Citation Nr: 20028829 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 13-25 397A DATE: April 24, 2020 REMANDED Entitlement to service connection for arthritis of the left knee, including as secondary to service-connected degenerative joint disease of the left ankle and foot with pes planus or diabetes mellitus, is remanded. Entitlement to service connection for arthritis of the right knee, including as secondary to service-connected degenerative joint disease of the left ankle and foot with pes planus or diabetes mellitus, is remanded. Entitlement to service connection for arthritis of the right ankle, including as secondary to service-connected degenerative joint disease of the left ankle and foot with pes planus or diabetes mellitus, is remanded. Entitlement to special monthly compensation based on the need for regular aid and attendance of another person is remanded. REASONS FOR REMAND The Veteran had active duty service from November 1957 to November 1961 and from May 1969 to August 1972. This matter comes to the Board of Veterans’ Appeals (Board) from an August 2011 rating decision of a VA Agency of Original Jurisdiction (AOJ). The Board remanded this case to the AOJ for additional development in August 2017. The case has since returned to the Board. Unfortunately, another remand is necessary. Although the Board sincerely regrets this additional delay, it is necessary to ensure that the Veteran is afforded adequate due process and every possible consideration. On remand, in a December 2019 rating decision, service connection for a left ankle and left foot disability was granted. That issue no longer remains in appellate status and is not before the Board. 1. Entitlement to service connection for arthritis of the left knee, including as secondary to service-connected degenerative joint disease of the left ankle and foot with pes planus or diabetes mellitus, is remanded. 2. Entitlement to service connection for arthritis of the right knee, including as secondary to service-connected degenerative joint disease of the left ankle and foot with pes planus or diabetes mellitus, is remanded. 3. Entitlement to service connection for arthritis of the right ankle, including as secondary to service-connected degenerative joint disease of the left ankle and foot with pes planus or diabetes mellitus, is remanded. The Veteran underwent a VA examination for his knees and ankles in November 2017. The examiner diagnosed the Veteran with arthritis in both ankles, and arthritis in both knees. The examiner provided a negative nexus opinion, explaining that, “joint [osteoarthritis] of knees and [right] ankle are likely to be [secondary] to ongoing process of aging since there are no documented injuries in [the service treatment records (STRs)].” The rationale provided is inadequate. First, an adequate rationale cannot be based entirely on a lack of documentation, especially, as is the case here, when the Veteran’s STRs from Vietnam are not available. If there is a medical basis for attributing a disability that was diagnosed after service, regardless of in-service treatment, to a period of service, service connection is warranted. Second, the examiner does not directly address the Veteran’s contention, that his bilateral knee and right ankle disabilities are related to jumping six to ten feet from helicopters with eighty to one hundred pounds of additional weight. Third, the examiner did not address the Veteran’s credible lay statements, or those of witnesses that are in the record. The Veteran contends that his joint pain began during, and has persisted since, service. In March 2010, two written statements were submitted, which indicate that other servicemembers witnessed the Veteran bandaging and icing his knees and ankles in Vietnam. Finally, the August 2017 remand indicated that an opinion was required regarding whether the Veteran’s ankle disability preexisted either period of active duty service. The examiner did not respond to this inquiry. Additionally, the claims file contains arguments that further warrant a remand. The Veteran’s representative contends that the Veteran’s joint pain is secondary to his service-connected diabetes mellitus, and is actually diabetic arthropathy, and the representative cites several internet articles regarding altered gait that need to be reviewed and addressed. Finally, the Veteran’s representative contends that his knee and right ankle disabilities are secondary to Veteran’s now-service-connected left foot and left ankle disabilities. This theory must be addressed on remand. 4. Entitlement to special monthly compensation based on the need for regular aid and attendance of another person is remanded. The issue of entitlement to special monthly compensation based on the need for regular aid and attendance is intertwined with the claims for service connection; the outcome of this issue is dependent on the adjudication of those claims, making a remand necessary. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion to determine the nature and etiology of his bilateral knee disabilities and right ankle disability, including degenerative joint disease. The examiner should consider and address the following: (a.) Please review the following specific documents: (1) the STRs, including the September 1970 report demonstrating old fractures of the feet and findings of arthritic changes in the ankles; (2) the February 1979 VA examination documenting a right ankle fracture in 1975, right knee injury in 1978, and early traumatic degeneration of the ankles and knees; and (3) the post-service private and VA medical records, and VA examinations. (b.) The examiner must address the lay statements in the claims file, including that: the Veteran jumped between six and ten feet from helicopters with eighty to one hundred pounds of additional weight; the Veteran has had pain since service; witnesses saw the Veteran use bandages, medical tape, and ice on his knees in Vietnam. (c.) The examiner must review and address the following websites cited by the Veteran’s representative: http://wsiat.on.ca/english/mlo/symptoms_leg.htm; http://wsiat.on.ca/english/mlo/limping.htm; www.rehab.research.va.gov/mono/gait/malanga.pdf; and https://en.wikipedia.org/wiki/Gait_analysis; https://www.uptodate.com/contents/diabetic-neuropathic-arthropathy. (d.) The examiner must opine as to whether it is at least as likely as not (50 percent likelihood or greater) that the Veteran’s bilateral knee disabilities and right ankle disability, including degenerative joint disease: (1) had their onset during either period of active duty from November 1957 to November 1961 or May 1969 to August 1972; (2) manifested within one year of separation from either period of active service; or (3) that such disabilities were caused by any incident or event that occurred during either period of active duty, including helicopter jumps. (e.) The examiner must opine as to whether it is as least as likely as not that any disability of the left knee, right knee, or right ankle: (1) preexisted the period of active duty service from November 1957 to November 1961; or (2) preexisted period of active service from May 1969 to August 1972. (f.) If a disability preexisted either period of active duty, the examiner must opine as to whether it is at least as likely as not that the disability was not aggravated by that period of service. Additionally, if the examiner finds that any disability of the knees or right ankle preexisted either period of active duty, the examiner should address: (1) the evidence which supports this opinion; (2) the findings in the service entrance examinations, which demonstrate no abnormalities of the bilateral lower extremities; and (3) any evidence that demonstrates these disabilities were not aggravated by service. (g.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s bilateral knee disabilities and right ankle disability, including degenerative joint disease, are proximately caused or aggravated by the Veteran’s service-connected degenerative joint disease of the left ankle and foot with pes planus. (h.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s bilateral knee disabilities and right ankle disability, including degenerative joint disease, are proximately caused or aggravated by the Veteran’s service-connected diabetes mellitus with peripheral neuropathy of the right lower extremity. A complete explanation for all opinions expressed must be provided. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, Associate 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.