Citation Nr: 21039689 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-44 398 DATE: July 1, 2021 REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for residuals status post pulmonary embolism is remanded. Entitlement to service connection for diabetes mellitus type 2 is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Navy from September 1968 to September 1972. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in November 2018. The Veteran contends that service connection is warranted for the issues on appeal. Specifically, he contends that his service-connected interstitial lung disease with chronic obstructive pulmonary disease (COPD) caused his pulmonary embolism. In addition, the Veteran contends that his interstitial lung disease caused a decrease in mobility which caused weight gain which in turn caused diabetes mellitus and problems with his hips and knees. The Board notes that VAOPGCPREC 1-2017 recognizes 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). Under 38 C.F.R. § 3.310 (a), disability which is proximately due to or the result of a service-connected disease or injury is service connected. "Proximate cause" is defined as a "cause that directly produces an event and without which the event would not have occurred." VAOPGCPREC 6-2003 (quoting Black's Law Dictionary 213 (7th ed. 1999)). When there are potentially multiple causes of harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. Shyface v. Sec'y of Health & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999). In support of his claim, the Veteran submitted an October 2012 statement from his primary care physician, Dr. Beacom, which states, [Veteran] has many lung problems and was exposed to asbestos in the Navy. He suffers from severe COPD, recurrent bronchitis, chronic cough, [and] pulmonary embolism. He has poor mobility secondary to above and has consequently gained weight and developed Type II Diabetes and arthritis. It is with a high degree of medical certainty that many of his problems and secondary disability are from severe lung restriction and with reasonable medical certainty that his lung problems exist from asbestos exposure while in the Navy. The Veteran underwent VA examination in May 2013 at which time he reported that he gained weight in 2008 after he quit smoking; that he was a truck driver and would eat due to "boredom;" and that he gained approximately 100 pounds from 2008 to 2013. The examiner opined that the Veteran's pulmonary embolism, to include blood clots, was less likely as not incurred in or caused by asbestos exposure that occurred during service in the Navy. The examiner noted that the Veteran had multiple respiratory condition; COPD, pulmonary embolism, and restrictive lung disease which were predominantly responsible for the limitation in pulmonary function. The examiner also opined that the Veteran's claimed diabetes, weight gain, and arthritis (claimed as hips and knees or right hip strain) were less likely as not due to his claimed myriad of lung issues. The examiner explained that the Veteran was diagnosed with diabetes mellitus two years prior and gained weight after quitting smoking. The examiner noted that the Veteran weighed 380 pounds and that due to his overall weight, body stature, and age, these were more likely the causes of his degenerative joint disease than any lung condition as the causative factors. The Veteran underwent VA examination in September 2019 at which time he was diagnosed as having interstitial lung disease and COPD. The examiner noted that the Veteran's respiratory condition impacted his ability to work causing daily shortness of breath that worsens with increased activity. In August 2020 and September 2020, VA obtained medical opinions regarding the etiologies of the Veteran's pulmonary embolism, diabetes mellitus, hip disorders, and knee disorders. In August 2020, the examiner opined that the Veteran's pulmonary embolism was less likely than not proximately due to or the result of the asbestos exposure or the Veteran's service-connected interstitial fibrosis. The examiner explained that the conditions of pulmonary embolism and asbestos exposure/interstitial fibrosis were not medically related, that the pulmonary embolism was a separate entity entirely from the asbestos exposure/interstitial fibrosis and unrelated to it, and that a thorough review of medical literature failed to demonstrate a causal relationship. The examiner also noted that the pulmonary embolism preceded the interstitial fibrosis by approximately thirteen years and that asbestos exposure did not cause pulmonary embolism per review of current medical literature. Because the VA examiner did not provide an opinion as to whether the Veteran's interstitial lung disease and COPD aggravated residuals status post pulmonary embolism, the opinion is flawed. The examiner also opined that the Veteran's diabetes mellitus was less likely than not to have been proximately due to his restrictive lung disease with obesity as an intermediate step. The examiner noted that the Veteran was diagnosed in 2010 with diabetes and that he was noted at that time to be obese with a weight of 399 pounds. The examiner noted that physical inactivity was a risk factor for diabetes according to Harrison's Manual of Medicine and that the Veteran was noted to have lung disease that caused him to have shortness of breath with activity. The examiner noted that the Veteran was able to ambulate without