Citation Nr: 21009785 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 08-34 714 DATE: February 23, 2021 REMANDED Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1972 to August 1976 in the United States Marine Corps. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2007 and May 2010 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The claims were remanded in August 2012 and September 2019. The Board notes that actions requested in the prior remands have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). 1. Entitlement to service connection for a left foot disability is remanded. The Board will address the issues of entitlement to service connection for a left foot, right foot, and left knee disability together, as the remand stems from the same legal and factual basis. The Board regrets the need for further remand, especially given the lengthy period of the Veteran’s appeals process, but given that the current evidence does not warrant a grant and in order to provide the Veteran with the best opportunity to receive a positive outcome in his case, a remand is warranted. The Board notes that the July 2010 private nexus statement provided by a medical doctor implied that the Veteran’s knee disabilities resulted in increased weight. The Veteran’s medical records show that the Veteran was counseled regarding the risks of obesity. Although obesity is not a “disability” for the purposes of secondary service connection under 38 C.F.R. § 3.310, 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). See VAOPGCPREC 1-2017. Specifically, a grant is warranted (1) if a service-connected disability caused the veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if this subsequent disability would not have occurred but for obesity. Therefore, the Board finds that a nexus opinion, with examination if required, is necessary to determine whether the Veteran’s increased weight is related to his right knee disability and whether his increased weight caused or aggravated his left foot, right foot, or left knee disability. 2. Entitlement to service connection for a right foot disability is remanded. Please see the analysis in Section 1, above. 3. Entitlement to service connection for a left knee disability is remanded. Please see the analysis in Section 1, above. 4. Entitlement to a TDIU due to service-connected disabilities is remanded. The Veteran’s claims of service connection affect the disabilities considered under his TDIU claim; therefore, the service connection and TDIU claims are inextricably intertwined. Thus, a decision by the Board on the claim for TDIU would, at this point, be premature. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician. Following a complete review of the evidence of record and with consideration of the Veteran’s lay statements, assuming the statements are credible for the limited purpose of the request herein, the medical professional is requested to provide the following opinion: a.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s weight gain or obesity was caused or aggravated by the Veteran’s service-connected right knee disability? b.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s left foot, right foot, and/or left knee disability was caused or aggravated by the Veteran’s weight gain or obesity? An opinion regarding aggravation, as well as causation, must be included for the opinion as a whole to be considered adequate. A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. If an additional examination is required for the examiner to sufficiently address the above questions, then a new examination should be afforded. 2. After undertaking the development above and any additional development deemed necessary, the Veteran’s claims should be readjudicated. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board. C.B. Iwanowski Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patricia Veresink, 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.