Citation Nr: 1801098 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-11 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a right ankle condition. 2. Entitlement to service connection for a left ankle condition 3. Entitlement to service connection for a right hip condition. 4. Entitlement to service connection for a left hip condition. 5. Entitlement to service connection for a right knee condition. 6. Entitlement to service connection for a left knee condition. 7. Entitlement to service connection for a right shoulder condition. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran and S.T. ATTORNEY FOR THE BOARD C. O'Donnell, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from November 1979 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In January 2017, the Veteran testified before the undersigned at a video-conference Board hearing. A transcript of the hearing is associated with the claims file. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Board finds that additional VA examinations and opinions are warranted before proceeding to a decision on the Veteran's appeal. In that regard, opinions of record note that each of the Veteran's conditions on appeal were, at least partially, a result of his weight. However, the Veteran testified that, as a result of his service-connected degenerative disc disease, he was no longer able to perform the physical activities that he had been able to perform prior to his injury. In essence, he contends that the reduction in activities had led to his increased weight. See Board Hearing Transcript at 6-7. However, the November 2011 VA examination report of record does not address the causation of the Veteran's weight gain, and the November 2013 VA examination report, while noting that that the Veteran's weight was likely due, in part, to his lifestyle choices, does not indicate whether the Veteran's lifestyle choices were the result of the Veteran's service-connected degenerative disc disease. Further, the November 2011 and November 2013 VA examiners reported that the Veteran had a genetic predisposition to degenerative joint disease; yet, the examiners did not provide a rationale as to why the Veteran is predisposed to degenerative joint disease. As indicated above, the Veteran contends that his service-connected degenerative disc disease resulted in obesity, which in turn, resulted in the additional disabilities that are the subject of this appeal. The Board is cognizant of VA's January 6, 2017, Office of General Counsel (OGC) precedential opinion addressing questions regarding whether obesity may be considered a "disease" for the purposes of service connection under U.S.C. §§ 1110 and 1131. In that regard, VAOPGCPREC 1-2017 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). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to an appropriate VA examiner in order to obtain an opinion as to the nature and etiology of the Veteran's right and left ankle conditions. If a new examination is deemed necessary to respond to this request, one should be scheduled. The examiner should review the claims file and provide and addendum opinion addressing the following: a. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right and left ankle conditions, to include degenerative joint disease, manifested in service or are otherwise causally or etiologically related to the Veteran's military service. Specifically, the examiner must address the Veteran's contention that he injured his ankles when he was hit by a hose cart in service. See Board Hearing Transcript at 15-16. b. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right and left ankle conditions, to include degenerative joint disease, are caused or aggravated by obesity that is at least as likely as not (50 percent probability or greater) attributable to his service-connected degenerative disc disease. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Return the claims file to an appropriate VA examiner in order to obtain an opinion as to the nature and etiology of the Veteran's right and left hip conditions. If a new examination is deemed necessary to respond to this request, one should be scheduled. The examiner should review the claims file and provide and addendum opinion addressing the following: a. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right and left hip conditions, to include degenerative joint disease, manifested in service or are otherwise etiologically related to his service. Specifically, the examiner must address the Veteran's contention that he injured his hips when he was hit by a hose cart in service. See Board Hearing Transcript at 15-16. b. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right and left hip conditions, to include degenerative joint disease, are caused or aggravated by obesity that is at least as likely as not (50 percent probability or greater) attributable to his service-connected degenerative disc disease. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Return the claims file to an appropriate VA examiner in order to obtain an opinion as to the nature and etiology of the Veteran's right and left knee conditions. If a new examination is deemed necessary to respond to this request, one should be scheduled. The examiner should review the claims file and provide and addendum opinion addressing the following: a. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right and left knee conditions, to include degenerative joint disease, manifested in service or are otherwise etiologically related to his service. Specifically, the examiner must address the Veteran's contention that he injured his knees from being hit by a hose cart in service. See Board Hearing Transcript at 15-16. b. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right and left knee conditions, to include degenerative joint disease, are caused or aggravated by obesity that is at least as likely as not (50 percent probability or greater) attributable to his service-connected degenerative disc disease. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Return the claims file to an appropriate VA examiner in order to obtain an opinion as to the nature and etiology of the Veteran's right shoulder condition. If a new examination is deemed necessary to respond to this request, one should be scheduled. The examiner should review the claims file and provide and addendum opinion addressing the following: a. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right shoulder condition, to include AC degenerative joint disease, manifested in service or are otherwise etiologically related to his service. b. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right shoulder condition, to include AC degenerative joint disease, is caused or aggravated by obesity that is at least as likely as not (50 percent probability or greater) attributable to his service-connected degenerative disc disease. The examiner should specifically address the Veteran's use of a cane to assist with his gait, for which he reported using as a result of pain he experienced from his service-connected degenerative disc disease. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be readjudicated by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).