Citation Nr: 18159439 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 14-10 888 DATE: December 19, 2018 REMANDED Entitlement to service connection for right ankle disability, to include as secondary to service-connected status post right and left knee arthroplasties (right and left knee disabilities), is remanded. Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected right and left knee disabilities, is remanded. Entitlement to an increased rating for left knee disability, currently rated as 50 percent disabling, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from April 1953 to March 1955. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In February 2015, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These matters were last before the Board in November 2017, when they were remanded for additional development. The Veteran initially filed a claim for service connection for pes planus. However, in light of the representative’s assertions and the foot diagnoses of record, including bilateral hallux valgus, bilateral osteoarthritis, bilateral plantar fasciitis, and bilateral calcaneal spurs, the Board has expanded the Veteran's claim to include all right or left foot disabilities, and the issue has been recharacterized as stated on the title page. Clemons v. Shinseki, 23 Vet. App. 1 (2009). While the prior remand included the issue of entitlement to service connection for a right knee disability, that claim was granted in a September 2018 rating decision. Accordingly, that issue has been resolved and is not on appeal before the Board. 1. Entitlement to service connection for right ankle disability, to include as secondary to service-connected right and left knee disabilities, is remanded. 2. Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected right and left knee disabilities, is remanded. 3. Entitlement to an increased rating for a left knee disability, currently rated as 50 percent disabling, is remanded. 4. Entitlement to a TDIU is remanded. The evidence indicates there may be outstanding relevant VA treatment records. An April 4, 2018 VA treatment record indicates that the Veteran was to return for follow up appointment in October 2018. VA treatment records subsequent May 2018 have not been associated with the claims file. Additionally, an August 12, 2011 VA treatment record indicates that a non-VA record from June 6, 2011 had been scanned into VistA Imaging. To date, it does not appear that record has been associated with the claims file. A remand to obtain the outstanding VA treatment records is required. Regarding the Veteran’s bilateral foot claim, he was provided a VA foot conditions examination in July 2018. The Veteran was diagnosed with left foot pes planus, bilateral hallux valgus, bilateral osteoarthritis, and bilateral calcaneal spurs. The examiner stated that the Veteran’s left foot pes planus was less likely than not proximately due to or the result of the Veteran’s service-connected left knee disability. Initially, the examiner’s opinion did not address the aggravation prong of secondary service-connection. Additionally, the examiner did not address all the diagnoses of record, including right foot pes planus, bilateral hallux valgus, bilateral osteoarthritis, and bilateral calcaneal spurs. Moreover, the examiner did not opine whether repetitive activities, such as running, during service aggravated the Veteran’s pre-existing pes planus. Finally, treatment records note the Veteran’s belief that his foot problems are related to his right and left knee disabilities. As service connection has been granted for the Veteran’s right knee disability, the Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran’s foot disabilities are related to his service-connected right knee disability or the combination of his service-connected right and left knee disabilities. In light of the above, a remand to obtain addendum opinions is warranted. Regarding the Veteran’s right ankle claim, in March 2018 the Veteran submitted a nexus opinion from Dr. Day indicating that the Veteran’s right ankle disability began during service and had continued to present day. As Dr. Day did not provide any rationale in support of the positive opinion, that opinion is inadequate to adjudicate the claim. Nevertheless, it is sufficient to trigger VA’s duty to obtain an opinion regarding direct service connection. Additionally, the Veteran has asserted that his right ankle disability is secondary to his right knee disability. As that disability is now service-connected, the Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran’s right ankle disability is related to his service-connection right knee disability or the combination of his service-connected right and left knee disabilities. Accordingly, a remand to obtain addendum opinions is required. Finally, VA requested that the Veteran submit a completed VA Form 21-8940. To date, the Veteran has not responded to that request. As the claim is being remanded for other development, on remand the Veteran should be afforded another opportunity to submit a fully completed VA Form 21-8940. The Veteran is advised that the failure to return a fully completed form could negatively affect his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that “the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records and the VistA Imaging record referenced in the August 12, 2011 VA treatment record. If any requested records are unavailable, the Veteran should be notified of such. 2. Ask the Veteran to fully complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, to include detailing all education and training as well as all full-time or part- time employment subsequent to December 2010. 