Citation Nr: 18150293 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-23 863 DATE: November 14, 2018 ORDER Service connection for a left knee disability is granted. Service connection for a low back disability is granted. REMANDED The issue of entitlement to special monthly compensation (SMC) based on aid & attendance or housebound status is remanded. FINDINGS OF FACT 1. The Veteran’s left knee disability, diagnosed as osteoarthritis, is due to obesity that is as likely as not attributable to his service-connected right ankle and right knee disabilities. 2. The Veteran’s low back disability, diagnosed as osteoarthritis, is due to obesity that is as likely as not attributable to his service-connected right ankle and right knee disabilities. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a left knee disability, as secondary to service connected right ankle and right knee disability, have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a low back disability, as secondary to service connected right ankle and right knee disability, have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1979 to January 1986. The Board observes that, along with the current issues on appeal, the Veteran filed a claim of entitlement to service connection for unspecified degenerative joint disease. The United States Court of Appeals for Veterans Claims (Court) has held that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In this case, degenerative joint disease issues are clearly associated with the Veteran’s claim of entitlement to service connection for a left knee disability and low back disability. Based on the Veteran’s statements and the evidence submitted in support of his claim for unspecified degenerative joint disease, the Board finds this claim is reasonably encompassed by his claim of entitlement to service connection for left knee and low back disabilities. Besides the left knee and low back disabilities, the Veteran has not described degenerative joint disease issues associated with any other anatomically separate part of the body in conjunction with the claims currently on appeal. Accordingly, the Board has characterized the issues of entitlement to service connection for left knee and low back disabilities to encompass his claim for entitlement to service connection for unspecified degenerative joint disease. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current 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. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be granted for a disability which is proximately due to or the result of a service connected disability. 38 C.F.R. § 3.310(a). Additionally, for Veterans who have served 90 days or more of active service during a period of war or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. When a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing a continuity of symptomatology after service. 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Left knee As a preliminary matter, the Board notes that in the May 2014 rating decision on appeal, the Regional Office (RO) characterized the Veteran’s October 2013 claim as a request to reopen his claim of entitlement to service connection for a left knee disability. The RO cited a March 2013 rating decision that denied the Veteran’s December 2009 claim of entitlement to service connection for a left knee disability. The Board observes that VA treatment records dated within the year following the March 2013 rating decision were submitted in support of the Veteran’s claim of entitlement to service connection for a left knee disability. The Federal Circuit Court of Appeals has held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). In this case, the evidence submitted within one year of the March 2013 rating decision contained treatment records indicating that the Veteran's left knee disability is related to obesity. The Board observes that obesity may qualify as an intermediate step for establishing service connection under 38 C.F.R. § 3.310(a); therefore, the Board finds that new and material evidence was submitted within one year of the March 2013 rating decision. VAOPGCPREC 1-2017. In any case where new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). As such, there is no prior final denial, and this appeal stems from the December 2009 claim for service connection for a left knee disability. Additionally, the Board observes that the Veteran submitted a claim of entitlement to service connection for a left knee disability secondary to his service connected right knee disability in May 2016. The Board finds the May 2016 claim for entitlement to service connection for a left knee disability stems from the Veteran’s December 2009 claim, as a new theory of causation for the same disease or injury cannot be the basis of a new claim. Boggs v. Peake, 520 F.3d 1330, 1336 (2008). The Veteran contends his current left knee disability, diagnosed as degenerative arthritis, is secondary to his service connected right knee disability. See May 2016 VA Form 21-526EZ. In connection with this claim, the Veteran was afforded a VA examination in May 2016 to assess whether his current left knee disability is at least as likely as not (50 percent or greater probability) proximately due to or the result of his service connected right ankle or right knee disability. After reviewing the claims file, all available medical records, and current medical literature, the examiner opined that the Veteran’s left knee disability is more likely related to decompensation and morbid obesity. In the precedential opinion, VAOPGCPREC 1-2017, the VA General Counsel held that, while obesity is not a “disease” or “disability” for VA purposes, it could qualify as an “intermediate step” between a service connected disability and a current disability. Therefore, a Veteran could establish entitlement to service connection for a disability on a secondary basis under 38 C.F.R. § 3.310(a) if: (1) a service connected disability caused the Veteran to become obese, and (2) the resulting obesity was a proximate cause of the current disability. A determination of proximate cause is basically one of fact. VAOPGCPREC 6-2003 and 19-1997. Among other conditions, the Veteran is service connected for a right ankle and right knee disability. The Board observes that service treatment records document the Veteran complained of chronic right ankle pain and swelling in October and November 1980, and November 1982, as well as a right knee injury in August 1980. Notably, following the injuries to his right ankle and right knee in service, the Veteran began to exceed the maximum weight allowed for retention in the Army. See March 1983, May 1983, November 1984, January 1985, February 1985, March 1985, April 1985, November 1985 weight measurements in service treatment records. The Veteran was eventually involuntarily separated from service in January 1986 for failure to comply with weight control standards. It is well documented in the available VA treatment records that the Veteran has a history of increasing obesity following separation from service. In a February 2007 VA internal medicine note, the Veteran reported his knees made it hard to move or exercise in order to lose weight. In a June 2009 VA progress note, the provider noted crepitus during the bilateral knee examination, particularly in the right knee, and indicated a cycle of weight making the Veteran’s knee worse and his knee making him unable to exercise. In his July 2016 Notice of Disagreement, the Veteran reported gaining weight due to difficulty moving, and that at times he was unable to stand due to his service connected right ankle disability. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that (1) the Veteran’s service connected right ankle and right knee disability caused the Veteran to become obese, (2) the obesity was a substantial factor in causing the Veteran’s left knee disability, and (3) the left knee disability would not have occurred but for obesity caused by the service connected right ankle and right knee disability. Accordingly, the Board finds that entitlement to service connection for a left knee disability is warranted on a secondary basis. 2. Low back The Veteran contends his low back disability, diagnosed as degenerative arthritis of the spine, is related to service from sleeping in and on tanks. See May 2016 Notice of Disagreement. In connection with his claim, the Veteran was afforded a VA examination in May 2016. The VA examiner opined that the Veteran’s current degenerative back condition is less likely than not incurred in or caused by back pain during service, and more likely related to an increased risk for osteoarthritis due to morbid obesity. Similarly, a December 1999 VA rheumatology note indicated the Veteran’s low back pain was most likely due to weight. As such, the competent evidence of record indicates his low back disability is likely due to morbid obesity. Similar to the Board’s finding of service connection for the Veteran’s left knee disability above, the Board finds that the Veteran’s service-connected right ankle and right knee disability caused the Veteran to become obese, and the Veteran’s obesity in turn is the proximate cause of his low back disability. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that entitlement to service connection for a low back disability is warranted on a secondary basis. REMANDED ISSUE In pertinent part, Special Monthly Compensation based on aid and attendance is payable where a Veteran has a single service connected disability rated as 100 percent and has additional service connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Court has held that the VA has a duty to maximize a claimant’s benefits, and this duty requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Significantly, any disability rating assigned in connection with the above decision granting service connection for left knee and low back disabilities could affect the outcome of the Veteran’s SMC claim. As such, the claims are inextricably intertwined, and remand is required. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matter is REMANDED for the following action: 1. Readjudicate the claim for SMC. If the SMC claim remains denied, the Veteran should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. If otherwise in order, the case should be returned to the Board for further appellate consideration. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Mask, Associate Counsel