Citation Nr: 22012016 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 11-16 280 DATE: March 2, 2022 REMANDED Service connection for a back disorder. Service connection for a right foot disorder. Service connection for a left foot disorder. A total disability rating based on individual unemployability (TDIU). REASONS FOR REMAND The Veteran served on active duty from April 1989 to August 1990. The case is on appeal from a December 2010 rating decision. These issues were previously remanded by the Board in August 2014 and February 2017. In August 2018, the Board issued a decision denying service connection for a bilateral foot disability, denying service connection for a back disability, and denying entitlement to TDIU. The Veteran appealed the Board's August 2018 decision to the Court of Appeals for Veterans Claims (Court) which issued a decision in March 2020 ordering that part of the Board's August 2018 decision that addressed a bilateral foot condition, back disability, and TDIU be set aside and remanded. Upon return from the Court, the Board remanded these issues in October 2020 and, most recently, in July 2021. 1. Service connection for a back disorder. 2. Service connection for a right foot disorder. 3. Service connection for a left foot disorder. Issues 1-3 are remanded as there was not substantial compliance with the Board's prior remand directives. The Board last remanded the service connection claims in July 2021 to obtain an adequate VA opinion addressing the complex medical questions at issue in this case. These medical questions specifically included whether the Veteran's obesity was an intermediate step between the service-connected ankle disabilities and the claimed bilateral foot or thoracolumbar spine conditions. The Board's remand set forth three sequential questions for the examiner to address. First, the Board asked the examiner to address whether the service-connected ankle disabilities caused the Veteran to become obese or aggravate her obesity. If yes, the Board asked the examiner to then opine whether the service-connected obesity was a substantial factor in the causation or aggravation of obesity. If so, the Board asked the examiner to finally opine whether the claimed bilateral foot or thoracolumbar spine conditions would have occurred but for the obesity. Upon remand, a VA examiner addressed the Veteran's case in December 2021. In relevant part, the examiner opined that "[t]he claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service connected condition." With regard to obesity, the examiner gave the following rationale: Obesity is a complex disease involving an excessive amount of body fat. Obesity isn't just a cosmetic concern. It is a medical problem that increases your risk of other diseases and health problems, such as heart disease, diabetes, high blood pressure and certain cancers. Usually, obesity results from a combination of inherited factors, combined with the environment and personal diet and exercise choices. Obesity occurs when you take in more calories than you burn through exercise and normal daily activities. Your body stores these excess calories as fat. Most Americans' diets are too high in calories often from fast food and high-calorie beverages. mayoclinic.org The Board finds that this opinion is essentially nonresponsive to the three questions asked in the Board's remand. The examiner gave general information concerning the nature of obesity, but did not expressly answer the questions asked. And, a negative rationale cannot be reasonably inferred from the information cited. In fact, the examiner cited some supportive information where the examiner observed that "[o]besity occurs when you take in more calories than you burn through exercise and normal daily activities." This is essentially the Veteran's contention, i.e., that she cannot burn more calories than she takes in because she cannot exercise due to the service-connected disabilities. The December 2021 VA examiner's opinion does not apply the facts of the Veteran's case to answer the questions posed. Hence, it is not substantially compliant with the Board's prior remand. Because there has not been substantial compliance with the Board's previous remand directives, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. TDIU is remanded. The Board continues to find that the issue of entitlement to a TDIU must be remanded as it is inextricably intertwined with the Veteran's claims for service connection for bilateral foot and thoracolumbar spine disabilities. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician regarding the Veteran's back and foot disorders. An in-person examination of the Veteran should be arranged if determined necessary by the appointed examiner. The examiner is asked to provide a response to the following: (a.) Was the current condition at least as likely as not caused by (i.e., proximately due to) a different medical condition? (b.) Has the condition at least as likely as not been aggravated (i.e., worsened beyond its natural progression) by a different medical condition? If it is determined that the condition was either caused or aggravated by a different medical condition, the examiner is asked to identify the primary medical condition. In answering questions (a) and (b), the examiner must affirmatively respond to each of the following questions: 1. Did a service-connected disability(ies) cause or contribute to the Veteran becoming obese? 2. If so, was the obesity a substantial factor in causing the back or foot disability? 3. If yes, would the back or foot disability not have occurred but for obesity? In answering all questions, the examiner should articulate the reasons underpinning every conclusion. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.