Citation Nr: 22051155 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 16-44 657 DATE: September 8, 2022 REMANDED Entitlement to service connection for a back disability, to include spinal generalized spondylosis with lumbar anterolisthesis and intervertebral disc syndrome, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from February 1972 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in May 2021 and has been returned to the Board for appellate review. Entitlement to service connection for a back disability, to include spinal generalized spondylosis with lumbar anterolisthesis and intervertebral disc syndrome, is remanded. The Veteran seeks service connection for a back disability. He contends that his back disability began in service and has continued since that time. Alternatively, he highlights that his service-connected knee disabilities have resulted in problems with his back. In a private medical opinion, received August 2017, Dr. B. opined that the Veteran's service-connected knee disabilities caused weight gain, which caused the current back disability. "Obesity may be 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)." G.C. Prec. Op. 1-2017, at 2-3. Entitlement under this theory requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability (caused the veteran to become obese/aggravated the veteran's obesity); (2) if so, whether the (obesity/aggravation of obesity) as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for (obesity caused/obesity aggravated) by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. See Walsh v. Wilkie, 32 Vet. App. 300, 303-304(2020), analyzing G.C. Prec. Op. 1-2017. The Board remanded the claim to obtain a VA medical opinion addressing this issue, instructing the RO to schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) for the Veteran's low back disability. The RO scheduled an in-person examination in January 2021, which the Veteran declined to attend because of covid concerns. The RO then denied the Veteran's claim on the basis of the evidence of record. However, the Board's May 2021 remand makes clear that if an in-person examination is not feasible, a telehealth interview or review of the record will suffice. Accordingly, the Board finds that the RO has not substantially complied with the Board's remand instructions and another remand is required. 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)). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) for the Veteran's low back disability. The VA examiner should opine whether any identified back disorder began in service, is related to service, or is caused or aggravated by the Veteran's service-connected bilateral knee disabilities. The examiner should also address (1) whether a service-connected disability (caused the Veteran to become obese/aggravated the veteran's obesity); (2) if so, whether the (obesity/aggravation of obesity) as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for (obesity caused/obesity aggravated) by the service-connected disability. In considering these questions, the examiner must address the private medical opinion, received August 2017, wherein Dr. B. opined that the Veteran's service-connected knee disabilities caused weight gain, which caused the current back disability. (Continued on the next page) A rationale must be provided for all opinions provided. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.