Citation Nr: 22012545 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 16-06 439 DATE: March 4, 2022 REMANDED The claim of entitlement to service connection for a neck disability, to include as due to pain, and to include as secondary to a service-connected disability, is remanded. The claim of entitlement to service connection for a back disability, to include as due to pain, and to include as secondary to a service-connected disability, is remanded. The claim of entitlement to service connection for arthritis (also claimed as painful joints), to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the United States Navy from October 1987 to October 1990. These matters come before the Board of Veterans' Appeals (Board) from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In his timely filed February 2016 appeal to the Board, the Veteran declined an optional Board hearing for his claim for entitlement to service connection for a neck condition claimed as neck pain. See February 2016 Form 9. The Veteran subsequently requested a Board hearing in April 2016. See April 2016 Hearing Request. However, he withdrew his request in June 2016. See June 2016 Hearing Request. The Veteran declined Board hearings in his July 2016 and September 2016 appeals to the Board filed in connection with his claims for entitlement to service connection for arthritis (also claimed as joint pain) and entitlement to service connection for back pain. See July 2016 Form 9, September 2016 Form 9. No subsequent hearing requests have been received. In August 2019, the Board remanded these matters to the RO for additional development, including to provide the Veteran with VA medical examinations of his claimed conditions. Although regrettable, the Board concludes that the VA examination opinions failed to address a reasonably raised theory that the Veteran's disabilities may be secondarily related to his service-connected psychiatric condition. See August 2013 Statement in Support of Claim; November 2018 and February 2020 VA opinions. As such, remand is required to obtain substantial compliance with the Board's prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). 1. The claim of entitlement to service connection for a neck disability, to include as due to pain, and to include as secondary to a service-connected disability, is remanded. See section 3, below. 2. The claim of entitlement to service connection for a back disability, to include as due to pain, and to include as secondary to a service-connected disability, is remanded. See section 3, below. 3. The claim of entitlement to service connection for arthritis (also claimed as painful joints), to include as secondary to a service-connected disability, is remanded. The Veteran contends that he is entitled to service connection for neck and back pain, and for arthritis (claimed as painful joints). As the current evidence and analysis of these claims is largely similar, the Board has addressed them together. The evidence of record contains numerous lay contentions made by the Veteran regarding the cause of his spine and joint pain. In most of his lay statements, the Veteran asserts that his spine and joint pain developed directly or presumptively as a result of his duties in service, which included carrying heavy objects up steep ladders and other activities that "jarred" his neck. See February 2016 Statement in Support of Claim; February 2016 Form 9; September 2016 Form 9; August 2019 Appellate Brief. However, the Board finds that other lay and medical evidence of record have reasonably raised the theory of entitlement to service connection on a secondary basis, due to weight gain, potentially related to his service-connected major depressive disorder, recurrent, severe, with anxious distress (MDD). 38 C.F.R. § 3.310; see also Garner v. Tran, 33 Vet. App. 241 (2021). Obesity is not considered a disease or disability for VA purposes and is not subject to service connection; however, obesity may be an "intermediate step" in a secondary-service-connection analysis when a service-connected disability causes or aggravates obesity. Walsh v. Wilkie, 32 Vet. App. 300, 307 (2020). Incidental references to the Veteran's weight or weight gain in the evidence is insufficient to reasonably raise the theory of secondary service connection via obesity as an intermediate step, pursuant to VA General Counsel Precedential Opinion 1-2017. Garner, 33 Vet. App. at 249. 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. Id. The considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step may include, but are not limited to, (1) mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); (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 (e.g., weight gain), 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. Id. at 241, 248. In this case, the evidence of record contains an August 2013 lay Statement in Support of Claim that the Veteran's psychiatric condition (then claimed as posttraumatic stress disorder) led to "weight gain." A November 2018 VA examination regarding mental disorders included lay statements made by the Veteran, including that the Veteran "has gained weight and has chronic pain" and that he "has medical problems, fibromyalgia, hypertension, diabetes, and [use of a sleep apnea machine], that contribute to depression, anxiety and insomnia." In February 2020, an examiner opined that the Veteran's current neck, back, and joint conditions were unrelated to his active service and more likely due to "being overweight, working labor type of works and age degradation," noting that the Veteran is of an age group that "normally would have joint and spine pain" but emphasizing the role the Veteran's obesity likely played in the development of his pain and/or arthritis. The Board finds additional remand necessary to determine if there is an association between the Veteran's claimed neck, back, and joint pain, and his service-connected psychiatric disorder, to include as due to obesity as an intermediate step. The Board herein makes no final determinations as to the credibility of the above-cited lay statements or other lay and medical evidence submitted by the Veteran. The matters are REMANDED for the following action: 1. Request an opinion from an appropriate VA clinician to determine the nature and etiology of the Veteran's claimed neck, back, and joint pain disabilities. If another examination is deemed necessary, one should be conducted, to include via telehealth if warranted. The clinician shall answer the following questions: (a.) Is it at least as likely as not that the Veteran's neck, back, and/or painful joint conditions, were aggravated (increased beyond the normal progress of the disease) by his service-connected MDD? If the answer to (a.) is no, then please answer the following: (b.) Is it at least as likely as not (50 percent probability or more) that the Veteran's service-connected MDD caused him to become obese? (For example, by negatively impacting ability to exercise, stimulating appetite, affecting metabolism, etc.) (c.) If yes, then would any one or more of the Veteran's claimed neck, back, and painful joint conditions not have occurred but for the obesity caused by the service-connected psychiatric disability? If the answers to (a.) and either (b.) or (c.) are no, then please answer the following: (d.) Is it at least as likely as not that the Veteran's service-connected MDD aggravated (increased beyond the normal progression) his obesity (e.g., by negatively impacting ability to exercise, etc.)? (e.) If yes, then was the obesity, (as aggravated by the service-connected MDD), a substantial factor in causing or aggravating the neck, back, and/or joint pain disabilities? Please provide a response for each separately claimed condition. If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible. Aggravation means a functional increase in the severity of the condition. The examination report must include a complete rationale for all opinions expressed. The examiner shall be notified that a medical opinion based solely on the absence of documentation in the record or that does not address the Veteran's lay reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation for this. CONTINUED ON NEXT PAGE 2. Following completion of the above, the Agency of Original Jurisdiction (AOJ) should review the record, ensure adequacy of the examination opinions and readjudicate the claims on appeal. If any claim remains denied, the AOJ should issue an appropriate supplemental Statement of the Case, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.