Citation Nr: 22012111 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-54 543 DATE: March 2, 2022 REMANDED Entitlement to service connection for a left knee condition is remanded. REASONS FOR REMAND The Veteran had active service with the US Marine Corps from August 1996 to August 2000. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. The Veteran contends he is entitled to service connection for his left knee condition due to his service, to include as secondary to his service-connected disabilities. The Veteran submitted a statement in July 2021 in which he reported a boot camp injury to the left knee. His left knee condition worsened due to carrying heavy equipment in service and overcompensating for his service-connected right knee disability. He reported a limited ability to exercise due to pain and his medications causing excessive weight gain. In July 2021, the Veteran testified to complaining about issues with both knees in service. He first noted left knee pain after a fall in boot camp. His left knee pain was intermittent but got worse over time. He indicated that while in service he complained that one knee hurt more than the other, which might have been misunderstood as only the right knee hurting. He testified that people did not generally seek treatment unless the pain was unbearable. He tried to deal with the pain, occasional knee popping, weakness, and loss of balance on his own as much as possible. However, he maintained reporting bilateral knee issues in service and that he sought treatment for both knees after his separation from service. Currently, he experiences pain, occasional knee popping, weakness, loss of balance, and restricted range of motion in the left knee. His doctors are treating his pain but tell him it is a permanent condition. In addition to his fall in boot camp, the Veteran contends that his flat feet and right knee disability contribute to his left knee condition. In compensating for his flat feet and right knee disabilities, his left knee condition was exacerbated. The Veteran is currently service connected for depression associated with a lumbar strain, lumbar strain, right foot pes planus with strain, left shoulder impingement syndrome, right patellofemoral pain syndrome, tinnitus, and temporomandibular joint disability. In a March 2016 VA examination, he was diagnosed with a left knee sprain. In October 2016, Doctor E.P. (MD, PhD), the Veteran's private treating provider, diagnosed him with bilateral knee pain and post-traumatic arthritis superimposed on pre-existing patellofemoral pain syndrome. The Veteran's February 2000 service treatment record showed a follow up on a left knee injury; however, the overall assessment found a soft tissue injury to the right knee. In May 2000, he reported swollen or painful joints. His clinical evaluation was normal except for left shoulder impingement, chronic lower back pain, scars, and knee pain. The record showed two separate notes for knee pain. One note indicated right knee pain, and the second note indicated occasional knee pain PFS. In a March 2016 VA examination, the Veteran was diagnosed with right patellofemoral pain syndrome and left knee sprain. The examiner opined his left knee condition was less likely than not proximately due to or the result of the Veteran's service-connected right patellofemoral pain syndrome. The examiner noted reviewing the claims file. There was no objective medical evidence in the medical literature establishing a direct cause and effect relationship between right knee patellofemoral pain syndrome as a cause or result of a left knee sprain. The March 2016 VA examiner failed to address the February 2000 and May 2000 service treatment notes on knee pain. The examiner also failed to provide an opinion regarding direct service connection. Furthermore, the Veteran raised his service-connected flat foot condition as well as obesity as additional theories of entitlement for his left knee condition. Obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOPGCPREC 1-2017 (January 6, 2017). The VA General Counsel opinion stated that obesity was not a disease for service connection purposes and weight gain itself is not a disability within the meaning of 38 C.F.R. § 3.310 or an in-service event. Nonetheless, obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. To grant service connection, the adjudicator would have to resolve the following issues: whether a service-connected disability caused the Veteran to become obese; if so, whether the obesity as a result of the service connected disability was a substantial factor in causing the current disability for which the Veteran seeks service connection; and whether the current disability for which the Veteran seeks service connection would not have occurred but for the obesity caused by the service connected disability. In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the United States Court of Appeals for Veterans Claims (the Court) held that the General Counsel Precedent Opinion 1-2017 not only applies when a service-connected disability causes obesity, but also when a service-connected disability aggravates obesity. When raised by the record, the Board must consider whether obesity was caused or aggravated by a service-connected disability consistent with 38 C.F.R. § 3.310. Therefore, another VA opinion is necessary to determine the nature and etiology of his claimed left knee condition to include as secondary to his service-connected conditions. The matters are REMANDED for the following action: 1. Obtain and associate any outstanding VA and non-VA treatment records with the claims file. 2. Thereafter, schedule the Veteran for a VA examination with an appropriate clinician regarding the nature and etiology of his left knee condition. The examiner is asked to opine on the following: If it is at least as likely as not that his left knee condition had its onset in service or was otherwise etiologically related to any event or circumstance of his service. If it is at least as likely as not that his current left knee condition was proximately due to or aggravated beyond its natural progression by his service-connected depression associated with a lumbar strain, a lumbar strain, right foot pes planus with strain, left shoulder impingement syndrome, right patellofemoral pain syndrome, tinnitus, and temporomandibular joint disability. If aggravation is found, the examiner should state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record as well as the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. If it is at least as likely as not that the Veteran's service-connected depression associated with a lumbar strain, a lumbar strain, right foot pes planus with strain, left shoulder impingement syndrome, right patellofemoral pain syndrome, tinnitus, and temporomandibular joint disability caused him to become obese. If the examiner finds that his service-connected disability or disabilities caused him to become obese, the clinician should opine whether it is at least as likely as not that obesity was a substantial factor in causing his left knee condition. If the examiner finds that obesity was a substantial factor in causing his left knee condition, the examiner should opine whether it is at least as likely as not that the Veteran would not have a left knee condition if he were not obese. The examiner should opine whether it is at least as likely as not that his obesity was aggravated by his service-connected condition(s). If the examiner finds that obesity was aggravated by his service-connected disability or disabilities, the examiner should opine whether it is at least as likely as not that the aggravation of the obesity by the service-connected condition(s) was a substantial factor in causing his left knee condition. If the examiner finds that aggravation of his obesity by his service-connected disability or disabilities was a substantial factor in causing his left knee condition, the examiner should opine whether it is at least as likely as not that the Veteran would not have a left knee condition but for the obesity aggravated by his service-connected condition(s). The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. 3. After completion of the above and any additional development deemed necessary to determine the nature and extent of any employment during the pendency of this appeal, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.