obesity caused by the service-connected disabilities. The examiner reported that while obesity can result in aggravation of hypertension, the Veteran's obesity cannot be attributed to the service-connected disabilities. The examiner also concluded that the Veteran's service-connected disabilities did not result in aggravation, beyond the natural progression, of the Veteran's hypertension. The Veteran has an established diagnosis of essential hypertension. The examiner stated that essential hypertension is the result of genetic and environmental factors including age, family history, race, sodium intake, alcohol consumption and obesity. The examiner concluded that the Veteran's hypertension is at least as likely as not the result of risk factors independent of obesity. In support of the opinion, the examiner provided references to several clinical studies regarding hypertension. The Board notes that the examiner submitted multiple copies of same opinion with minor phrasing and grammatical differences, however they all essentially represented the same opinion. The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the award of service connection for hypertension on a secondary basis. The reasons follow. The Veteran has been diagnosed with hypertension, and thus there is evidence of a current disability. For example, in the August 2012 VA examination it was documented that the Veteran was first diagnosed with hypertension in 1992. Thus, the facts establish that the first element of a secondary service-connection claim is met. However, the evidence persuasively weighs against a finding that the Veteran's hypertension is caused or aggravated by the service-connected disabilities. As discussed above, in the May 2012, May 2017, and November 2019 Board remand directives, the examiner was directed to address the statements of the Veteran, who has a medical background and is currently working as a phlebotomist/lab technician, that his service-connected disabilities (cold injury residuals of the bilateral feet and bilateral ankle disabilities) prevent him from exercising, which in turn has led to weight gain and the development of hypertension. The Board now finds that the November 2018 VA opinion is partially adequate with regard to the discussion of the Veteran's statement that his inability to exercise has resulted in weight gain, with consideration of the Veteran's employment background. The November 2018 VA opinion specifically discussed the Veteran's contention that his work precluded his ability to exercise, which caused the Veteran to become obese, by noting that the Veteran's service-connected disabilities do not impact the Veteran's ability to work the nightshift full time, and that diet can control weight gain. As this opinion specifically addresses the Veteran's contentions, notes his work history, and discusses the medical cause of the Veteran's obesity, the Board affords it probative value. This opinion establishes that the Veteran's service-connected disabilities did not cause the Veteran to become obese, and establishes that the Veteran's hypertension is not due to his service-connected disabilities. The Board now finds that the November 2018 VA opinion is in substantial compliance with the May 2012, May 2017, and November 2019 Board remand instructions. In the May 2021 Board remand, it was found that the February 2021 independent medical opinion was partially inadequate because the examiner failed to discuss whether the Veteran's service-connected disabilities aggravated his hypertension and directed that a new VA opinion be obtained. However, the current Board finds that the February 2021 independent medical opinion is adequate, as the examiner, in fact, opined that that the Veteran's service-connected disabilities did not result in aggravation of the Veteran's hypertension. In other words, the finding by the Board in the May 2021 remand that the examiner did not address aggravation was inaccurate, as the examiner specifically addressed the aggravation question. Specifically, the examiner wrote that while orthopedic conditions may cause pain with weight bearing and high impact activity, there are numerous other strategies, such as low impact exercise and limited calorie intake, that can prevent obesity. The examiner wrote the Veteran's service-connected conditions of bilateral foot cold injury residuals, bilateral ankle strain and bilateral knee strain do not preclude all forms of exercise. The examiner explained that paraplegics exercise and maintain appropriate BMI. The examiner wrote obesity is most commonly caused by a combination of excessive food intake and lack of physical activity, which is a choice. The examiner wrote that as the obesity is not a result of the service-connected conditions, it cannot be said that the Veteran's non-service connected hypertension was aggravated, beyond the natural progression, by obesity caused by the service-connected conditions. The examiner noted that while obesity can result in aggravation of hypertension, the Veteran's obesity cannot be attributed to the service-connected bilateral foot cold injury residuals, bilateral ankle strain or the bilateral knee strain and so, it cannot be said that the service-connected conditions resulted in aggravation, beyond the natural progression of the Veteran's hypertension. Thus, the examiner provided an opinion addressing aggravation, which was based on a review of the Veteran's service-connected disabilities, medical literature, reported symptoms, and the Veteran's contentions. With regard to the February 2021 independent medical opinion, as the examiner discussed the validity of the Veteran's submitted articles, analyzed factors that contributed to the Veteran's hypertension, reviewed the Veteran's contentions, noted the role of obesity in the development of hypertension, discussed the etiology of the Veteran's obesity, and referenced medical literature, the Board affords this opinion probative value. This opinion establishes that the Veteran's hypertension is not caused or aggravated by the service-connected disabilities, and also establishes that the Veteran's service-connected disabilities did not cause the Veteran to become obese. In an August 2021 VA opinion, the examiner opined that that the Veteran's service-connected disabilities, to include right foot cold injury, left foot cold injury, right ankle injury, left ankle injury, right knee sprain, left knee sprain, right ankle strain, left ankle strain, or scars of the knees did not aggravate the Veteran's obesity, to include as due to pain and functional impairment. The examiner explained that obesity is caused by dietary indiscretion and excess caloric intake, and that caloric intake is adjustable and should reflect activity levels. The examiner noted that overeating and consumption of high caloric beverages and alcohol are the typical causes of obesity. The examiner also explained that obesity and weight gain are conditions with entirely individual patterns of progression that are extremely variable. The August 2021 VA examiner explained that given that caloric intake is within the control of the Veteran; and given that caloric intake determines the level of weight gain or loss; and given that occurrence of hypertension is determined by a number of variables and risk factors, to include, but not limited to age, heredity, racial statistical differences, gender, tobacco and alcohol use, it is most reasonable to conclude that the occurrence and progression of hypertension is independent of the Veteran's service-connected disabilities. The examiner also reported that the diagnosis conforms to the description of essential hypertension, which specifically refutes the premise that the disorder is caused or aggravated by known specific factors, other than primary cardiovascular changes. The Veteran is not service connected for a cardiovascular disability. As the August 2021 VA opinion is based upon a review of the Veteran's service-connected disabilities, medical knowledge regarding obesity, and an explanation of how the Veteran's specific diagnosis precludes other etiologies, the Board affords it probative value. This opinion establishes that the Veteran's hypertension is not aggravated by the service-connected disabilities. In summary, the November 2018 VA opinion, the February 2021 independent medical opinion and the August 2021 VA opinion establish that the Veteran's hypertension is not caused or aggravated by the service-connected disabilities. These opinions also establish that the Veteran's service-connected disabilities did not cause the Veteran to become obese. Accordingly, the Board finds that the Veteran's obesity does not serve as an intermediate step between a service-connected disability or disabilities and his current hypertension. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for hypertension as secondary to service-connected disabilities is warranted. Rather, the evidence persuasively weighs against the service-connection claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Husain, 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.