Citation Nr: 20021458 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 14-03 413 DATE: March 25, 2020 REMANDED Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a bilateral knee disability, including as secondary to a bilateral foot disability, is remanded. Entitlement to service connection for a lumbar spine disability, including as secondary to a bilateral foot disability and/or bilateral knee disability, is remanded. REASONS FOR REMAND The Veteran had active duty service from May 1971 to April 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision issued by a Department of Veterans Appeals (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in February 2016. A copy of the transcript has been reviewed and associated with the claims file. These issues were before the Board in November 2016, at which time they were remanded for additional evidentiary development. 1. Entitlement to service connection for a bilateral foot disability is remanded. Throughout the rating period on appeal, the Veteran has been assessed with bilateral plantar fasciitis, achilles tendonitis, and pes planus and asserts that his bilateral foot disability was incurred in service. The service-treatment records reveal complaints of foot problems in March 1975. The Veteran testified at the hearing and submitted numerous statements indicating that he began experiencing bilateral foot pain in 1971 during basic training from the strain of prolonged running, marching, and standing. He was encouraged by higher level officials to tough it out and not seek any treatment. Following service, the Veteran’s treatment records reveal that he complained of pain in his left heel in March 1999 and indicated that he suffered several decades of pain from a plantar wart, which caused him to walk over the lateral part of the foot. He was assessed with plantar fasciitis. In November 2009, he was assessed with achilles tendonitis and in 2010 he was assessed with bursitis of the foot and bilateral pes planus. The Veteran submitted an April 2016 statement by R.W., M.D., which indicated that his bilateral foot disability was related to service. However, Dr. R.W. provided no other details or rationale regarding this opinion. Accordingly, the Board is unable to grant service connection based on this insufficient medical opinion. Pursuant to the Board’s remand instructions, a VA examination was performed in June 2018 and an addendum opinion was issued in October 2019. The examiner assessed the Veteran with bilateral pes planus, with a date of diagnosis listed as 2018 and plantar fasciitis with a date of diagnosis listed as 2010. He opined that his bilateral foot disabilities were not related to service because his foot problems began in March 1975, his current complaints were not related to the March 1975 incident, and there was no diagnosis of flat feet during service. After a review of the evidence, the Board finds that the June 2018 VA examination and subsequent addendum opinions are insufficient to determine the present claim. In this regard, the examiner indicated that the Veteran’s foot problems began in March 1975 and failed to acknowledge or discuss the Veteran’s hearing testimony and statements indicating that he began having foot problems during basic training in 1971. Furthermore, the examiner listed the date of diagnosis of pes planus as 2018 when his treatment records show he was diagnosed in 2010 and listed the date of diagnosis for plantar fasciitis as 2010 when he was diagnosed in 1999. Accordingly, the Board finds a new VA examination is warranted in order to assess the nature and etiology of the Veteran’s bilateral foot disabilities. 2. Entitlement to service connection for a bilateral knee disability, including as secondary to a bilateral foot disability, is remanded. The Veteran has been assessed with bilateral knee osteoarthritis and asserts that his knee pain commenced in service and/or is secondary to his bilateral foot disability. The service-treatment records reveal reports of an unstable right knee during his entrance examination. However, a physical examination was performed, and the knee was found stable with normal range of motion. Following entry into service, he complained of a sore right knee for three days in June 1971. It was noted that his original injury occurred playing football, with mechanism unknown. He was diagnosed and given a profile for chondromalacia patella. He complained of right knee pain in January 1972. The Veteran testified at the hearing and submitted statements indicating that he had bruising of the right knee prior to entrance into service. He had no history of left knee pain prior to service. He indicated that his bilateral knee pain started during basic training from marching and running. Furthermore, he had continuous injuries inflicted to his knees from jumping up and down from tanks in service. He slipped and fell onto ice in Germany. Following service, the Veteran reported right knee pain in June 2004. X-rays revealed mild arthritis. The treating physician indicated that the right knee disability was preexisting and not related to his work injury. The Veteran submitted an April 2016 statement by R.W., M.D., which indicated that his bilateral knee disability was related to service. However, Dr. R.W. provided no other details or rationale regarding this opinion. Accordingly, the Board is unable to grant service connection based on this insufficient medical opinion. Pursuant to the Board’s remand instructions, a VA examination was performed in June 2018 and addendum opinions were issued in September 2018 and October 2019. The examiner assessed the Veteran with bilateral knee osteoarthritis and listed the date of diagnosis as 2010. He concluded that the Veteran’s knee problems preexisted service because he was a football player and had been injured prior to service. The examiner also concluded that his current diagnosis of osteoarthritis occurred following service. After a review of the evidence, the Board finds that a new VA examination is warranted. In this regard, there is no evidence that the Veteran’s right knee osteoarthritis preexisted service. He was examined upon entrance into service and his knee was found to be stable with normal range of motion. Thus, he is presumed sound at the time of entry into service. Furthermore, there are no documented left knee complaints upon entry to service. However, the VA examiner grouped both knees together and indicated that his knee disabilities existed prior to service and were not aggravated beyond their natural progression in service. Lastly, the examiner listed the date of diagnosis for arthritis of the knees as 2010 when the records indicate this diagnosis was revealed as early as 2004. Accordingly, the Board finds a new VA examination is warranted in order to assess the nature and etiology of the Veteran’s bilateral knee disabilities. 