Citation Nr: 21006745 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 16-44 494 DATE: February 5, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a right knee disorder is remanded. Entitlement to service connection for pulmonary embolism is remanded. REASONS FOR REMAND The Veteran served on active duty for training in the United States Air Force from September 1981 to December 1981; and on active duty as a commissioned officer and air crewman in the Air National Guard from May 1985 to September 1990, May 14, 1991 to May 31, 1991, August 2002 to October 2002, March 2003 to March 2004, August 2004 to June 2005, October 2005 to February 2006, March 2006 to September 2006, October 2006 to August 2008, December 2008 to March 2009, and August 2010 to November 2010 including service in Afghanistan. In a December 2018 decision, the Board denied the Veteran’s claim for an increased rating for a right knee disorder. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court), and the Court issued a memorandum decision that set aside the Board’s December 2018 denial. The issue has been returned to the Board. In April 2018, the Veteran filed a claim for entitlement to service connection for a pulmonary embolism. The regional office (RO) issued a May 2018 rating decision denying entitlement to service connection, and the Veteran perfected a timely appeal. 1. Entitlement to a rating in excess of 20 percent for a right knee disorder is remanded. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that when a Veteran complains of flare-ups, the examiner must “state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, they affect functional impairment.” 29 Vet. App. at 10-11. If feasible, functional loss due to flare-ups should be expressed in terms of the degree of additional range-of-motion loss. If the examiner cannot express functional loss in this manner without resorting to speculation, he or she “must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered,” e.g., whether that is due to the limitation of knowledge in the medical community at large, or due to insufficient information in the instant case. Here, the Court found the April 2016 VA examination to be inadequate because the examiner did not adequately explain why functional loss due to flare-ups could not be expressed in terms of range of motion loss. Therefore, the Court concluded that an adequate examination needed to be obtained. Such should be scheduled on remand. 2. Entitlement to service connection for pulmonary embolism is remanded. The Veteran was diagnosed with a pulmonary embolism in 2013. A May 2018 VA examiner noted two primary risk factors for the embolism—obesity and immobilization. The examiner explained that the immobilization occurred during a long plane flight, and that the Veteran’s obesity and being sedentary were at least as likely as not the causes for his pulmonary embolism. In a May 2019 letter, the Veteran’s attorney argued that service-connection should be granted for the Veteran’s pulmonary embolism as secondary to his service-connected musculoskeletal disabilities (which include left knee arthritis, right knee arthritis and chondromalacia with a history of a meniscal tear, and hammertoes of the right foot), with obesity considered as an “intermediary step.” In other words, the Veteran’s attorney asserts that the Veteran’s service-connected musculoskeletal disabilities prevent him from exercising, which has caused the Veteran to gain weight and develop the embolism. The Board notes that, although obesity itself is not considered a disability for VA purposes, when obesity has been caused by a service-connected condition, and subsequently causes another disability, obesity may be considered an “intermediate step” for establishing service connection on a secondary basis. See VAOPGCPREC 1-2017 (January 6, 2017). Furthermore, in Walsh v. Wilkie, 32 Vet. App. 300, the United States Court of Appeals for Veterans Claims (Court) held that when addressing the question of obesity as an intermediate factor, VA must evaluate whether a service-connected disability caused or aggravated the Veteran’s obesity, just as it would when analyzing secondary service connection under 38 C.F.R. § 3.310. On remand, a medical opinion should be obtained addressing this question. The Veteran’s attorney has also alleged that the Veteran’s pulmonary embolism may be directly related to hazardous exposure from burn pits while serving in Iraq and Afghanistan, JP-4 exposure, exposure to trichloroethylene (TCE), and exposure to particulate matter. In a May 2019 letter, the Veteran’s attorney referenced online research in support of the claim. On remand, an opinion should be obtained addressing whether a direct relationship may exist between the Veteran’s pulmonary embolism and such exposures. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 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. To the extent possible, the examiner should report or estimate functional loss during flare-ups and after repetitive use in terms of the degree of additional loss of range of-motion. If the examiner cannot express functional loss in this manner without resorting to speculation, he or she must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered, e.g., whether that is due to the limitation of knowledge in the medical community at large, or due to insufficient information in the instant case. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. 2. Obtain a medical opinion addressing the etiology of the Veteran’s pulmonary embolism. The claims file should be sent to, and reviewed by a clinician with appropriate expertise. After review of the record, the clinician should respond to the following: a) Is it at least as likely as not that the Veteran’s pulmonary embolism is a manifestation of an undiagnosed illness, or a medically unexplained chronic multisymptom illness? The term “medically unexplained chronic multisymptom illness” means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. b) Is it at least as likely as not that the Veteran’s pulmonary embolism had onset in, or is otherwise directly related to in-service hazardous exposures, to include from burn pits while serving in Iraq and Afghanistan, JP-4 exposure, exposure to trichloroethylene (TCE), and exposure to particulate matter? Please consider the research referenced and submitted by the Veteran’s attorney in May 2019. c) Notwithstanding the answers to the questions above, please assist in determining whether it is at least as likely as not that obesity served as an “intermediate step” between the Veteran’s service-connected musculoskeletal disabilities and pulmonary embolism, by answering the following: (i) Is it at least as likely as not that the Veteran’s service-connected musculoskeletal disabilities, to specifically include left knee arthritis, right knee arthritis and chondromalacia with a history of a meniscal tear, and hammertoes of the right foot, caused the Veteran to become obese or aggravated the Veteran’s obesity? (ii) If so, was the obesity that resulted from or was aggravated by the service-connected disabilities a substantial factor in causing his pulmonary embolism? (iii) Would the pulmonary embolism not have occurred, but for the obesity caused by or aggravated by the service-connected disabilities? All opinions should be supported by a medical explanation or rationale. If it is the opinion of the reviewing clinician that answers to the questions above cannot be provided without an in-person or virtual examination or interview, such should be scheduled. 3. After undertaking any other development deemed necessary, readjudicate the issues on appeal. If the benefits sought remain denied, in whole or in part, send the Veteran and his attorney a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thompson, 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.