Citation Nr: 21006920 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-41 102A DATE: February 5, 2021 ORDER Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for a right hip disorder is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to a rating in excess of 30 percent for residuals of right total knee arthroplasty (TKA) from August 1, 2017 is denied. REMANDED Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. The Veteran does not have a low back, right hip or left knee disorder, including arthritis, that was incurred in or caused by service, had its onset within one year of discharge from service, or is caused or aggravated by a service-connected disability. 2. Since August 1, 2017, the Veteran’s service-connected right TKA residuals have been productive of intermediate degrees of residual weakness, pain or limitation of motion; chronic residuals consisting of severe, painful motion or weakness in the affected extremity, ankylosis, limitation of extension to 30 degrees or greater, or impairment of the tibia and fibula is not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back, right hip and left knee disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. Since August 1, 2017, the criteria for a rating in excess of 30 percent for the Veteran’s service-connected right TKA residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1971 to March 1974. These matters are before the Board of Veterans’ Appeals (Board) on appeal from August 2013 (low back and right hip) and April 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office\Agency of Original Jurisdiction (RO\AOJ). In November 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. He waived RO consideration of any additional evidence added to his file. This appeal was previously before the Board in July 2018 when the matters of service connection for disorders of the low back, right hip and left knee, diabetes and entitlement to an increased rating for right TKA following the one year 100 percent rating under Code 5055 were remanded for additional development. In relevant part, the July 2018 Board decision also granted a 100 percent rating under Code 5055 for right TKA for one year following a one-month period of convalescence per 38 C.F.R. § 4.30. In a May 2020 rating decision, the AOJ implemented the July 2018 Board decision and, following the 100 percent rating under Code 5055 for right TKA for one year, assigned a 30 percent rating for right TKA from August 1, 2017. After review of the development accomplished by the AOJ, the Board concludes there has been substantial compliance with the July 2018 Board remand with respect to the matters of service connection for disorders of the low back, right hip and left knee and an evaluation in excess of 30 percent for right TKA from August 1, 2017 (the diabetes mellitus service connection claim is addressed in the Remand portion of the decision, below) and no further development is necessary as to these claims. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) (“It is substantial compliance, not absolute compliance, that is required” under Stegall v. West) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). Certain chronic diseases (including arthritis) may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within a specified period of time post-service (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). For the purpose of evaluating lay evidence, to include a veteran’s statements about the circumstances of his service, competent evidence is “limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptomatology of an injury or illness, a lay person is “not competent to opine as to medical etiology or render medical opinions.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s service treatment records (STRs) are silent as to complaints of or treatment for the low back, right hip and/or left knee. These records show he reported no history of low back, right hip or left knee symptoms and his spine and musculoskeletal structure were normal on clinical evaluation for enlistment in September 1971 and for Sea Duty/Medical Board in September 1973. These records include an August 1972 treatment report which notes the Veteran reported his leg had “been going out from under” for the last 2 or 3 weeks and an August 1973 treatment report which notes the Veteran reported having trouble with his feet since being “hit by barrel on deck” in June 1972. A May 1978 Physical Evaluation Board Review Record notes the Veteran’s right foot is more severe than the left, “with altered gait resulting in right hip pain.” Records in connection with the Veteran’s May 1978 Coast Guard Physical Evaluation Board, including multiple narrative summaries and hearing transcript, show the Veteran recalled his orthopedic symptoms began after injury in June 1972 when “two 55-gallon drums detached unto [his] legs.” These record include testimony by a physician who felt that the Veteran’s knee and hip pain were possibly the result of “an abnormal gait, which can produce pain all the way up to and including your back” or they were “referred pain” (“If his foot pain is severe enough, I presume he could have pain that would in fact be referred clear up to his hip.”) It was also explained that the Veteran had started walking differently while wearing a cast and continued to walk differently after the cast was removed, having “trained himself” to not walk the way he should. The physician noted hip tenderness on palpation and “marked laxity of the medial collateral ligament of both knees.” A March 2000 VA examination report notes the Veteran’s history of his “knees bucking, and problems going up and down