Citation Nr: 1620215 Decision Date: 05/18/16 Archive Date: 05/27/16 DOCKET NO. 10-06 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a bilateral knee condition, to include as secondary to a service-connected bilateral foot and/or bilateral ankle disability. 2. Entitlement to a rating in excess of 10 percent for a bilateral foot disability prior to October 27, 2013, and in excess of 50 percent thereafter. 3. Entitlement to a rating in excess of 10 percent for a right ankle disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1988 to December 1998. These matters come before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In August 2013, the Board remanded this case for additional development. Thereafter, in an October 2013 rating decision, the Appeals Management Center (AMC) increased the Veteran's disability rating for a bilateral foot disability to 50 percent, effective October 27, 2013. Since that grant did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Therefore any future consideration of the Veteran's claim should take into account the existence of the electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the issue on appeal. As noted above, the Board remanded this case in August 2013, in part, in order to provide the Veteran with a VCAA notice letter advising her of the information and evidence needed to substantiate her claim of entitlement to service connection for a bilateral knee condition as secondary to her service-connected bilateral foot and/or ankle disabilities. In August 2013, the AMC sent the Veteran a duty to assist letter, which advised the Veteran of the information and evidence needed to substantiate a claim of entitlement to service on a direct basis. However, this letter did not address the requirements for substantiating a claim of entitlement to service connection on a secondary basis, as directed by the Board's remand instructions. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders and provides that the Secretary of VA has a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). As the requested development was not completed, the claim must again be remanded so that remedial compliance with the Board's August 2013 remand can occur. Remand is also required to obtain outstanding VA treatment records. In this regard, the record suggests that there may be relevant VA treatment records that have not been associated with the claims file but that were reviewed by the AOJ. Specifically, in the November 2013 supplemental statement of the case, the AMC indicated that it had reviewed VA treatment records from the San Diego VA Medical Center (VAMC) dated from November 2010 to October 2013 and from the Indianapolis VAMC dated from December 2009 to July 2013. The only VA treatment records associated with the claims file are from the Indianapolis VAMC dated from June 1999 to June 2000, and a single treatment record from May 2002. There is also a listing of treatment dates from the Indianapolis VAMC showing that the Veteran had numerous treatment visits from June 2000 to May 2002 and from May 2002 to November 2003. None of these records are contained in the claims file. The Board also notes that the Veteran has made numerous statements indicating that she continues to receive VA treatment for her knee, ankle, and foot disabilities. See, e.g., February 2010 VA Form 9; April 2009 Correspondence. However, as noted, there are no VA treatment records in the claims file more recent than May 2002. The Board is required to conduct a de novo review of the Veteran's claim which entails reviewing the same evidence considered by the AOJ. Moreover, it appears that there are extremely relevant VA treatment records that have not yet been associated with the record. Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims folder, are in the constructive possession of the Board and must be considered). Upon remand, the AOJ should obtain and associate with the claims file all outstanding VA treatment records from the San Diego and Indianapolis VAMCs dated from 1999 to the present, including those discussed above that were reviewed by the AOJ, as indicated in the November 2013 supplemental statement of the case. The Board's August 2013 remand also directed the AOJ to provide the Veteran with an examination and obtain an opinion regarding whether the Veteran's bilateral feet and/or bilateral ankle disabilities may have caused or aggravated her bilateral knee condition. The Board specifically directed the examiner to "discuss whether the Veteran's service connected disabilities result in an altered gait that impacts the knees." The Veteran was afforded a VA examination in October 2013. After examining the Veteran and reviewing the claims file, the examiner opined that the Veteran's bilateral knee condition is less likely than not proximately due to or the result of the Veteran's service connection condition because "Veteran's residual foot and ankle strength, alignment, range of motion, and gait pattern are too functional to cause or aggravate a bilateral knee condition." The Board finds the October 2013 opinion inadequate for several reasons. First, the examiner did not provide an adequate rationale for whether the Veteran's bilateral foot and ankle disabilities aggravate the Veteran's bilateral knee condition. The United States Court of Appeals for Veterans Claims has made it clear than an opinion will be considered inadequate unless it addresses both the caused by and aggravation avenues for secondary service-connection. