Citation Nr: 1307486 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 09-41 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include as secondary to bilateral pes planus with plantar fasciitis and heel spur syndrome. 2. Entitlement to service connection for a left ankle disorder, to include as secondary to bilateral pes planus with plantar fasciitis and heel spur syndrome. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1992 to September 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for left ankle and right knee disorders. The Veteran timely appealed those issues. This case was initially before the Board in March 2011, when the Board denied service connection for a right ankle disorder. The Board considers that matter final and will no longer address that issue in this decision. In that decision, the Board also remanded the left ankle and right knee claims for further development. That development having been completed, the case has been returned to the Board for further appellate review at this time. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In the prior remand, the Board asked for a VA addendum to be obtained with respect to the right knee and left ankle claims; such an addendum was rendered in April 2011. First, the Board asked for the VA examiner to "identify any right knee and/or left ankle disabilities, specifically addressing the x-ray findings" from December 2007 and January 2007 respectively, which demonstrated possible arthritic conditions of the affected joints. The examiner did not address any potential diagnoses in his opinion and failed to render an opinion as to whether there were any disabilities, including arthritic conditions, of the right knee or left ankle. Moreover, the examiner was asked to opine whether any disabilities found were related to or aggravated by the Veteran's military service and/or bilateral feet disabilities. With regards to the Veteran's right knee, he addressed military treatment for his left knee, something irrelevant to whether his right knee condition was related to service. He further failed to address whether the Veteran's right knee disorder was related to or aggravated by his bilateral feet disabilities wholly and entirely. Regarding the left ankle disorder, he alluded that there was left ankle degenerative joint disease (DJD) demonstrated in the x-rays, but that there was no medical evidence that plantar fasciitis would lead to an ankle condition; no rationale was provided for that opinion; that opinion additionally does not discuss the April 2008 treatment record noting that such arthritic spurring was "probably due to [the Veteran's] pes planus." The Board notes that the opinion also fails to address any relationship to military service, bilateral pes planus, or bilateral heel spur syndrome; the VA examiner additionally failed to address the aggravation element of secondary service connection, as requested. The Board finds the April 2011 addendum to be inadequate. Because of the deficiencies noted above, the Board has no choice but to remand these issues again in order to obtain a new VA examination to assure compliance with the Board's previous remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from Tampa VA Medical Center, Orlando VA Outpatient Clinic, or any other VA medical facility that may have treated the Veteran, since December 2008 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for any of his claimed right knee and left ankle disorders, which are not already of record. After securing the necessary release forms, attempt to obtain and associate those identified treatment records with the claims file. If those identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA examination with an appropriate physician in order to determine the nature and etiology of any right knee disorder. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted, including x-rays, and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should state all of the right knee disorders found, including any arthritic condition thereof. The examiner should discuss the December 2007 x-ray of record as well as the January 2008 treatment record showing a diagnosis of early osteoarthritis of the knees, as well as the normal right knee examination in the October 2008 VA examination. The examiner should address whether any right knee disorder found, including any arthritic condition thereof, more likely, less likely or at least as likely as not (50 percent or greater probability) is related to the Veteran's military service. The examiner should discuss the lack of any complaints of, treatment for, or diagnosis of any right knee disorder during service, the normal right knee noted on the September 2000 separation examination, as well as any lay evidence regarding injury during service or continuity of symptomatology since service. The examiner should also indicate whether any right knee disorder more likely, less likely or at least as likely as not is caused by his service-connected bilateral pes planus with plantar fasciitis and heel spur syndrome disability. The examiner should discuss the April 2008 treatment noted with stated that his knee pain was probably related to his pes planus. The examiner should finally opine whether the Veteran's right knee disorder is more likely, less likely or at least as likely as not aggravated (e.g. made permanently worse beyond the normal progression of that disease) by his service-connected bilateral pes planus with plantar fasciitis and heel spur syndrome disability. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Schedule the Veteran for a VA examination in order to determine the nature and etiology of any left ankle disorder. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted, including x-rays, and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should state all of the left ankle disorders found, including any arthritic condition thereof. The examiner should discuss the January 2007 x-ray of record, the January 2008 treatment record showing that his left ankle pain is due to medial malleolar spurring, as well as the normal left ankle examination in the October 2008 VA examination. The examiner should address whether any left ankle disorder found, including any arthritic condition thereof, more likely, less likely or at least as likely as not (50 percent or greater probability) is related to the Veteran's military service. The examiner should discuss the lack of any complaints of, treatment for, or diagnosis of any left ankle disorder during service, the normal left ankle noted on the September 2000 separation examination, as well as any lay evidence regarding injury during service or continuity of symptomatology since service. The examiner should also indicate whether any left ankle disorder more likely, less likely or at least as likely as not is caused by his service-connected bilateral pes planus with plantar fasciitis and heel spur syndrome disability. The examiner should specifically address the April 2008 treatment record noting that such arthritic spurring is probably due to his pes planus. The examiner should finally opine whether the Veteran's left ankle disorder is more likely, less likely or at least as likely as not aggravated (e.g. made permanently worse beyond the normal progression of that disease) by his service-connected bilateral pes planus with plantar fasciitis and heel spur syndrome disability. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Following the above development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for left ankle and right knee disorders, both to include as secondary to bilateral pes planus with plantar fasciitis and heel spur syndrome. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).