Citation Nr: 21002147 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-38 088 DATE: January 12, 2021 REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a chronic bilateral shin condition, to include shin splints and chronic pain secondary to shin splints is remanded. Entitlement to service connection for residuals of bilateral stress fractures of the lower extremities, to include chronic pain is remanded. Entitlement to service connection for a bilateral foot condition to include pes planus and plantar fasciitis is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from November 1998 to November 2002. This case comes on appeal of a July 2013 rating decision. These matters were previously before the Board in August 2019. At that time, the Board remanded the claim for further development. 1. Entitlement to service connection for a left ankle disability is remanded. 2. Entitlement to service connection for a right ankle disability is remanded. 3. Entitlement to service connection for a chronic bilateral shin condition, to include shin splints and chronic pain secondary to shin splints is remanded. 4. Entitlement to service connection for residuals of bilateral stress fractures of the lower extremities, to include chronic pain is remanded. As was discussed in the Board’s prior remand, the Veteran’s claims are all effectively intertwined. The Veteran’s contention is that he suffered from bilateral shin splints and stress fractures of the lower extremities during service. According to the Veteran, chronic pain from these conditions continued after service. The pain first occurred only while running, however, beginning in approximately 2011, pain began to occur while standing and walking as well. The Veteran has testified that his physician told him that his lower extremity pain resulted in an altered gait, which caused the other disabilities being addressed separately below. In its August 2019 remand, the Board instructed the agency of original jurisdiction (AOJ) to schedule the Veteran for an examination of the bilateral legs and ankles. The examiner was instructed that pain alone may be considered a disability, even in the absence of an underlying diagnosis, when such pain contributes to functional loss. The examiner was also instructed to specifically address the Veteran’s contentions that pain continued after service but began to get worse and more frequent beginning in 2011. In November 2019, the Veteran underwent VA examinations addressing his claimed disabilities related to stress fractures, shin splints, and bilateral ankle disabilities. The examiner opined that it was less likely than not that any condition was caused by or incurred in service, or was caused or aggravated by a service-connected condition. Regarding shin splints, the examiner stated that, during service, the condition was acute only and that there was no evidence of chronicity of care. There was no objective evidence of record for chronic shin splints or residual of stress fracture or shin splints. Regarding the Veteran’s ankle conditions, the examiner stated that the symptoms were subjective only and that the objective examination was normal with no evidence of a chronic condition. First, the Board notes that service treatment records demonstrate that the Veteran was treated numerous times over the course of his active duty service for complaints related to shin splints. Records show these complaints beginning as early as December 1998 and continuing through the Veteran’s separation examination in August 2002. Second, the Board notes that, on examination, the Veteran’s bilateral ankles showed limitation of plantar flexion to 25 degrees. The examiner reported that this did not contribute to functional loss without any further explanation other than to say that it was an incidental finding of no clinical significance. Moreover, the examiner did not adequately address the Veteran’s claims of chronic pain. The examiner reported that symptoms were subjective only. Indeed, the Board explicitly noted in its prior Remand that pain alone, even in the absence of a diagnosed disability, may be considered a disability if it resulted in functional loss. Here, the Veteran has reported chronic pain of the lower extremities that is exacerbated by sitting for long periods of time and has caused him to wear bilateral ankle braces. May 2019 VA treatment records also demonstrate that the Veteran has been under long-term opioid therapy for bilateral ankle pain. Thus, the examiner’s negative nexus opinion based on a dismissal of the Veteran’s complaints of pain as “subjective only,” without more, renders the examination inadequate. See Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018) (pain alone may be considered a disability when it results in functional loss); Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers a right on a claimant to compliance with the remand order). On remand, a new examination is necessary. The examiner should first address whether the Veteran has a current disability of the lower legs. The examiner should specifically address whether the Veteran experiences pain—even in the absence of a formal diagnosis—that results in functional loss. If the examiner determines that the Veteran does experience pain, but that such pain does not contribute to functional loss, the examiner should provide a full explanation of why that is the case. The examiner should then address whether any identified disability was caused by or incurred in service. 5. Entitlement to service connection for a bilateral foot condition to include pes planus and plantar fasciitis is remanded. Subsequent to the August 2019 remand, the Veteran first underwent a VA foot conditions examination in November 2019. At that time, the examiner noted that for the claimed condition of bilateral plantar fasciitis, the diagnosis was bilateral flat foot (pes planus). The examiner then provided an opinion stating that it was at least as likely as not that pes planus was incurred in service, as the Veteran did not have the condition upon entry to service and the onset of the condition was documented in the Veteran’s service treatment records. The AOJ then requested an addendum to the November 2019 examination, noting that there was no documentation that the Veteran had been diagnosed with or treated for pes planus during service. In September 2020, the Veteran underwent a new foot conditions examination. At that time, the examiner diagnosed bilateral pes planus and bilateral plantar fasciitis. The examiner opined that it was less likely than not that a foot condition was caused by or incurred in service, or was caused or aggravated by the Veteran’s claimed leg conditions. By way of rationale, the September 2020 examiner stated that the Veteran did not have a