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Moreover, the examiner did not consider, or comment on, whether the Veteran's service-connected disabilities result in an altered gait that impacts the knees, as directed by the Board in its August 2013 remand. The Board finds this particularly problematic in light of service treatment records from as early as August 1997 and VA treatment records from as early as April 2000 documenting that the Veteran walked with a limp. Under these circumstances, the Board finds that the VA opinion is incomplete, and that further medical opinion - based on full review of the record and supported by adequate rationale - is needed to fairly resolve the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Board notes that an opinion as to direct service connection has not been obtained in this case. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Here, the Veteran asserts that she has had knee pain and weakness since service caused by carrying bulk supplies up and down metal ladder wells. See April 2009 Correspondence. The Veteran is competent to report such symptoms. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the existence of a disability even when not corroborated by contemporaneous medical evidence). Moreover, VA treatment records show that the Veteran reported bilateral knee pain as early as February 2000 and that she was diagnosed with mild degenerative joint disease bilaterally as early as April 2000, which was only 16 months after service discharge. As such, because there is an indication that a bilateral knee condition was possibly present during her active duty, coupled with medical evidence of a current bilateral knee condition, a medical opinion regarding direct service connection should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran VCAA compliant notice that addresses the requirements for a claim of entitlement to service connection for a bilateral knee condition on a secondary basis in accordance with 38 C.F.R. § 3.310. This notice must also inform the Veteran of the information and evidence, if any, that she is to provide to VA and the information and evidence, if any, that VA will attempt to obtain on her behalf. A copy of this letter must be included in the file. 2. Obtain and associate with the Veteran's claims file all outstanding VA treatment records documenting treatment for bilateral foot, ankle, and knee conditions, particularly including records from the San Diego and Indianapolis VAMCs reviewed in the November 2013 supplemental statement of the case, as well as any other VA treatment records dated from 1999 to the present. If no such records are located, that fact should be documented in the claims file. The Veteran should also be afforded the opportunity to identify and submit any outstanding private treatment records relevant to her claim. 3. After all available records have been associated with the claims file, afford the Veteran an appropriate VA examination to determine the nature, onset, and likely etiology of any bilateral knee conditions. The entire claims file and a copy of this Remand must be made available to the examiner and the examiner shall indicate in the report that the claims file was reviewed. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. After examining the Veteran and reviewing the claims file, the examiner should render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed knee condition, to include bilateral chondromalacia patellae, left medial collateral ligament strain, left knee Baker's cyst, bilateral tenosynovitis, and bilateral osteoarthritis, had its onset in service or is related to any in-service disease, event, or injury, to include carrying bulk supplies up and down metal ladder wells. The examiner should also specifically state whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran had arthritis of either knee within one year of her service discharge in December 1998. The examiner should also provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed knee condition, to include bilateral chondromalacia patellae, left medial collateral ligament strain, left knee Baker's cyst, bilateral tenosynovitis, and bilateral osteoarthritis, was (1) caused by or (2) aggravated by the Veteran's service-connected bilateral foot and/or bilateral ankle disabilities. If such aggravation is found, the examiner should determine: (a) the baseline manifestations of the Veteran's knee condition absent the effect of aggravation, and (b) the increased manifestations that are proximately due to the service-connected disability. The Veteran contends that her service-connected foot and ankle disabilities result in an altered gait that impacts her knees. The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence, particularly an August 1997 service treatment record and an April 2000 VA treatment record showing that the Veteran walked with a limp, VA treatment records from February 2000 and April 2000 showing complaints of bilateral knee pain and a diagnosis of mild degenerative joint disease bilaterally, private treatment records showing treatment for bilateral knee conditions and reflecting that the Veteran had an abnormal gait, and the Veteran's statements regarding bilateral knee pain in service and since discharge. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Thereafter, the RO/AMC must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that they are responsive to and in compliance with the directives of this remand and, if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Following the completion of the foregoing, the RO/AMC should readjudicate the Veteran's claim. If the claim is denied, supply the Veteran and her representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The Veteran 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 2014). _________________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).