Citation Nr: 21062913 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-31 791 DATE: October 12, 2021 REMANDED Service connection for respiratory disorder to include asthma, bronchitis, and obstructive airway disease (hereinafter "respiratory disease") is remanded. Service connection for left knee disorder, to include degenerative joint disease (DJD), is remanded. Service connection for left hip disorder, to include osteoarthritis (hereinafter "left hip disorder") is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1992 to March 1993. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board previously remanded these claims in February 2019 and again in March 2020. Unfortunately, as will be discussed in more detail below, remand is again necessary to ensure substantial compliance with the March 2020 remand directives and provide the Veteran adequate VA examinations. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Service connection for respiratory disease is remanded. The Veteran contends she has a respiratory disease that was caused by or incurred during service. The Board finds the evidence of record is insufficient to resolve her claim. The Veteran has been afforded multiple VA examinations to determine the nature and etiology of any respiratory disease, the most recent of which occurred in March 2020. The examiner provided a direct service connection opinion with a rationale stating, "unable to determine chronicity of asthma diagnosis and establish nexus to service." Regarding pre-existing conditions, the examiner offered an opinion with a rationale noting, "Unable to establish asthma that existed prior to service and unable to establish nexus." The examiner failed, however, to explain why he was unable to render an opinion regarding chronicity and pre-existence to service. Thus, remand is necessary for an addendum opinion. See Jones v. Shinseki, 23 Vet. App. 382, 390-92 (2010). Additionally, upon review, the Board notes service treatment records confirm in-service treatment for bronchitis and the Veteran has contended that this in-service bout of bronchitis caused her current asthma condition. To date, an examiner has not addressed this contention. Thus, upon remand, additional consideration should be lent to this remaining unaddressed contention. This claim is remanded for an addendum opinion. 2. Service connection for left knee disorder, to include DJD, is remanded. The Veteran contends she has a left knee disorder that was caused by or incurred during service. The Board finds the evidence of record is insufficient to resolve her claim. The Veteran has been afforded multiple VA examinations to determine the nature and etiology of any left knee disorder, the most recent of which occurred in March 2020. The examiner found a diagnosis of left knee strain but noted that the Veteran had a pending MRI for which results were not available. Since then, MRI results have been added to the claims file noting degenerative change of the articular cartilage of the patella and minimal joint effusion. While an addendum was obtained in March 2021, said addendum pertained to a previous diagnosis of left knee strain. To date, an examiner has not addressed this newly diagnosed DJD. Additionally, the March 2020 examiner incorrectly stated the Veteran's service treatment records (STRs) are silent for a knee injury. Upon review, however, on multiple occasions in 1992, the Veteran's STRs note pain and swelling in the left knee. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The examiner also failed to consider or address the Veteran's lay statements of experiencing symptoms including left knee pain since the contended in-service incident and following separation. See Miller v. Wilkie, 32 Vet. App. 249 (2020). Thus, remand is necessary to obtain an addendum opinion. 3. Service connection for left hip disorder is remanded. The Veteran contends she has a left hip disorder that was caused by or incurred during service, or in the alternative is secondary to a left knee disorder. Of note, treatment records reference changes in gait due to left knee pain. The Board has remanded service connection for a left knee disorder within this decision for additional development. Thus, remand is required regarding service connection for a left hip condition as it is inextricably intertwined with the pending service connection claim for a left knee disorder. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, the Veteran has contended that her left hip disorder has been attributed, in-part, to obesity and her left knee disorder has prohibited her from exercising thereby causing obesity. The Board notes that obesity is not a disability for purposes of VA benefits; hence, it cannot be service connected on a direct basis. See Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an "intermediate step." See VAOPGCPREC 1 2017 (Jan. 6, 2017). Specifically, benefits are warranted (1) if the service-connected disability caused the Veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if the subsequent disability would not have occurred but for obesity. Id. As such, a VA examination addressing these theories of entitlement would be needed if service connection for a left knee disorder is granted following the additionally directed development herein. Thus, a decision regarding the Veteran's secondary service connection claim for a left hip disorder cannot be made until the Veteran's underlying service connection claim is decided. This claim is remanded as inextricably intertwined with the Veteran's service connection claim for a left knee disorder. The matters are REMANDED for the following action: 1. Return the entire claims file and this remand to the March 2020 VA examiner for an addendum opinion, including rationale, addressing whether it is at least as likely as not the Veteran's respiratory disease was caused by, incurred in, or otherwise related to service. In so opining, the examiner is directed to address and consider whether the Veteran's STRs noting bronchitis could have been a manifestation of asthma, including a first episode, or caused her current asthma disability. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Return the entire claims file and this remand to the March 2020 VA examiner for an addendum opinion, addressing the following: - Identify any and all left knee diagnoses and/or disabilities found at the time of the examination or found in the medical evidence during the pendency of this appeal, to include left knee strain, arthritis, or any pain that causes functional impairment of earning capacity (and thus would be considered a "disability" for VA purposes even if not attached to a diagnosis); - For each disability identified, opine whether the disability is at least as likely as not caused by or incurred during service, in light of 1992 service treatment record entries noting in-service complaints and treatment for pain and swelling in the left knee and in consideration of the Veteran's lay description of in-service incurrence and chronicity of symptoms since service. - For any arthritis of the knee found, opine whether the arthritis at least as likely as not (1) began during active service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In so opining, the examiner is directed to address and consider the Veteran's March 2020 MRI imaging results reflecting degenerative changes as well as the Veteran's lay statements of experiencing left knee symptoms during service and since separation. The examiner is directed to address and consider the Veteran's STRs noting left knee pain and swelling during service. - If service connection for a left knee disorder is warranted, the examiner should also render an opinion addressing the following: o Whether the Veteran has a left hip disorder that was at least as likely as not caused or aggravated by the left knee disorder. In so opining, the examiner is directed to address and consider whether the Veteran's treatment records noting gait changes due to knee pain caused or aggravated the Veteran's left hip disorder. o (1) Whether it is at least as likely as not the Veteran's left knee disorder caused the Veteran to become obese, (2) if yes, was the obesity a substantial factor in causing or aggravating the Veteran's left hip disorder, and (3) if yes, would the left hip disorder not have occurred but for the obesity caused by the Veteran's left knee disorder? The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.