assistance into his appointment and was not restricted to bed or wheelchair and did not require supplemental oxygen, and that without these severe limitations, it would be difficult to say the Veteran's activity limitations were the sole factor for his weight gain. The examiner noted that the Veteran's morbid obesity would be a factor in causing his diabetes, but that she was not able to connect his obesity solely to his respiratory condition without more significant restrictions impacting his mobility status. The examiner also found that the Veteran did not have any functional loss or impairment reported for his claimed right hip disorder; and only a diagnosis for a left hip arthritis and joint replacement was rendered. The examiner opined that the Veteran's left hip arthritis was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner noted that the Veteran had degenerative arthritis in his left hip and an old fracture on his MRI prior to his hip replacement and that he was noted to be morbidly obese prior to his surgery. The examiner noted that it would be difficult to say if morbid obesity caused the fracture noted on MRI or degenerative changes versus normal wear and tear. The examiner noted that assuming that the obesity was a significant contributing factor, there would not be a direct correlation between the Veteran's respiratory condition as the sole cause for his obesity as without severe limitations, it would be difficult to say whether the Veteran's activity limitations were the sole factor for his weight gain. The examiner found that the Veteran's left hip degenerative joint disease was less likely than not to have been proximately due to his restrictive lung disease with obesity as an intermediate step. The examiner further opined that the Veteran's knee arthritis was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner noted that the Veteran had a diagnosis of arthritis in both knees, that increased weight would increase the load carried by the knee during day to day activities, and that his obesity likely exacerbated his arthritis in his knee. The examiner opined, however, that the Veteran was able to ambulate without assistance into his appointment and was not restricted to bed or wheelchair and did not require supplemental oxygen, and that without these severe limitations, it would be difficult to say the Veteran's activity limitations were the sole factor for his weight gain. The examiner found that the Veteran's knee disabilities were less likely than not to have been proximately due to his restrictive lung disease with obesity as an intermediate step. In May 2021, the Veteran's representative submitted a Written Brief Presentation which included numerous VA articles in support of the Veteran's claims including an article that indicates that obesity increases the chance of developing diabetes, osteoarthritis (wear and tear of joints, especially hips and knees). Because the VA examiner noted in each opinion that without severe limitations, it would be difficult to say the Veteran's activity limitations were the sole factor for his weight gain, the opinions are flawed. The Court of Appeals for Veterans Claims 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. As such, a service-connected disability need not be the sole contributing factor to the development of another disability, but merely have a role in the development thereof. The Board, therefore, finds that an addendum opinion is necessary to assist in determining whether the service-connected respiratory disability caused the Veteran to become obese. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician, preferably a physician with expertise in diagnosing and treating respiratory disorders, regarding whether the Veteran has had chronic residuals of pulmonary embolism during the appeal period (February 2013 to present) which are at least as likely as not proximately due to or aggravated beyond its natural progression by service-connected interstitial lung disease with COPD. Proximate cause" is defined as a "cause that directly produces an event and without which the event would not have occurred. 2. Obtain an addendum opinion from an appropriate clinician, preferably a physician with expertise in diagnosing and treating obesity, regarding whether the Veteran's obesity is an "intermediate step" between the service-connected respiratory disability and his diabetes mellitus and osteoarthritis of the hips and knees. In other words, the examiner should determine: (i) Is the Veteran's obesity at least as likely as not proximately due to or aggravated beyond its natural progression by service-connected interstitial lung disease with COPD due to decreased physical activity? "Proximate cause" is defined as a "cause that directly produces an event and without which the event would not have occurred." (ii) If so, was the Veteran's obesity a substantial factor in causing diabetes mellitus and osteoarthritis of the hips and knees? (iii) If so, would diabetes mellitus and osteoarthritis of the hips and knees not have occurred but for the obesity caused by the service-connected disability? A complete rationale for all opinions must be provided. In arriving at the opinion, inform the examiner that all lay evidence must be considered, including any articles submitted by the Veteran and his statements. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Olson, Patricia 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.