Case 22026241

KRISTIN HADDOCK · 2022 · Case ID: 22026241

MIXED

Summary

The veteran, who served from July 1982 to June 1986, appeals the denial of increased ratings for his service-connected right and left knee disabilities and the denial of service connection for his right and left ankle disabilities. The ankle claims were asserted as secondary to his service-connected knee and left foot disabilities, with the veteran arguing that his obesity, caused by the knee and foot conditions, led to his ankle problems. The Board reviewed extensive medical evidence, including multiple VA examination reports and the veteran's testimony from two hearings. While VA examiners initially opined that the ankle conditions were not related to service or were due to obesity unrelated to service, later opinions acknowledged that obesity could aggravate existing ankle symptoms. The Board found the evidence in approximate balance regarding the etiology of the veteran's obesity, ultimately resolving doubt in his favor and finding that his obesity was caused by his service-connected knee and foot conditions. Consequently, the Board granted secondary service connection for the right and left ankle disabilities, finding obesity to be an intermediate step. However, the Board remanded the claims for increased ratings for the right and left knee disabilities, as the veteran's testimony indicated a worsening of his conditions since the last examination, necessitating a new VA examination.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

10-49 558

Full Decision Text

Citation Nr: 22026241
Decision Date: 05/04/22 Archive Date: 05/04/22

DOCKET NO. 10-49 558
DATE: May 4, 2022

ORDER

Entitlement to service connection for right ankle osteoarthritis and strain, secondary to right and left knee disabilities and a left foot disability, is granted.

REMANDED

Entitlement to a rating greater than 10 percent for osteoarthritis, right knee, is remanded.

Entitlement to a rating greater than 10 percent for osteoarthritis, left knee, is remanded.

FINDINGS OF FACT

1. The Veteran gained a significant amount of weight as a result of not being able to exercise due to his service-connected right and left knee disabilities and left foot disability.

2. Obesity was a substantial factor in causing the Veteran's right and left ankle disabilities.

3. The evidence is in approximate balance as to whether the Veteran's right and left ankle disabilities, diagnosed as strain and osteoarthritis, would have occurred but for the obesity caused by the service-connected right and left knee disabilities and left foot disability.

CONCLUSIONS OF LAW

1. The criteria for service connection for right ankle strain and osteoarthritis, as secondary to service-connected disability, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for service connection for left ankle strain and osteoarthritis, as secondary to service-connected disability, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1982 to June 1986.

This appeal arises from May 2009 and April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office. The matter was initially before the Board in May 2014, at which time the Board remanded the issues on appeal for additional development. Thereafter, in a September 2015 decision, the Board denied ratings greater than 10 percent for right and left knee disabilities and remanded the issue of entitlement to service connection for the ankles. The Veteran appealed the Board's September 2015 denial for increased ratings for the right and left knees to the Court of Appeals for Veterans Claims (Court). In January 2017, the parties filed a Joint Motion for Partial Remand that the Court granted vacating the September 2015 rating decision with respect to the denial of increased ratings for the right and left knee disabilities. In September 2017 and in April 2019, the Board remanded the issues for increased ratings for the right and left knee disabilities as well as entitlement to service connection for right and left ankle disabilities to the Agency of Original Jurisdiction (AOJ) for additional development. The matter is once again before the Board.

The Veteran testified at a hearing before Veterans Law Judge (VLJ) Scharnberger in November 2013 concerning the issues on appeal. The Veteran then subsequently testified at another hearing before VLJ Haddock in November 2021 with respect to the same issues. Transcripts of both hearings are of record.

As the issues currently on appeal have been the subject of two different hearings before two different VLJs, the appeal must be decided by a panel of three VLJs. 38 C.F.R. §§ 20.106, 20.604. During the November 2021 hearing, the presiding VLJ explained that the Veteran had a right to have a third hearing before the additional VLJ who would participate in the panel deciding his appeal. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). The Veteran and his attorney waived his right to a third hearing. Id. As such, the Board will proceed to adjudicate the current appeal on the merits. These issues will therefore be addressed by the three-judge panel below, without an additional hearing.

Service Connection for Right and Left Ankle Disabilities

The Veteran contends that his right and left ankle disabilities are secondary to his service-connected right and left knee disabilities and left foot disability. Specifically, he asserts that his service-connected right and left knee disabilities and left foot disability have impaired his ability to exercise and have contributed to significant weight gain which caused his ankle disabilities. He testified in November 2021 that he used to lead an active lifestyle which included running and backpacking.

Establishing
2011). The Veteran and his attorney waived his right to a third hearing. Id. As such, the Board will proceed to adjudicate the current appeal on the merits. These issues will therefore be addressed by the three-judge panel below, without an additional hearing.

Service Connection for Right and Left Ankle Disabilities

Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists and (2) the current disability was either (a) proximately due to or the result of, or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).

VA's Office of General Counsel (OGC) has held that a claim for secondary service connection may be based on obesity as an "intermediate step" between a service-connected disability and a current disability under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017. 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. Id. In this case, the determination requires consideration of the following: (1) whether the service-connected right and left knee disabilities and left foot disability caused the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disabilities was a substantial factor in causing the right and left ankle disabilities; and (3) whether the right and left ankle disabilities would not have occurred but for obesity caused by the service-connected right and left knee disabilities. Id; see also VAOPGCPREC 6-2003 and 19-1997.