3. Forward the claims file to a VA podiatrist for review. If a new examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should state: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's pre-existing pes planus underwent a permanent worsening in severity during service. (b.) If the pre-existing pes planus underwent a permanent worsening during service, state whether that worsening was clearly the result of the normal progression of the pes planus, versus being the results of events during service. In so opining, the examiner should address the Veteran’s 1953 report of foot pain and diagnosis of foot strain, the Veteran’s assertions that because of his training as a dispensary technician his foot pain was treated informally and was not documented in his service treatment records, and the July 2018 clinician’s finding that congenital pes planus may be impacted by repetitive high impact sports, such as running. (c.) For any diagnosed foot disability other than pre-existing pes planus, to include bilateral hallux valgus, bilateral osteoarthritis, bilateral plantar fasciitis, and bilateral calcaneal spurs as noted in the July 2018 VA foot conditions examination report and VA treatment records, is it at least as likely as not (50 percent probability or greater) that the condition arose in service or is otherwise related to service? In so opining, the examiner should address the Veteran’s 1953 report of foot pain and diagnosis of foot strain and the Veteran’s assertions that because of his training as a dispensary technician his foot pain was treated informally and was not documented in his service treatment records. (d.) Whether it at least as likely as not (a 50 percent or greater probability) that any of the Veteran’s diagnosed bilateral foot disabilities, including bilateral pes planus, bilateral hallux valgus, bilateral osteoarthritis, bilateral plantar fasciitis, and bilateral calcaneal spurs as noted in the July 2018 VA foot conditions examination report and VA treatment records, has been worsened beyond the normal progression as a result of his service-connected right or left knee disabilities or a combination of the two disabilities, to include any gait disturbance. (e.) Whether it at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral foot disabilities, including bilateral pes planus, bilateral hallux valgus, bilateral osteoarthritis, bilateral plantar fasciitis, and bilateral calcaneal spurs as noted in the July 2018 VA foot conditions examination report and VA treatment records, has been worsened beyond the normal progression as a result of his service-connected right or left knee disabilities or a combination of the two disabilities, to include any gait disturbance. If so, the clinician should attempt to quantify the degree of aggravation beyond the baseline level of disability attributable to the Veteran’s right or left knee disability. A complete rationale should be provided for all opinions and conclusions expressed. 4. Forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's right ankle claim. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a) Whether it is at least as likely as not (50 percent probability or greater) that any right ankle disability was incurred during or otherwise related to active service? In so opining, the clinician should address the May 2017 statement from Dr. Day and the Veteran’s assertion that he sprained his ankle multiple times during service. (b.) Whether it is at least as likely as not (50 percent probability or greater) that any right ankle disability was caused by the Veteran’s service-connected right or left knee disabilities or a combination of the two disabilities? (c.) If not caused by the service-connected right or left knee disabilities or a combination of the two disabilities, is it at least as likely as not that any right ankle disability is worsened beyond natural progression (aggravated) by his service-connected right or left knee disabilities or a combination of the two disabilities? If the clinician finds that any right ankle disability was aggravated by his service-connected right and left knee disabilities or a combination of the two disabilities, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the right ankle disability. In so opining, the clinician should address the April 28, 2008 treatment record noting right ankle swelling with right knee pain flare-ups, January 21, 2011 VA treatment record noting that the Veteran reported increased right ankle pain since his total knee arthroplasty, and the January 24, 2015 opinion from Dr. Hirst indicating that the Veteran’s service-connected right and left knee disabilities placed additional strain on his right ankle and changed the angle of impact of his stride. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Anderson