Citation Nr: 21069725 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 13-11 412 DATE: November 19, 2021 REMANDED Entitlement to service connection for a left ankle disability, to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for left foot pes planus, to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for right foot pes planus, to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for a left foot disability, to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for a right foot disability, to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for a right knee disability, to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected disease or injury is remanded. REASONS FOR REMAND The Veteran had active service from January 1981 to December 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Atlanta Regional Office (RO). The Veteran had a hearing before the undersigned in October 2015. A transcript of the hearing has been associated with the Veteran's electronic claims file. During the October 2015 Board hearing, the VLJ clarified the issues on appeal; clarified the concept of service connection claims; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran's claim; enquired as to the existence of potential outstanding records; and held the record open for 60 days to allow for the submission of additional evidence. Thus, the actions of the VLJ comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. In July 2020, following two remand decisions, the Board denied these claims. In August 2021, the United States Court (Court) of Appeals for Veterans Claims vacated the decision of the 2020 Board and remanded the claims for readjudication via an Order and Joint Motion for Partial Remand (JMR). The claims have been returned to the Board for action in compliance with the Order/JMR. Entitlement to service connection for right and left pes planus, foot, ankle, knee and shoulder disabilities, to include as secondary to service-connected disease or injury, is remanded. Remand to the AOJ is required to comply with JMR which notes the Board erred by providing an inadequate statement of reasons or bases in not addressing the reasonably raised theory of service connection of obesity as an intermediate step between Veteran's service-connected disabilities and his claimed disabilities. Citing to both Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) and VA Office of General Counsel (OGC) precedential opinion 1-2017, the parties explained that obesity can be an intermediate step in a service-connection claim. The Court reiterated that although obesity is not a condition for which service connection may be granted, it may qualify as an "intermediate step" between a service-connected disability and another current disability. See Garner v. Tran, 33 Vet. App. 241 (2021); Walsh v. Wilkie, 32 Vet. App. 300 (2020). The Court in Garner observed there are six non-exclusive factors for consideration including: mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; side effects of medication (e.g., weight gain), where the medication is prescribed for service-connected disability; treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and statements by treating physician or medical examiners attributing weight gain or obesity to the service-connected disability. In the current appeal, the parties to the JMR noted (1) the Veteran is service connected for, inter alia, posttraumatic stress disorder (PTSD), lumbar strain, bilateral lower extremity sciatica, and bilateral lower extremity radiculopathy, and (2) there is evidence of record regarding obesity being an intermediary step between these service-connected disabilities and his bilateral ankle, bilateral foot, bilateral pes planus, bilateral knee, and bilateral shoulder disabilities. Specifically, they cited an August 2016 VA weight management evaluation note in which the author indicated that his physical injuries and emotional problems can lead to weight gain. They also cited a May 2020 VA examination wherein the examiner opined that the Veteran's shoulders, knees, flat feet, foot arthritis, and ankle disabilities were caused, in part, by chronic obesity. The 2021 JMR directed the Board to consider whether a VA medical opinion is necessary to adjudicate this theory of service connection with obesity as an intermediate step. McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i). Upon a review of the entire record, with consideration of the JMR directive, we find that such a VA medical opinion is indeed necessary to adjudicate this theory. The matters are REMANDED for the following action: 1. Obtain a medical opinion as to the cause of obesity in general and this veteran in particular. The examiner should explain how a psychiatric disorder or a physical disorder actually causes or aggravates obesity. 2. Obtain an addendum VA medical opinion from an appropriate clinician to determine the nature and etiology of his bilateral pes planus, foot, ankle, knee and shoulder disabilities. Re-examination is at the discretion of the clinician. (a) The clinician should provide an opinion, with supporting rationale, as to whether it is at least as likely as not that the Veteran's current bilateral pes planus, foot, ankle, knee or shoulder disabilities had their inception during active service or are otherwise causally related to an in-service disease or injury. Additionally, is it at least as likely as not that any foot, ankle, knee or shoulder arthritis manifested within a year after discharge from service, or was noted during service with continuity of the same symptomatology since service. (b) If the examiner determines that any current bilateral pes planus, foot, ankle, knee or shoulder disability was not incurred in service, then they should provide an opinion, with supporting rationale, as to whether it is it at least as likely as not that any such current disability is causally related to or aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by the Veteran's service-connected PTSD, lumbar strain, bilateral lower extremity sciatica or bilateral lower extremity radiculopathy and/or weight-gain caused by overeating and lack of exercise due to these conditions, mobility limitations or reduced physical activity due to these conditions, or side effects of medication due to these conditions? (In other words, was obesity an 'intermediate step' between a service-connected disability and one of these service-connected disorders). (c) If any of the Veteran's current bilateral pes planus, foot, ankle, knee or shoulder disabilities is aggravated by his service-connected PTSD, lumbar strain, bilateral lower extremity sciatica or bilateral lower extremity radiculopathy, and/or weight-gain caused by overeating and lack of exercise due to these conditions, mobility limitations or reduced physical activity due to these conditions, or side effects of medication due to these conditions, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner should provide a rationale for any stated opinion and is asked to address the August 2016 VA weight management evaluation note as well as the May 2020 examination reference as they relate to weight gain and obesity. 3. After the above is complete, readjudicate the Veteran's claims. If a complete grant of all benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.