Citation Nr: 20067167 Decision Date: 10/16/20 Archive Date: 10/16/20 DOCKET NO. 06-29 718 DATE: October 16, 2020 REMANDED Entitlement to service connection for a bilateral hip disorder, to include as secondary to service-connected bilateral knee disabilities, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Coast Guard from August 1971 to August 1975. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2005 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran contends that his bilateral hip disorder was caused or aggravated by obesity that resulted from his service-connected bilateral knee disabilities. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.310 (a). 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995) In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. While obesity is not a disability for VA compensation purposes, it can be an “intermediate step” between a current disability and a service-connected disability for purposes of secondary service connection if it is found that “(1) the service-connected disability caused the veteran to become obese; (2) the obesity was a substantial factor in causing the claimed secondary disability; and (3) the claimed secondary disability would not have occurred but for obesity caused by the service-connected disability.” Marcelino v. Shulkin, 29 Vet. App. 155 (2018); VAOPGCPREC 1-2017 (Jan. 6, 2017). In a more recent decision, the United States Court of Appeals for Veterans’ Appeals (the Court) found that the proper interpretation of VAOPGCPREC 1-2017 required consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability caused or aggravated 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 current disability; and (3) whether the current disability would not have occurred but for the obesity caused or aggravated by the service-connected disability. Walsh v. Wilkie, No. 18-045 (Feb. 24, 2020). If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Id. The Board notes that this matter was remanded for additional development in September 2019. Specifically, the Board remanded for an additional VA examination that addressed the following: (1) whether the Veteran’s service connected bilateral knee disabilities caused the Veteran to become obese; (2) whether the obesity as a result of the service-connected bilateral knee disabilities was a substantial factor in causing the bilateral hip disorder; and (3) whether the bilateral hip disorder would not have occurred but for obesity caused by the service connected disabilities. The Board notes that this remand directive was issued prior to the Court’s decision in Walsh v. Wilkie. The VA examination was conducted in December 2019. The Veteran was diagnosed with bilateral hip replacement. The examiner noted the reports of worsening bilateral hip pain prior to replacement surgery, with subsequent hip weakness since surgery. However, the examiner gave a negative opinion that the Veteran’s obesity was caused by his service-connected bilateral knee disabilities. The examiner noted that obesity results from poor dietary choices and “one can have no obesity issues despite knee issues if the person eats correctly.” He then gave a negative opinion that the bilateral hip disorder was caused by the service-connected bilateral knee disabilities. The examiner noted that the Veteran’s long standing history of morbid obesity was the likely etiology of the bilateral hip disorder. He also noted that there was insufficient medical evidence otherwise to support that the bilateral hip disorder was the result of the bilateral knee pathologies alone. Based on the application of Walsh v. Wilkie, the Board finds that the examiner failed to render an adequate opinion on the etiology of the Veteran’s obesity. Specifically, the examiner failed to address whether the service-connected bilateral knee disability aggravated the Veteran to become obese. In addition, the examiner failed to address whether the bilateral hip disorder would not have occurred but for obesity being aggravated beyond its normal progression due to the bilateral knee disabilities. An opinion is needed on whether (1) the service-connected bilateral knee disability caused or aggravated the Veteran to become obese; (2) whether the obesity as a result of the service-connected bilateral knee disability was a substantial factor in causing the current bilateral hip disorder; and (3) whether the bilateral hip disorder would not have occurred but for the obesity caused or aggravated by the service-connected disability. Furthermore, the examiner failed to render an opinion as to whether the bilateral hip disorder was aggravated beyond its normal progression due to the Veteran’s service-connected bilateral knee disability. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the December 2019 VA examination is inadequate based on the examiner’s failure to render an adequate opinion regarding the Veteran’s obesity and on aggravation. As such, the Board remands this matter for the issuance of an addendum VA medical opinion. The matter is REMANDED for the following action: 1. Obtain updated VA and/or identified pertinent private treatment records to the extent possible. If any such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Once the above has been completed to the extent possible, obtain an addendum opinion from a medical professional with appropriate expertise regarding the etiology of the Veteran’s bilateral hip disorder. The examiner should review the Veteran’s claims file and note in the examination report that the claims file was reviewed. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one (or telehealth interview, if an in-person examination is not feasible). Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral hip disorder condition was caused or aggravated by any of his service-connected disabilities, including but not limited to, his bilateral knee disabilities? The examiner must render opinions on both causation and aggravation. (b.) Whether it is at least as likely as not that any of the Veteran’s service-connected disabilities or all of them caused or aggravated the Veteran to become obese? The examiner must render opinions on both causation and aggravation (c.) If the answer to (b.) is yes, then whether it is as least as likely as not that the Veteran’s obesity was a substantial factor in causing his bilateral hip disorder; and (d.) If the answer to (c.) is yes, then, whether it is at least as likely as not that the Veteran’s bilateral hip disorder would not have occurred but for obesity caused by the Veteran’s service connected disabilities. 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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. “Aggravation” means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.