Citation Nr: 21067627 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19-29 017A DATE: November 4, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease (DJD) with limitation of flexion is remanded. Entitlement to a compensable rating for right knee DJD with limitation of extension is remanded. Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for diabetes mellitus, type II is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1988 to November 1992. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from August 2017, February 2018, and June 2018 rating decisions issued by the Agency of Original Jurisdiction (AOJ). In August 2020, the Board, in pertinent part, denied an increased rating for the Veteran's right knee disability, denied service connection for a right ankle disability and diabetes mellitus, and remanded the Veteran's claim for service connection for sleep apnea to obtain a nexus opinion. The Veteran subsequently appealed to the United States Court of Appeals for Veterans' Claims (Court). In June 2021, the Court granted the Parties' Joint Motion for Partial Remand (JMR), vacating the aforementioned portion of the August 2020 Board decision and remanded the appeal to the Board. In light of the Joint Motion, a remand is necessary. The parties agreed that the Board erred by relying upon an inadequate medical opinion as to the Veteran's right knee. Additionally, the parties agreed the Board failed to provide adequate reasons and bases for its denial of service-connection for diabetes mellitus and an ankle condition. Additionally, the Veteran's claim for service connection for sleep apnea has been returned to the Board for appellate review. The Board finds the October 2020 VA opinion is inadequate. Thus, further remand is required to ensure compliance with the August 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an increased rating for the Veteran's right knee disability is remanded. A remand is necessary for another VA examination as the rating criteria for the knee were revised, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). The most recent VA examination, dated December 2020, does not address the regulatory changes for instability under DC 5257. 2. Entitlement to service connection for a right ankle condition is remanded. The Veteran was provided a VA examination in October 2019 to determine the nature of his right ankle condition. The examiner opined that the Veteran's right ankle condition was not caused by his right knee condition because "the ankle and the knee are in a different anatomical location and thus one condition did not cause the other condition." The Board notes that secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). Therefore, the question of "aggravation" is pertinent in order for the Board to properly adjudicate the Veteran's claim. Accordingly, further remand is necessary. A VA examiner should provide an addendum opinion that adequately addresses all theories of entitlement. 3. Entitlement to service connection for diabetes mellitus, type II is remanded. The Veteran contends that his service-connected musculoskeletal disabilities have reduced his ability to exercise resulting in obesity and, in turn, diabetes mellitus. The Board notes that obesity is not a disease or disability for which service connection may be granted. Nonetheless, the Board finds that an addendum opinion is needed to clarify whether obesity was an "intermediate step" between the Veteran's service-connected disability and the Veteran's diabetes mellitus. See VAOPGCPREC 1-2017. The Veteran was afforded a VA examination in October 2019. The examiner opined that the Veteran's obesity was not caused by his service-connected conditions explaining that eating habits are more important than exercising for causing weight gain. However, the examiner cited research the found "obesity is generally caused by eating too much and moving too little. Additionally, the examiner explained that obesity and an inactive lifestyle are two of the common causes of type 2 diabetes. The Veteran has consistently reported that his inactive lifestyle is the result of his service-connected conditions. The evidence indicates that the Veteran's musculoskeletal disabilities may have aggravated his obesity and/or diabetes. Therefore, an addendum opinion is necessary to adequately address obesity as an intermediary step resulting in the Veteran's diabetes mellitus. See Walsh v. Wilkie, 32 Vet. App. 300 (2020) (holding that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis). 4. Entitlement to service connection for sleep apnea is remanded. The Board finds the October 2020 VA opinion as to the nature and etiology of the Veteran's sleep apnea is inadequate. While the opinion thoroughly addressed direct service connection, the wrong standard was requested in the Board's August 2020 remand directives with regard to aggravation. The Board notes that per a recent decision from the Court of Appeals for Veterans Claims, "any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence" constitutes aggravation. Ward v. Wilkie (16-2157, 17-1204). As such, the examiner is advised that his or her inquiry is not limited to the definition of aggravation as a permanent worsening of the condition beyond its natural progression. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his right knee disability, diabetes and sleep apnea. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records. 2. After completing the development in paragraph 1, schedule the Veteran for an appropriate VA examination to determine the severity of his right knee disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must address whether the Veteran has: a) an unrepaired or failed repair of complete ligament tear causing persistent instability, b) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability; c) a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair; or d) a diagnosed condition involving the patellofemoral complex with recurrent instability without surgical repair. The examiner must reconcile the medical evidence of record with these findings. Specifically, the examiner must address 2008 VA and private treatment records which indicate the Veteran underwent surgical repair of a complete tear of the proximal medial collateral ligament. The examiner should also address whether the Veteran is prescribed a brace and/or an assistive device (e.g. cane(s), crutch(es), walker). 3. Forward the entire claims file in electronic records to the October 2020 VA examiner for addendum opinions as to the nature and etiology of the Veteran's right ankle disability, diabetes and sleep apnea. If that examiner is unavailable, then to another qualified examiner. RIGHT ANKLE The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right ankle disability was aggravated by the Veteran's service-connected right knee disability. The examiner is advised that his or her inquiry is not limited to the definition of aggravation as a permanent worsening of the condition beyond its natural progression. Rather, the examiner should consider whether there has been "any incremental increase in disability or any additional impairment of earning capacity in the nonservice-connected disabilities resulting from the service-connected conditions regardless of its permanence." DIABETES AND SLEEP APNEA The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's diabetes and/or sleep apnea were caused or aggravated by the Veteran's service-connected disabilities to include his right knee and back. In providing an opinion, the examiner should address whether the Veteran's obesity was an intermediate step between his current diabetes and his service-connected musculoskeletal disabilities. In so doing, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the service-connected knee and back disabilities caused the Veteran to become obese or gain weight; or aggravated his obesity. If so, the examiner should provide an opinion as to whether the obesity, or the aggravation of obesity, as a result of the service-connected disability was a substantial factor in causing the Veteran's diabetes and/or sleep apnea. He or she should also provide an opinion as to whether the Veteran's diabetes and/or sleep apnea would not have occurred but for the obesity caused or aggravated by his service-connected disability. The examiner is advised that his or her inquiry is not limited to the definition of aggravation as a permanent worsening of the condition beyond its natural progression. Rather, the examiner should consider whether there has been "any incremental increase in disability or any additional impairment of earning capacity in the nonservice-connected disabilities resulting from the service-connected conditions regardless of its permanence." The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 4. After ensuring compliance with these objectives, the AOJ should readjudicate the remanded claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.