stairs” after getting out of a cast due to his 1972 injury. After service, the Veteran owned a bar from 1976 to 1982, briefly worked as a truck driver in 1983 and as a draft salesman for a beer company in 1984 and 1985. He reported performing supervisory work during this time and “did not actually drive the truck or handle heavy casks.” Between 1986 and 1991, the Veteran reported working “as a heavy equipment operator” and “was having increased difficulties with complaints and pain in the right leg and hip, as well as the left knee to ankle. He then owned a dance company for 5 years.” The Veteran reported right knee discomfort which radiated up into the buttock and lower back and “occasional” left knee discomfort. After examination and review of X-ray studies, the diagnoses included possible torn left knee medial meniscus; early degenerative arthrosis, medial compartment, both knees; and low back discomfort with radiating discomfort into right lower extremity, but no evidence of radiculitis, radiculopathy, or significant disc disease (by X-ray only.) The examiner noted lower back discomfort may be related to some facet joint arthritis, which cannot be excluded on AP and lateral films. Objective findings regarding the hips were normal on radiographic and physical examination. VA treatment records include May 2011 X-ray studies showing mild retrolisthesis at L5-L1 and small multilevel osteophytes. Private treatment records include a June 2013 report of Evaluation for Wheelchair/Power Mobility Device which include a diagnosis of “severe OA [osteoarthritis] in both hips.” An August 2013 VA back examination report shows a diagnosis of degenerative disease of the lumbar spine. The Veteran reported having “years of low back pain.” After interview and examination of the Veteran and review of the record, including the Physical Evaluation Board proceedings, the examiner opined the Veteran’s low back disorder was less likely than not related to an in-service injury, event or illness because “[n]o supporting medical evidence nor mechanism can account for the Veteran’s low back condition due to, because of, or in relationship to either the Veteran’s current right foot or right knee condition.” The Veteran underwent VA knee examination in February 2014. After interview and examination of the Veteran and review of the record, the examiner opined that the Veteran’s left knee condition is less likely than not related to in-service injury, event or illness. The examiner explained that the “Veteran has end stage arthritis equally affecting both knees according to viewed X-rays of 6/6/12. This osteoarthritis is due to age, activity, obesity and is symmetrical.” During his November 2017 Board hearing, the Veteran testified that his left knee has been hurting since he was walking in the cast in 1972. May 2019 VA examination reports include diagnoses of degenerative disease of the lumbar spine and osteoarthritis of both knees and hips. After interview and examination of the Veteran and review of the claims file, the examiner opined that the Veteran’s low back, right hip and left knee disorders are unrelated to service or caused or aggravated by his service-connected disabilities. Regarding the low back, the examiner explained that there was no evidence the Veteran’s low back disorder, now known as degenerative arthritis and which “became evident in 2011 or 37 years following his discharge” was incurred in or caused by service. Regarding the right hip, the examiner explained the Veteran’s “hip disorder is in fact, a bilateral hip disorder indicating that right as well as left hip is similarly affected indicating that this is caused through natural aging and activity and unrelated to activities caused by or incurred in service.” Regarding the left knee, after a detailed discussion of the Physical Evaluation Board records, the examiner noted the finding of “laxity of both knee is in no way troubling to the examiner as this relates only to the relative flexibility and play in the knee and does not have any bearing on the further development of osteoarthritis of the knee, the patient’s current condition. Further the patient’s bilateral osteoarthritis is simply that, a condition noting reduced joint space and both knees in symmetrical fashion therefore related entirely based on age, activity, and obesity and less likely to specific injury or complaint only on one side.” The examiner opined that it is less likely as not the Veteran’s right hip, left knee or low back disorder is caused or aggravated beyond its natural progression by his service-connected disabilities. The examiner explained that the Veteran’s “initial development of back pain, now characterized as degenerative arthritis of the lumbar spine, has slowly evolved through its natural course without any aggravation” and “both right and left hip as well as left and right knee are symmetrical conditions which speak to indicate that these have progressed through natural aging and or ‘wear and tear’ related phenomena of age and activity rather than any service-connected disability to include the bilateral calcaneal navicular bars and/or the ipsilateral right knee end stage osteoarthritis.” The examiner further explained that “[b]oth right and left knee have the identical disorder, osteoarthritis, now end-stage. Since both conditions are symmetrical, one can easily conclude that the condition is unrelated to specific event, trauma or cast which was applied to only one side, that being the right side while in service.” Upon consideration of the above, although the Veteran’s STRs are silent as to low back, right hip and/or left knee symptoms, these records show he was “hit