Citation Nr: 21001561 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 10-35 406 DATE: January 8, 2021 REMANDED Entitlement to service connection for a right foot disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1995 to September 2000. His decorations include the Kosovo Campaign Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. The issue on appeal was previously before the Board in November 2015, March 2017, January 2018, and November 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. On each occasion, after taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Although the Board regrets the delay, remand is required to ensure there is a complete record on which to decide the Veteran’s claim and to afford him every possible consideration.  Entitlement to service connection for a right foot disorder is remanded. The Veteran seeks to establish service connection for a right foot disorder. He has been diagnosed with multiple right foot conditions, including pes cavus, Morton’s neuroma, Achilles tendon enthesophyte, and Achilles tendonitis. His current symptoms include pain and a decreased ability to walk or stand for extended periods. He asserts that his right foot disorders are a result of in-service injuries. Alternatively, he contends that his disorders are secondary to his service-connected disabilities, including shin splints, arthritis of the knees, and irritable bowel syndrome (IBS). The Veteran has been provided multiple VA examinations in an effort to assess the etiology of his right foot disorders. Most recently, a January 2020 VA examiner opined that the Veteran’s pes cavus was not caused or aggravated by an in-service event or experience. The examiner also opined that the Veteran’s pes cavus was not permanently worsened beyond natural progression by a service-connected disability. The examiner concluded that obesity is not a known cause for pes cavus, and that Morton’s neuroma was likely secondary to the pes cavus. The examiner also found that Achilles tendon enthesophyte had not been aggravated by a service-connected disability. The examiner reasoned that lack of chronicity of complaints did not support a finding that the condition was caused or aggravated by his service-connected disabilities. The examiner reasoned, in part, that the condition was found well after service and was likely related to obesity and sedentary lifestyle. The examiner also noted that there were ways the Veteran could achieve a healthy lifestyle despite his service-connected disabilities, including his musculoskeletal conditions. Finally, the examiner concluded that the claimed right Achilles tendonitis condition, which the examiner described as an ankle condition, was less likely than not due to or caused by a service-connected disability. The examiner reasoned that the condition was due to pes cavus, and not related to service. Although service connection is not allowed for obesity on its own, obesity can act as an “intermediate step” to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See VAOPGCPREC 1-2017. The VA General Counsel has indicated that establishing service connection in a case such as the Veteran’s requires resolution of three issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity due to the service-connected disability was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. Id. In a recent decision, the United States Court of Appeals for Veterans Claims (Court) modified the analysis set out in the General Counsel’s opinion, holding that in considering whether obesity is an “intermediate step,” consideration must be given to whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310. Walsh v. Wilkie, 32 Vet. App. 300 (2020). Here, the January 2020 examiner was not asked to address, and did not explicitly address, the question of whether the Veteran’s obesity had been aggravated by his service-connected musculoskeletal conditions or his IBS. As such, an addendum opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed, make arrangements to provide the record on appeal to the VA examiner who previously offered opinions with respect to the etiology of the Veteran’s right foot disorders in January 2020. The examiner should be asked to review the expanded record and prepare a supplemental report offering an opinion as to each of the following questions: a. Is it at least as likely as not (i.e., is it 50 percent or more probable) that the Veteran’s service-connected disabilities caused the Veteran to become obese, or aggravated his obesity, whether by interfering with his ability to exercise or otherwise? b. If so, is it at least as likely as not that the obesity due to service-connected disability was a substantial factor in causing any of the Veteran’s right foot/ankle conditions? c. Is it more likely than not (i.e., more than 50 percent likely) that the Veteran’s right foot conditions would not have occurred but for the obesity caused or aggravated by his service-connected disabilities? If the prior examiner is no longer employed by VA, or is otherwise unable to provide the opinions requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinions. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph T. Leonard, Law Clerk 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.