current diagnosis of shin splints (alleged to have caused an altered gait), and that there was no evidence of chronicity of care for bilateral shin splints or bilateral pes planus or bilateral plantar fasciitis. The Board notes that the Veteran is competent to describe his experiences of chronic pain and the lack of chronicity of care is not, in and of itself, determinative in this case without additional explanation by the examiner. The examiner provided an explanation of the common causes of pes planus and plantar fasciitis, but did not address the Veteran’s contention that pain due to his ankle and shin conditions otherwise led to an altered gait. The examiner also alleged that there was no service separation examination present in the record. This is not accurate. The Veteran underwent an examination in August 2002—signed by the examiner in September 2002—that is noted as an examination for the purposes of separation. Based on the examiner’s comments, it is unclear whether the examination was performed with an accurate understanding of the Veteran’s military medical history. For all of these reasons, the November 2019 and September 2020 examinations were inadequate. Thus, on remand, a new examination is necessary. The Veteran’s full record should be reviewed. The examiner should consider whether the Veteran’s bilateral foot conditions were caused or aggravated by an ankle or shin condition, to include an altered gait as due to pain alone. 6. Entitlement to service connection for a left knee disability is remanded. 7. Entitlement to service connection for a right knee disability is remanded. As was noted above, the Veteran’s claims for left and right knee disabilities are intertwined with the claims related to his shins and ankles and must therefore be remanded as well. Further, the Veteran underwent a knee and leg conditions examination in November 2019. At that examination, the examiner diagnosed bilateral chondromalacia patellae. Range of motion examination showed right knee flexion limited to 110 degrees, right knee extension limited to 10 degrees, left knee flexion limited to 100 degrees, and left knee extension limited to 5 degrees. The examiner also observed pain on flexion and extension of the right knee and on flexion of the left knee. Despite this, the examiner reported that there was no functional loss, without any further explanation. Additionally, the examiner did not address the Veteran’s May 2019 agreement for long-term opioid therapy related to bilateral knee pain, or the May 2018 assessment of early knee osteoarthritis. The examiner then opined that it was less likely than not that the Veteran’s knee conditions were caused by or incurred in service. By way of rationale, the examiner simply stated that during service, the claimed knee disability was acute only, and that there was no evidence of chronicity of care. The examiner did not address at all the Veteran’s contention that the knee conditions were caused or aggravated by his shin and ankle conditions. Instead, the examiner filled out the information regarding aggravation of a disability that pre-existed military service—a theory of entitlement that has not been claimed by the Veteran or raised in any way by the record. Thus, the examination was inadequate as it both failed to address the Veteran’s contentions and failed to provide sufficient medical rationale for the conclusions reached. On remand, a new examination is necessary that complies with the Board’s prior remand instructions and adequately addresses the findings at examination and in the record related to the Veteran’s bilateral knee conditions. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to address the claims of bilateral shin splints, stress fractures of the legs, and ankle conditions. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. The examiner should clearly identify all current disabilities. In doing so, the examiner is informed that for VA compensation purposes, pain alone, even in the absence of a diagnosed condition, may be considered a disability when it results in functional loss. The Veteran, as a layperson, is considered competent to report on his own history of pain as he has experienced it. If the examiner determines that the Veteran experiences pain that does not result in functional loss, the examiner should clearly explain why that is the case. If the examiner determines that the Veteran’s medical history contradicts the Veteran’s statements regarding his symptomatology, the examiner should clearly explain why that is the case. Then, with respect to any disability found, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. In doing so, the examiner should specifically address the Veteran’s history of in-service shin pain, beginning in December 1998 and continuing through to his separation examination in August 2002. The examiner should also address the Veteran’s competent lay statements that his pain continued after service, specifically when running, and worsened in frequency and severity in 2011 when he began to experience pain when walking and standing as well. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. 2. Schedule the Veteran for a VA foot conditions examination. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. The examiner should clearly identify all current disabilities of the feet. Then, with respect to each such diagnosed disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. The examiner should also render an opinion as to whether it is at least as likely as not that the disability was caused or aggravated by the Veteran’s claimed shin and/or ankle conditions, to include as due to an altered gait secondary to pain. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. 3. Schedule the Veteran for a VA examination of the bilateral knees. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. The examiner should clearly identify all current disabilities of the bilateral knees. In doing so, the examiner is informed that for VA compensation purposes, pain alone, even in the absence of a diagnosed condition, may be considered a disability when it results in functional loss. The examiner should address the Veteran’s documented agreement for the long-term use of opioids in the treatment of bilateral knee pain, as well as a May 2018 assessment of early knee osteoarthritis. Then, with respect to any disability found, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. The examiner should also render an opinion as to whether it is at least as likely as not that the disability was caused or aggravated by the Veteran’s claimed shin and/or ankle conditions, to include as due to an altered gait secondary to pain. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. 4. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.