by a barrel on deck” in 1972 and reported his leg had “been going out from under.” In addition, records in connection with subsequent, May 1978, Physical Evaluation Board proceedings note low back and right hip pain and left knee laxity in connection with his in-service injury. As such, the record shows the Veteran sustained injury in service. The record also shows he has been diagnosed with degenerative disease of the lumbar spine and osteoarthritis of the left knee and right hip. In addition, the Veteran has argued his current low back, right hip and left knee disorders are secondary to his service-connected bilateral foot and right knee disabilities. See VA Form 21-526EZ, Fully Developed Claim, dated in August 2011, claiming service connection for low back and right hip disorders secondary to service-connected foot and right knee disabilities, and September 2013, claiming service connection for a left knee disorder secondary to the service-connected right knee disability. Accordingly, the remaining question for resolution is whether the Veteran’s current low back, right hip and/or left knee disorders are etiologically related to his service or were caused or aggravated by his service-connected foot and right knee disabilities. It is not in dispute that the Veteran has degenerative disease of the lumbar spine and osteoarthritis of the left knee and right hip. However, service connection for his degenerative disease of the lumbar spine and osteoarthritis of the left knee and right hip on the basis that such became manifest in service and persisted is not warranted. As left knee and low back arthritis was initially shown in March 2000 (when the examiner noted lower back discomfort may be related to some facet joint arthritis) and right hip arthritis was initially shown in June 2013 (26 and 39 years, respectively, after the Veteran’s March 1974 separation from service), the preponderance of the evidence is against a finding that arthritis may be presumed to have manifested in service or within one year of service separation, or that service connection is warranted on the basis of continuity of symptomatology. Therefore, service connection on a chronic disease presumptive basis (under 38 U.S.C. § 1112; 38 C.F.R. § 3.309(a)) is not warranted. While service connection may be shown by continuity of symptomatology post service, the record shows the Veteran’s earliest post-service complaint, after the 1978 Physical Evaluation Board proceedings, of low back and right hip pain is not until his September 1999 initial claim for service connection for these disorders and March 2000, when he reported left knee cramping and discomfort. In addition, to the extent that the Veteran attempts to support his claims of service connection for low back, right hip and left knee disorder by his more recent accounts of continuity of symptoms since service, the Board finds such accounts to be inconsistent with contemporaneous clinical data, and not credible. His spine and musculoskeletal structure were normal on clinical evaluation for Sea Duty/Medical Board in September 1973. As described in the March 2000 VA examination, the Veteran’s post-service employment during the 26 years prior to his September 1999 claim included working “as a heavy equipment operator” between 1986 and 1991, when he “was having increased difficulties” and pain in the lower extremities and right hip. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); see also Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding a declarant’s intent to speak the truth, the witness’s statement may lack credibility because of faulty memory due to passage of time). Thus, given the inconsistency with respect to compliants of low back, right hip and left knee pain and the fact that the earliest clinical evidence of arthritis of these joints was not until many years after service, the preponderance of the evidence is against a finding of continuity as to these disorders. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). What remains then is the question of whether, in the absence of a showing of onset in service and continuity since, the Veteran’s low back, right hip and/or left knee disorder may otherwise be related to his service or his service-connected disabilities, including his bilateral foot and right knee disabilities. Whether there is a nexus between his current low back, right hip and/or left knee disorder and his in-service injury (absent evidence of continuity) or his service-connected disabilities, is a medical question that requires medical expertise, which the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, the Veteran’s opinions that his current low back, right hip and/or left knee disorder is related to injuries sustained during service or as a result of his service-connected disabilities are merely lay speculations and are not competent evidence. They are without probative value in this matter. The only medical opinions as to whether there is a nexus between the Veteran’s current low back, right hip and/or left knee disorder and his in-service injury or his service-connected bilateral foot and right knee disabilities are the opinions contained in the August 2013, February 2014 and May 2019 VA examination reports and they are against the Veteran’s claims. These opinions warrant substantial probative weight because they incorporate statements made by the Veteran throughout the pendency of his claims as well as his STRs and records from the Physical Evaluation Board proceedings and explain why the complaints and findings shown do not support a nexus between any currently diagnosed low back, right hip and/or left knee disorder and his