Citation Nr: 22017238 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-23 872 DATE: March 24, 2022 REMANDED Service connection for left eye disability is remanded. Service connection for a sinus disability is remanded. Service connection for a heart disability is remanded. Service connection for a stroke, to include as secondary to heart disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from April 1980 to September 1984 and from September 1984 to May 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA). In November 2021, the Veteran testified at a hearing before the undersigned. A copy of the transcript is associated with the claims file. Following the hearing, the Veteran submitted additional evidence. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans' Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. The Court found that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Neither the Veteran nor the record raises unemployability due to the service-connected disability on appeal. Though the Veteran reported that she has missed work due to her knee disability, the evidence shows that she is still employed full-time. Accordingly, the Board finds that Rice is not applicable and a need for consideration of TDIU is not inferred as part of the claim for an increased rating. Bilateral patellofemoral syndrome The Veteran testified that her bilateral knee disability has increased in severity since it was first evaluated. In January 2022, she explained that her knees have worsened and she relied heavily on her walker to ambulate. She stated that she experienced almost daily swelling and pain in her knees. The Veteran was last provided a VA examination for her bilateral knee disability in 2015. The 2015 VA examination report does not address whether there was pain on non-weight-bearing and passive range of motion, failing to comply with Correia v. McDonald, 28 Vet. App. 158 (2016). A new VA examination is required to ascertain the current severity of her bilateral knee disability. In addition, the Veteran testified that the range of motion of her knees was tested last year at VA and should be in her records. Updated VA treatment records must be obtained and associated with the claims file. Finally, the Board directs the Agency of Original Jurisdiction (AOJ) to address the single disability rating assigned for the Veteran's service-connected bilateral knee disability. The AOJ should take appropriate action to separate the issues and assign separate disability ratings for each knee. Left eye disability The Veteran contends that her current left eye disability is related to service. Review of the service treatment records (STRs) shows that the Veteran had left eye irritation in August 1981 when she got soap in her eye. In addition, A.E., who served with the Veteran, submitted a statement noting that she witnessed the Veteran with constant watering eyes. Current VA medical treatment records show that the Veteran complained of redness in her left eye. Where there is evidence of a current disability or persistent or current symptoms of a disability and an in-service incident or injury, and the possibility of a nexus between them, remand is required to obtain an examination and medical opinion. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that a VA examination is required. Sinus disability The Veteran asserts that her sinus disability is related to service. Review of STRs shows multiple complaints related to sinus trouble. A March 1985 STR indicates that the Veteran was seen the previous week for sinusitis. A post-service 2012 brain MRI shows left maxillary sinus inflammation and private medical treatment records in 2012 show an assessment of sinusitis. A 2021 sinusitis disability benefits questionnaire shows a diagnosis of allergic rhinitis. Given this evidence, the Board finds that a VA examination is required. Heart disability The Veteran contends that her heart disability is directly related to service, noting that she experienced chest tightness during service. A.C. submitted a statement attesting to witnessing the Veteran experience chest tightness during service. The medical evidence shows that the Veteran had a myocardial infarction in 2012. In addition, the Veteran asserts that her current cardiovascular disease was the result of her service-connected bilateral knee disability, to include weight gain incurred as a result of her bilateral knee disability. See Garner v. Tran, 33 Vet. App. 241 (2021). 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, 157-158 (2018). However, OGC recognized 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). VAOPGCPREC No. 1-2017 (Jan. 6, 2017). OGC further explained that adjudicators would have to resolve the following issues: (1) whether the service-connected disability caused the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the claimed sleep apnea disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. If these questions are answered in the affirmative, the service connection for the claimed disability may be granted on a secondary basis. In Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020), the Court held that the Board needs to consider the obesity-intermediate step theory based on aggravation where appropriate. The Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability caused the veteran to become obese or aggravated the veteran's obesity; (2) if so, whether the obesity or 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 or aggravated by the service-connected disability. On remand, a VA examination must be provided for the Veteran's heart disability, to include a medical opinion as to whether the Veteran's service-connected bilateral knee disability caused or aggravated the Veteran's obesity and if obesity is a substantial factor in causing the Veteran's heart disability. Stroke, to include as secondary to heart disability The issue of service connection for a stroke is inextricably intertwined with the issue of service connection for a heart disability. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board must defer adjudication of this issue. The matters are REMANDED for the following action: 1. Associate updated VA medical treatment records with the claims file. 2. Contact the Veteran and request properly executed releases for any private care providers who have treated her in connection with any claimed condition. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative she may obtain and submit the records herself. 3. Schedule the Veteran for a new VA examination for her service-connected bilateral knee disability. The claims file must be reviewed by the examiner. The examination report must include all manifestations of the Veteran's left and right knee disabilities. 4. Schedule the Veteran for a VA examination for her claimed sinus disability. The claims file must be reviewed by the examiner. The examiner must opine whether it is at least as likely as not that any sinus disability was caused or aggravated by active service. Rationale must be provided for any opinion reached. The examiner must address the STRs documenting complaints of sinus trouble, and lay statements concerning sinus symptoms during service and since separation from service. 5. Schedule the Veteran for a VA examination for her claimed heart disability. The claims file must be reviewed by the examiner. After reviewing the claims file and copy of this remand, the examiner should address the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's heart disability is caused or aggravated by active service. The examiner must address the Veteran's statements and A.E.'s statements concerning chest tightness during service and the physician's statement that the changes on her 2012 echocardiogram were old. (b) Provide an opinion as to whether the Veteran's heart disability is at least as likely as not proximately due to or aggravated by the service-connected left and right knee disabilities. (c) Provide an opinion as to whether it is at least as likely as not that (i) the Veteran's service-connected left and right knee disabilities caused the Veteran to become obese or aggravated her obesity; (ii) if so, whether the obesity or aggravation of obesity resulted from the service-connected bilateral knee disability was a substantial factor in causing the heart disability; and (iii) whether the current heart disability would not have occurred but for the obesity caused or aggravated by the service-connected bilateral knee disability. Rationale must be provided for any opinion reached. 6. Obtain a medical opinion from an appropriate clinician as to whether the Veteran's heart condition at least as likely as not caused or aggravated her stroke. Provide an opinion as to whether it is at least as likely as not that (i) the Veteran's service-connected left and right knee disabilities caused the Veteran to become obese or aggravated her obesity; (ii) if so, whether the obesity or aggravation of obesity resulted from the service-connected bilateral knee disability was a substantial factor in causing the heart disability; and (iii) whether the stroke would not have occurred but for the obesity caused or aggravated by the service-connected bilateral knee disability. 6. Then, readjudicate the remanded claims, to include assigning separate disability ratings for the service-connected bilateral knee disability. If any benefit sought remains denied, issue a supplemental statement of the case and, after appropriate time for response, return the matter to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Seay, 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.