Citation Nr: 22018958 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 16-51 331 DATE: March 30, 2022 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 a low back disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 2, 2021 is remanded. REASONS FOR REMAND The Veteran had active service in the Army from March to May 1981. These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) St. Petersburg, Florida. This case was most recently before the Board in August 2021, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. In addition, in a November 2021 rating decision, the AOJ granted service connection for an unspecified anxiety disorder and assigned an initial rating; and granted entitlement to a TDIU effective November 2, 2021. To date, the Veteran has not submitted a notice of disagreement with this decision. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The Board has recharacterized the claim for entitlement to a TDIU to reflect the grant of such benefits beginning on November 2, 2021. 1. Service Connection Claims As noted above, the appeal was most recently remanded in August 2021 for VA examinations with opinions for the knees and back, including regarding a theory of service connection based on obesity as an intermediate step. The remanded claim of service connection for a psychiatric disorder was granted in a November 2021 rating decision and that issue is no longer before the Board. Examinations for the knees and back were obtained in October 2021 as well as numerous opinions addressing direct and secondary service connection based on the Veteran's service-connected disabilities. With respect to obesity, the examiner did not opine on the relationship between obesity and the back disability. The examiner linked the knee disabilities to morbid obesity but found that the obesity was not caused by service-connected hammertoes. However, the examiner did not address whether obesity was aggravated by service-connected disability. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. See D'Aries, 22 Vet. App. at 105; see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As such, remand is again required to obtain additional VA addendum opinions that comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). 2. Entitlement to a TDIU As to entitlement to a TDIU prior to November 2, 2021, the Veteran does not meet the schedular criteria for eligibility for the entire period on appeal. As the adjudication of the knee and back claims may impact his combined rating, the Board will defer adjudication of the issue at this time. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Request an addendum from the October 2021 knee and back examiner. The examiner is asked to address the following: (a) Is it at least as likely as not that obesity was (i) caused or (ii) aggravated by hammertoes with scars, including inactivity and lack of mobility? If the examiner finds that obesity was caused or aggravated by hammertoes with scars, please address the following: (b) Is it at least as likely as not that obesity was a substantial factor in causing a back disability? If so, is it at least as likely as not that a back disability would not have occurred but for obesity? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resorting to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Mariah N. Sim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alhinnawi 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.