Citation Nr: 21008848 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 07-35 811 DATE: February 18, 2021 REMANDED Entitlement to service connection for a left ankle disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from October 1977 to July 1998. These matters are before the Board of Veterans’ Appeals (Board) on appeal from August 2006 (increased rating for right knee), December 2014 (erectile dysfunction and left ankle), and September 2018 (increased rating for left knee) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the United States Court of Appeals for Veterans Claims (Court) vacated the Board’s June 2018 decision. These matters were most recently before the Board in August 2019 when they were remanded for additional development, to include examinations. Additionally, in August 2016, the Department of Veterans Affairs (VA) notified the Veteran that his legacy (paper) claims file was lost. VA made all reasonable efforts to locate the legacy claims file. In September 2016, VA notified the Veteran of a formal finding that his legacy claims file was unavailable for review. Although some relevant documents are likely missing from the claims file, in the absence of any further avenues to search for such documents, the Board must proceed with adjudication of the claims. In that regard, the legal standard for proving a claim is not lowered when record are missing; rather, the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 4 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In an August 2020 rating decision, the RO granted the Veteran’s claim for service connection for a lumbar disability. As this grant represents a full grant of the benefit sought, this issue is no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). 1. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected disabilities, is remanded. This issue was denied in a June 2018 Board decision, which was vacated by the Court in April 2019. The Court found that the September 2014 examiner did not sufficiently address left ankle flare-ups in finding that he did not have a disability. This matter was then remanded by the Board in August 2019 for an examination. Specifically, the Board directed the examiner to opine on whether the left ankle disability was due to his service, to include in-service ankle sprains in September 1989, July 1996, and October 1997. The Veteran was scheduled for and underwent an examination for his left ankle in December 2019. The examiner determined that his disability was not due to service and that the his body habitus was a factor. A July 2020 addendum also concluded that it was not due to service. As the December 2019 examiner reported that the Veteran’s body habitus was potentially a factor for his left ankle strain, the Board will report his weight at enlistment and current weight. His weight at enlistment was 127 pounds. His weight in April 2019 was 218 pounds. Additionally, the Veteran has reported that his service-connected knees are unstable, flare-up, and frequently give out. VA’s GC issued a precedential opinion on how the issue of obesity is to be assessed. One of the primary holdings of the opinion is that obesity is not a disability for purposes of VA benefits; hence, it cannot be the subject of service connection. VAOPGCPREC No. 1-2017 (Jan. 6, 2017); see also Marcelino v. Shulkin, 29 Vet. App. 155 (2018). The GC recognized further, however, that obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). As such, VA may service connect the current disability on a secondary basis under 38 C.F.R. § 3.310(a) to include aggravation of a non-service-connected disability. See Walsh v. Wilkie, 32 Vet. App. 300, 303-04 (2020) (explaining service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability). To determine whether obesity is an intermediate step between a service-connected disability and the development of a current disability that may be service connected on a secondary basis, the following criteria must all be satisfied: 1) the service-connected disability must have caused the Veteran to become obese; 2) the obesity, as a result of the service-connected disability must have been a substantial factor in causing the potential secondary disability; and 3) the potential secondary disability would not have occurred but for the obesity caused by the service-connected disability. Additionally, he has asserted that his left ankle disability is due to his service-connected knee disabilities. This contention was not addressed in the most examinations. As such, the Board finds that an addendum or examination is warranted as such would be useful for a full and fair adjudication of this issue to discuss whether his left ankle disability is due his service-connected disabilities to include as due to his increased weight caused by service-connected disabilities. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is remanded. This issue was denied in a June 2018 Board decision, which was vacated by the Court in April 2019. The Court concluded the September 2014 examiner did not address whether his disability was secondary to his service-connected anxiety or his medication for his service-connected arthritis. The Board subsequently remanded this claim in August 2019 for an examination. Specifically, the Board directed the examiner to opine on whether the Veteran’s erectile dysfunction was secondary to his service-connected anxiety or medications taken for his service-connected arthritis. For his erectile dysfunction, the examiner found in December 2019 that it would be speculative to determine whether his erectile dysfunction was aggravated by his anxiety disorder as it appeared controlled without medication. The examiner determined it was not proximately due to his medication for his service-connected arthritis. Additionally, it was less likely than not due to service. However, since the examination, he has asserted in an August 2020 that his erectile dysfunction is worsening due to his service-connected sleep apnea, lower back, and bilateral knee disabilities. As noted above, a more recent, August 2020, rating decision granted service connection for the Veteran’s low back and assigned an initial 10 percent rating, effective November 4, 2013. As such, the Board finds that new addendum or examination is necessary to address the Veteran’s contentions. 3. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. 4. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. The Court vacated the Board’s June 2018 decision that denied an increased rating for the Veteran’s right knee finding that the October 2017 examiner did not opine on the effect of flare-ups. The August 2019 Board remand directed the examiner to assess the severity of his right knee disability and to elicit information regarding the Veteran’s flare-ups. Over the course of this appeal, the Veteran participated in examinations for his knees in April 2019, November 2019, and December 2019. The April 2019 examination reported the effects of his flare-ups, but found that while he reported a history of instability, that his joint stability was normal, and there was not a history of recurrent subluxation or lateral instability. The Veteran has asserted his instability was insufficiently addressed. The November 2019 examiner reported that the Veteran did not have flare-ups or functional loss. The December 2019 examiner also reported that the Veteran did not have flare-ups. Since these VA examinations, in May 2020, the Veteran has asserted that his symptoms were not accurately reported at the 2019 examinations. Specifically, he explains that he has bilateral flare-ups and instability which require rest, a cane, and causes him to miss work. He also asserts instability with both knees collapsing while walking, stair climbing, and standing for both short and longer periods. As such, the Board finds that an examination is warranted to address the Veteran’s flare-ups and instability. Additionally, the Board finds that it would be useful to request a retrospective opinion to better ascertain the Veteran’s disability picture during the period on appeal. As such, a retrospective examination should be undertaken to assess the severity of the Veteran’s service-connected right knee condition throughout the period on appeal. Allday v. Brown, 7 Vet. App. 517, 527 (1995); Jones v. Shinseki, 23 Vet. App. 382, 392-94 (2010). These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing #1, request an addendum or schedule the Veteran for an examination for his left ankle if necessary. The examiner is to respond to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left ankle was caused by a disease or injury in service? (b.) If no to question (a), whether the obesity/weight gain as a result of the service-connected disabilities was a substantial factor in causing his left ankle disability; (c.) Whether his left ankle disability would not have occurred but for the obesity/weight gain caused by the service-connected disabilities. (d.) If no to the above questions (b)-(c), is it at least as likely as not (50 percent or greater probability) that his disability was either 1) proximately due to OR 2) aggravated by any service-connected disability, to include the left and/or right knees. In arriving at the opinion on the left ankle disability and weight gain/obesity, inform the examiner that all lay evidence must be considered, including any articles submitted by the Veteran and his statements. Inform the examiner further that, for VA purposes, obesity is not a disease or disability for which service connection may be granted, but 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 his left ankle disability, the examiner is to fully answer the above questions to assist the Board with adjudication of these matters. 3. After completing #1, request an addendum or schedule the Veteran for an examination for his erectile dysfunction if necessary.   The examiner is to respond to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s disability was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (50 percent or greater probability) that his disability was either 1) proximately due to OR 2) aggravated by any service-connected disability, to include his sleep apnea, low back, and/or knees. The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. 4. After completing #1, schedule an examination to assess the current nature and severity of his service-connected left and right knee disabilities. Send the file to an appropriate examiner and ask the clinician to review the claims file. Ensure the examiner has access to the claims file, to include a copy of this Remand. Range of motion (active motion, passive motion, and pain with weight-bearing and without weight-bearing) should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she must clearly explain why that is so. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected knee disabilities, and how he characterizes the additional functional loss during a flare-up and with repeated use over time. If the Veteran describes experiencing flare ups, identify the: (a.) frequency; (b.) duration; (c.) precipitating factors; and (d.) alleviating factors. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up, range of motion for flexion is additionally limited to 30 degrees. Please explain why or why not. 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 and with repeated use over time based on the other evidence of record and the Veteran’s statements. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. **Additionally, the examiner should also provide a retrospective opinion, as best as can be ascertained from the Veteran’s self-reports as well as from clinical records and other evidence, for the October 2017 examination. For the examination, the examiner is asked to provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time.** As above, when providing the retrospective opinion, if it is not possible to provide a specific measurement based on direct review of the record, 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 the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Regarding the above directives requesting opinions, inform EACH of the above examiners that a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Morales, 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.