3. Entitlement to service connection for a lumbar spine disability, including as secondary to bilateral foot disability and/or bilateral knee disability, is remanded. The Veteran has been assessed with mild degenerative changes of the lumbar spine and asserts his back disability was incurred in service and/or secondary to his bilateral foot and/or bilateral knee disabilities. The service treatment records reveal complaints of back pain in June 1975. Following service, in June 2004, the Veteran was assessed with a right sided lumbar strain with right leg sciatica following a work injury. He submitted a statement in February 2016 and indicated that his back pain preceded his 2004 work injury. The Veteran submitted an April 2016 statement by R.W., M.D., which indicated that his lumbar spine disability was related to service. However, Dr. R.W. provided no other details or rationale regarding this opinion. Accordingly, the Board is unable to grant service connection based on this insufficient medical opinion. Pursuant to the remand instructions, a VA examination was performed in June 2018 and addendum opinions were issued in September 2018 and October 2019. After a review of the evidence, the Board finds that these medical opinions are insufficient to determine the present claim. In this regard, the examiner indicated that the Veteran’s lumbar spine disability was not related to service, in part, because he did not have any in-service complaints. However, the Veteran’s service-treatment records reveal he complained of back pain in June 1975. Accordingly, the Board finds a new VA examination is warranted in order to assess the nature and etiology of the Veteran’s lumbar spine disabilities. Moreover, an April 2011 memorandum from the VA indicated that the Veteran’s service-treatment records were incomplete. The VA made a formal finding in August 2019 indicating that his service-treatment records were considered complete from May 1971 to April 1976. However, the RO failed to provide formal notification to the Veteran and his representative pursuant to the Board’s remand instructions. Lastly, the Board finds that the Veteran’s VistA images associated with his VA treatment records and the workers’ compensation records from the 2004 back injury should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from August 2019 to the present. 2. Obtain and associate with the claims file the VistA images for the Veteran’s correlating VA treatment records. 3. Provide formal notice to the Veteran and his representative indicating that his service-treatment records are considered complete. Provide the Veteran and his representative an opportunity to respond. 4. Request information from the Veteran regarding the workers’ compensation records and treatment pertaining to his 2004 back injury. Document all requests(s) for information, as well as responses in the claims file. 5. After completion of #1, #2, #3, and #4, schedule the Veteran for a VA examination, by an examiner who has not previously provided an opinion in this matter, to determine the nature and etiology of his bilateral foot, bilateral knee, and lumbar spine disabilities. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should identify and discuss any right foot, left foot, right knee, left knee, and lumbar spine disabilities found on examination and/or identified since the filing of this claim (2011), including bilateral plantar fasciitis, achilles tendonitis, and pes planus and arthritis of the knees and lumbar spine, and respond to the following: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s right foot, left foot, left knee, and/or lumbar spine disabilities had their onset in and/or are otherwise related to his period of active service? Regarding the right knee, is there clear and unmistakable evidence in the file showing that this preexisted service? If so, please specifically identify this evidence and then also opine whether it is at least as likely as not that such preexisting right knee disorder was NOT aggravated by service beyond its natural progression. If either inquiry is answered in the negative, then the legal standard for consideration reverts back to whether it is at least as likely as not that a right knee disability was incurred in service or is otherwise related to service. Attention is called to the Veteran’s post-service lumbar spine injury in 2004. The examiner should understand that as long as some level of disability existed prior to the intercurrent incidents, then a positive nexus to service should be made. Solely for the purposes of future rating, if a nexus to service is made, the examiner should then attempt to estimate the percentage of symptoms attributable solely to the in-service injuries. B. If service connection is found for a right and/or left foot disability, and the bilateral knee and lumbar spine disabilities are not found to be directly related to service, is it at least as likely as not (probability of at least 50 percent) that these disabilities were caused by his right and/or left foot disabilities? If not, is it at least as likely as not (probability of at least 50 percent) that these disabilities have been aggravated (any incremental increase in disability) as a result of his right and/or left foot disabilities? If so, please identify the baseline level of disability prior to such aggravation. C. If service connection is found for a right and/or left knee disability, and the lumbar spine disability is not found to be directly related to service, is it at least as likely as not (probability of at least 50 percent) that this disability was caused by his right and/or left knee disabilities? If not, is it at least as likely as not (probability of at least 50 percent) that this disability has been aggravated (any incremental increase in disability) as a result of his right and/or left knee disabilities? If so, please identify the baseline level of disability prior to such aggravation. The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner must discuss the hearing testimony and statements by the Veteran and his representative. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.