Citation Nr: 21000252 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-08 917 DATE: January 4, 2021 REMANDED Entitlement to service connection for neurological condition of the right upper extremity is remanded. Entitlement to service connection for neurological condition of the left upper extremity is remanded. REASONS FOR REMAND The Veteran served from November 1967 to November 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in November 2017, May 2018, and June 2020, where it was remanded for additional development. It now returns to the Board for adjudication. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c); 38 U.S.C. § 7107(a)(2). The Board acknowledges that this matter has already been before the Board three times, and regrets that it must remand the matter again. The Veteran seeks service connection for right and left upper extremity neurological conditions. The record shows that the Veteran was diagnosed with, in relevant part, carpal tunnel syndrome and obesity. The Board previously remanded this matter to determine whether obesity was related to one of the Veteran’s service-connected disabilities or his carpal tunnel syndrome. Although obesity is not a disease or disability, under VA General Counsel opinion VAOPGCPREC 1-2017, obesity may serve as an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis. If (1) a service-connected disability caused or aggravated a veteran’s obesity; (2) the obesity as a result of a service-connected disability was a substantial factor in causing a disability that may be service connected on a secondary basis; and (3) the disability that may be service connected on a secondary basis would not have occurred but for obesity caused by a service-connected disability, the Veteran would be entitled to service connection for the current disability on a secondary basis. VAOPGCPREC 1-2017. Whether obesity is a “substantial factor” or a “but for” cause of a disability is defined with reference to proximate cause as follows: “Proximate cause” is defined as a “cause that directly produces an event and without which the event would not have occurred.” VAOPGCPREC 6-2003 (quoting Black’s Law Dictionary 213 (7th ed. 1999)). When there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. Id. (citing Shyface V. Sec’y of Health & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999)). Consistent with the terms of VAOPGCPREC 1-2017, the Board, in its June 2020 remand, ordered the VA examiner to opine on (1) whether any of the Veteran’s service-connected disabilities caused or aggravated the Veteran’s obesity, (2) whether the Veteran’s obesity was a substantial factor in causing the Veteran’s carpal tunnel syndrome, and (3) whether the Veteran’s carpal tunnel syndrome would have occurred but for the Veteran’s obesity. A review of the August 2020 VA addendum opinion shows that the examiner did not substantially comply with these remand requirements. Initially, in considering whether any of the Veteran’s service-connected conditions could have caused or aggravated the Veteran’s obesity, the examiner opined in part that “[b]ilateral hearing loss, tinnitus and glaucoma are not caused by obesity.” The examiner reversed the question of cause and effect and did not substantially answer the Board’s question. Additionally, the examiner stated that the Veteran’s psychiatric condition “can be related” with an increased risk of weight gain, although it “do[es] not translate directly in obesity.” The Board finds that this statement is not conclusive, as the examiner does not state the likelihood of a connection with the appropriate degree of certainty. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Finally, with respect to the questions of whether obesity was a substantial factor or a but for cause of carpal tunnel syndrome, the examiner stated that obesity “by itself” does not cause carpal tunnel syndrome as grounds for answering no. But whether obesity “by itself” does or does not cause carpal tunnel syndrome does not fully answer either question. First, with respect to the substantial factor question, the examiner acknowledges that obesity is a “risk factor” for carpal tunnel syndrome. Even if obesity does not, by itself, cause carpal tunnel syndrome, this is not the same as not being a substantial factor in the development of carpal tunnel syndrome. Second, with respect to the “but for” question, even if obesity does not cause carpal tunnel syndrome, this does not eliminate the possibility that obesity, in conjunction with another condition, could cause carpal tunnel syndrome. That is, if obesity and some other factor would jointly cause carpal tunnel syndrome, the Veteran would not have developed carpal tunnel syndrome “but for” his obesity. Obesity would be a “but for” cause of carpal tunnel syndrome even if it was not the cause “by itself." The opinion does not fully answer the questions. A veteran has a right to substantial compliance with a remand order from the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). Because the VA examination did not substantially answer the Board’s questions, the Board will remand the matter. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate examiner. Schedule the Veteran for an additional exam if the examiner deems necessary. The examiner is directed to read this order of remand, and answer the questions: a) The Veteran is service-connected for a psychiatric disability, prostate cancer, diabetic peripheral neuropathy of the lower extremities bilaterally, diabetes mellitus, bilateral hearing loss, tinnitus, and bilateral primary open-angle glaucoma. Is it at least as likely as not that any of the Veteran’s previously service-connected disabilities either caused or aggravated the Veteran’s obesity? b) If so, is it at least as likely as not that the Veteran’s obesity was a substantial factor in causing the Veteran’s carpal tunnel syndrome of the bilateral upper extremities? (Continued on the next page)   c) Is it at least as likely as not that the Veteran’s carpal tunnel syndrome of the bilateral upper extremities would have occurred but for the Veteran’s obesity? J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael D. Wagner, 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.