Pertinent evidence in this case includes a February 2010 VA examination report which notes that the Veteran had morbid obesity and it contains the examiner's opinion that it was as likely as not that morbid obesity, along with genetic predisposition, led to certain conditions including early arthritis in the Veteran's lower ankles with chronic strain. There is also a November 2014 Disability Benefits Questionnaire wherein the examiner noted that the Veteran had a right ankle disability, but not left ankle disability, which he diagnosed as right retrocalcaneal bursitis. He opined that this disability was most likely attributable to the Veteran's underlying deconditioning and overuse. He added in an October 2015 addendum that the Veteran's right ankle condition was not aggravated beyond its natural progression by his service-connected bilateral knee or left foot disabilities. In addition, there is a January 2016 VA medical opinion and an August 2016 addendum opinion wherein the examiner opined that the Veteran's right and left ankle disabilities are not the result of his knee or left foot disabilities, either directly or by aggravation, but they are due to other factors including chronic obesity.

VA contract examiners in March 2018 and November 2019 addressed the Veteran's right ankle disability by reporting that while obesity as a primary cause of ankle sprain or other ankle degenerative conditions was unlikely (less than 50% probability), orthopedic research literature confirms that existing ankle symptoms may be aggravated by severe obesity. They also acknowledged that a lack of exercise is recognized as one factor in maintaining ideal body weight. They went on to state that there was no substantial or compelling evidence that the Veteran's right ankle disability would not have occurred or would not have been aggravated beyond its natural progression without the obesity caused by other lower extremity conditions in the knees or feet. In other words, they stated that but for the Veteran's obesity, he would not have had an ankle disability. The November 2019 examiner also opined that the Veteran's ankle disabilities were less likely than not related to his active service.

It is evident from the medical evidence outlined above that while a direct cause and effect relationship between the Veteran's service-connected right and left knee and left foot disabilities and right and left ankle disabilities has been negated both on a direct basis and by way of aggravation, such evidence supports obesity as an "intermediate step" between the Veteran's service-connected right and left knee and left foot disabilities and right and left ankle disabilities. In other words, the evidence shows that the Veteran's obesity was a substantial factor in causing his right and left ankle disabilities either directly or by aggravation and that such disabilities would not have occurred but for the obesity. VAOP
opined that the Veteran's ankle disabilities were less likely than not related to his active service.

The remaining question is whether the cause of the Veteran's obesity is his service-connected right and left knee and left foot disabilities. In this regard, VA treatment records in May 2009 note that the Veteran was obese and that he did not do much exercise due to time considerations. These records show that he spent 2 12 hours on the train each way going to and from work and that he did not get home until 8pm. They also show that he was instructed to exercise and lose weight and that he declined a referral to the "MOVE" program due to his work schedule. An April 2012 record shows that he was morbidly obese, walked with a cane, and led a sedentary lifestyle. It also shows that he was not interested in losing weight or in performing any exercises including non-weight bearing exercises. However, these records also show that the Veteran complained of right and left knee pain. Moreover, he explained in July 2010 that he had a 2 12 hour commute to work each way and that repetitive movement causes his legs to swell which prevents him from making the commute. As a result, he said that he had to make a choice between going to work or exercising. In addition, as noted, the VA contract examiners in October 2018 and November 2019 acknowledged that the Veteran's obesity was caused by "other lower extremity conditions in the knees or feet".

As for the notation by the March 2018 and November 2019 examiners that obesity can be controlled in all cases by proper dietary practices and restrictions on intake and that various exercises can be performed without using the lower extremities, the Veteran addressed this point in July 2010. In this regard, he said that although VA determined that he could exercise "in other ways", VA was at a loss for what exercises he could do that does not require him to move his legs. He said that he is unable to bike, walk long distances, or move or stand for long periods. He also said that swimming is not an option for him.

At the very least, the evidence is in approximate balance regarding the etiology of the Veteran's obesity. Thus, by resolving reasonable doubt in his favor, the Board finds that the Veteran's obesity was caused by his service-connected right and left knee disabilities and left foot disability as they prevented him from exercising and following his prior active lifestyle. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021) (en banc).

In sum, the Board finds that the Veteran's right and left ankle disabilities are proximately related to his obesity, which, in turn, was caused by his service-connected right and left knee disabilities and left foot disability, and his right and left ankle disabilities would not have occurred but for his obesity. Accordingly, his secondary service connection claims for right and left ankle disabilities diagnosed as osteoarthritis and strain through the "intermediate step" of obesity are granted. 38 C.F.R. § 3.310; VAOPGCPREC 1-2017.

REASONS FOR REMAND

The Veteran asserts that his right and left knee disabilities warrant higher than 10 percent ratings and he testified at the November 2021 Board hearing that his knee disabilities have worsened since he was last examined by VA in November 2019.

Evidence of a change in the condition or allegation of worsening of the condition renders an examination inadequate for rating purposes. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); see also Proscelle v. Derwinski, 2 Vet. App. 629 (1992). In consideration of the Veteran's hearing testimony regarding a worsening of his right and left knee disabilities, a remand is warranted for a new VA examination. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159.

The matters are REMANDED for the
knee disabilities have worsened since he was last examined by VA in November 2019.

The matters are REMANDED for the following action:

1. Schedule a VA examination with an appropriate examiner to determine the current severity of the Veteran's right and left knee disabilities. The evidentiary record, including a copy of this remand, must be made available to, and reviewed by, the examiner. A complete history should be elicited from the Veteran, and the examiner should conduct any tests and studies deemed necessary. The examiner must provide all information required for rating purposes.

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2. Thereafter, readjudicate the increased rating claims for the right and left knees. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board.

Kristin Haddock

Veterans Law Judge

Board of Veterans' Appeals

Robert C. Scharnberger

Veterans Law Judge

Board of Veterans' Appeals

Evan M. Deichert

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Shawkey, 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.

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