service or service-connected bilateral foot and right knee disabilities. These opinions, to specifically include the May 2019 opinion, are based on detailed examinations and thorough reviews of the record and include rationales that point to factual data, including the Veteran’s self-reports provided in clinical settings. These opinions are probative evidence as to the claims of service connection for disorders of the low back, right hip and left knee and, in the absence of probative evidence to the contrary, are persuasive. The preponderance of the evidence is against the claims of service connection for a low back, right hip and left knee disorders, including arthritis; therefore, the benefit of the doubt rule does not apply and the appeal as to these matters must be denied. Gilbert v. Derwinski, 1 Vet. App. at 54-56. Increased Rating Disability evaluations are determined by application of criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. As noted above, after implementation of the July 2018 Board decision granting a 100 percent rating under Code 5055 for right TKA for one year following a one month period of convalescence per 38 C.F.R. § 4.30, the RO assigned the minimum 30 percent rating following prosthetic replacement of the knee joint from August 1, 2017 under 38 C.F.R. § 4.71a, Code 5055. Under Code 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. (The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30). Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Codes 5256, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Code 5055. The Board notes that the normal range of motion of the knee is to 0 degrees (full extension) to 140 degrees (full flexion). 38 C.F.R. § 4.71a, Plate II. Under Code 5256, ankylosis of the knee in a favorable angle in full extension, or in slight flexion between 0 and 10 degrees warrants a 30 percent evaluation. Ankylosis of the knee in flexion between 10 and 20 degrees warrants a 40 percent evaluation, while ankylosis in flexion between 20 and 45 degrees warrants a 50 percent evaluation. Extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent evaluation. 38 C.F.R. § 4.71a. Under Code 5261, extension limited to 5 degrees warrants a noncompensable rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. Id. Under Code 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with a slight knee or ankle disability, a 20 percent rating is warranted for moderate knee or ankle disability, a 30 percent rating is warranted for marked knee or ankle disability and a 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion that requires a brace. Id. During his November 2017 Board hearing, the Veteran testified that his right knee range of motion is to 90 degrees before the onset of pain. On May 2019 VA knee examination the Veteran’s right knee range of motion was zero to 110 degrees flexion and 110 to zero degrees extension, no pain was noted on examination, and there was no addition functional loss after 3 repetitions. Although there was fatigue and lack of endurance with repeated use over time, there was no additional loss in the right knee range of motion. There was also no right knee functional limitation during flare-ups. Right knee muscle strength was 5/5 (normal) and there was no ankylosis, recurrent subluxation or lateral instability. The examiner noted right knee effusion following surgery and anterior instability at 1+ (0-5 millimeters). The examiner noted the Veteran had no tibial and/or fibular impairment. The Veteran regularly used a wheelchair and a cane when walking about in the house. The Veteran’s treatment records during the appeal period since August 1, 2017 are consistent with the symptoms and functional impairment shown in the VA examination report. The Board finds that the preponderance of the evidence is against the claim for entitlement to a disability rating in excess of 30 percent from August 1, 2017. Because the Veteran does not exhibit “chronic residuals consisting of severe painful motion or weakness” in his right knee, a 60 percent disability evaluation is not warranted. As the examiner concluded that the Veteran experiences intermediate degrees of weakness, pain, or limitation of motion, the Veteran’s right knee disability is to be rated by analogy to Codes 5256, 5261, and/or 5262, as appropriate, with an assigned minimum rating of 30 percent. Because the Veteran’s right knee does not exhibit ankylosis, Code 5256 does not apply; because the Veteran’s right knee limitation of extension is not severe enough to warrant a higher disability rating than 30 percent, a higher rating under Code 5261 is not warranted; and because the record does not contain evidence of impairment of the tibia and fibula, a higher rating under Code 5265 is not warranted. Therefore, the preponderance of the evidence is against a finding that a disability evaluation in excess of 30 percent for the Veteran’s right knee is warranted at any time during the appeal period since August 1, 2017. The Board has considered whether there is any other basis for granting further increased and/or additional ratings but has found none. Notably, the Veteran has argued that embolism and deep vein thrombosis were complications of his right TKA. See, e.g., November 2017 Board hearing transcript. However, in the May 2019 medical opinion, the examiner opined that the Veteran’s pulmonary embolism and deep venous thrombosis, which were discovered in January 2017, were less likely as not caused or aggravated by his right TKA. The examiner explained that patients having knee replacement surgery are “at risk for having DVT/PE [deep venous thrombosis/pulmonary embolism] two to ten days following surgery and remain at risk for 3 months. For this reason, the American Academy of Orthopedic Surgeon’s (AAOS) offered treatment strategies for the prevention of these consequences within that timeframe. The Veteran’s DVT/PE occurred 3 times beyond this risk period – 9 months. As a result of this information, it can be concluded that the patient’s DVT/PE was unrelated to the right knee surgery and more likely than not caused by immobility, and stasis.” This opinion is probative evidence as to the claim that embolism and deep vein thrombosis were complications of the Veteran’s right TKA and, in the absence of probative evidence to the contrary, is persuasive. Accordingly, a separate rating for embolism and deep vein thrombosis is not warranted. Accordingly, the assigned 30 percent rating appropriately compensates the Veteran for the extent of his functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination. See 38 C.F.R. §§ 4.40 and 4.45, DeLuca, supra. Here, there is no probative evidence to support a finding that symptoms of pain, fatigue, weakness, lack of endurance, and/or incoordination have been so disabling, to include on repeated use and during flare-ups, to support assignment of a rating in excess of 30 percent under any applicable Diagnostic Code predicated on limitation of motion. Because the preponderance of the evidence is against the claim, the “benefit-of-the-doubt” doctrine is not applicable; and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND As noted in the July 2018 Board remand, the Veteran contends that his weight has increased because of his service-connected bilateral foot and right knee disabilities and has caused diabetes mellitus. See, e.g., November 2017 hearing transcript. In addition, a December 2017 letter from his private physician includes the comment that the Veteran’s diabetes mellitus is “likely to be connected to morbid obesity.” The May 2019 VA examiner opined that the Veteran’s service-connected disabilities were not a substantial factor in the Veteran’s development of diabetes due to obesity. The examiner explained that “[o]ther factors, which include the types of foods as well as the quantity, genetic profile (as discussed) and family history are all equally important.” However, while the explanation of rationale identifies these general factors in the development of obesity, the impact of such factors specific to the Veteran’s development of obesity is not provided. The examiner also opined that, as the Veteran was already obese in service and his diabetes was not diagnosed until August 2006, his obesity is less likely an intermediate step in the development of his diabetes. Since the May 2019 opinion, the Court, in Walsh v. Wilkie, 32 Vet. App. 300, 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. The record shows the Veteran’s weight measured 260 pounds in service in 1974 and his VA treatment records show his weight measured 383.5 pounds in August 2018. The May 2019 examiner did not provide an opinion as to whether the Veteran’s obesity has been aggravated by his service-connected disabilities. Accordingly, a supplemental opinion is needed in order to adjudicate the Veteran’s claim of service connection for diabetes mellitus, to include as secondary to service-connected disabilities, and remand to obtain an additional opinion is necessary. The matters are REMANDED for the following action: 1. Secure for the record copies of complete updated clinical records (any not already of record) of all VA and/or private treatment the Veteran has received for his diabetes mellitus. 2. After the development in paragraph 1 has been completed to the extent possible, please obtain an addendum medical opinion. Based on review of the record (and, if necessary and deemed feasible, interview and examination of the Veteran, and using telehealth techniques if possible), the clinician should respond to the following: a.) Please explain whether the service-connected bilateral calcaneal navicular bars and/or right knee end stage osteoarthritis (now right TKA) (or any other service-connected disability) caused the Veteran to become obese/gain weight. b.) Please explain whether the service-connected bilateral calcaneal navicular bars and/or right knee end stage osteoarthritis (now right TKA) (or any other service-connected disability) aggravated the Veteran’s obesity/weight gain. c.) If, and only if, the Veteran’s obesity is deemed to have been caused or aggravated by his service-connected disabilities, please explain whether the obesity/weight gain was a substantial factor in causing diabetes mellitus. d.) Please explain whether diabetes mellitus would not have occurred but for the obesity/weight gain caused or aggravated by the service-connected disabilities. In responding to this question, the examiner should consider as necessary the findings of obesity in the service and post-service medical records, the statement by the Veteran’s spouse, his November 2017 hearing transcript, the December 2017 statement from his private physician and the “other factors” in the development of obesity noted by the examiner in the May 2019 medical opinion. In this regard, it is noted that obesity is not a disease or disability for VA benefits purposes; however, it may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis. To determine whether any weight gain or obesity is an “intermediate step” between either any or all of the Veteran’s service-connected disabilities and diabetes mellitus, the examiner should fully answer the above questions. A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kshama Hughes 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.