Citation Nr: 21005129 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 14-22 402 DATE: January 29, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to an initial disability rating in excess of 10 percent for a right thumb disability is remanded. REASONS FOR REMAND The Veteran had active service from January 1971 to December 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 Rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, the Agency of Original Jurisdiction (AOJ). The rating decision granted service connection for right thumb sprain with an evaluation of 10 percent disability, effective March 28, 2011. The rating decision denied service connection for a right knee disability, left knee disability, right ankle disability, and left ankle disability. These matters were before the Board in April 2018 when they were remanded for further development. These matters were again before the Board in April 2020 when they were remanded for further development. 1. Entitlement to service connection for a right knee disability 2. Entitlement to service connection for a left knee disability 3. Entitlement to service connection for a right ankle disability 4. Entitlement to service connection for a left ankle disability 5. Entitlement to an initial disability rating in excess of 10 percent for right thumb disability The Veteran seeks service connection for left and right knee disabilities. In April 2018, the Board reopened the Veteran’s claim for service connection for left and right knee disabilities. The Board noted that the Veteran asserted that his knee conditions are secondary to his bilateral ankle condition. A July 2012 VA examiner addressed this claim but opined that the Veteran’s knee conditions are not related to his bilateral ankle conditions, essentially because the bilateral ankle condition was not service connected. However, the Board found this reasoning was inadequate, and further, given that the ankle conditions are being remanded, the outcome of that remand could affect the knee claims. As such, the Board remanded the claims for left and right knee disabilities. An August 2019 VA examination contained negative nexus opinions addressing various theories of service connection but also indicated that “the increased activity in the service involving the lower extremities (e.g. increased frequency of walking and running on uneven terrain for prolonged distances) will naturally lead to abnormal and exaggerated wear and tear on the knees.” In April 2020, the Board found that the August 2019 opinion cannot be used as the basis for a denial, as the examiner rationalized that the Veteran’s activities during service could cause abnormal wear and tear on the knees. The Board found that the opinion lacked sufficient rationale and discussion of the course of the Veteran’s knee condition. Given the complexity of the medical history, which shows numerous injuries and procedures to the bilateral knees, the Board determined that a medical opinion from an orthopedic specialist was warranted. As such, the Board remanded for a medical opinion by an orthopedic specialist, pursuant to 38 U.S.C. § 5109, as to whether the Veteran’s bilateral knee disabilities are related to his active service. The Board further directed that, should service connection be granted for any ankle disability, an opinion should also be sought as to whether the knee conditions are related to such. Pursuant to the Board’s remand, in May 2020, an opinion was provided by a Family Practice physician. The examiner found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was as follows. Based on medical records review, it is less likely than not that the Veteran’s bilateral knee arthritis status post-bilateral total knee arthroplasty was incurred while in the service. There are no medical records to show that the Veteran had any bilateral knee condition while in service and it is only in 1988, approximately 16 years after the Veteran was discharged from the service, that there was any mention of knee arthritis. The Veteran also seeks service connection for left and right ankle disabilities. In April 2018, the Board reopened the Veteran’s claim for service connection for a bilateral ankle condition. The Board noted that the record reflects that the Veteran’s bilateral ankle condition existed prior to service. “Past sprained ankles” were noted on the Veteran’s December 1970 entrance examination. As such, the Board found that the Veteran is not presumed sound at entry regarding this condition, and that the claim for a bilateral ankle condition is one for aggravation. Furthermore, the Board noted that the record suggests that the Veteran’s bilateral ankle condition may be congenital. A December 2010 examination report indicates that the Veteran has varus deformities of the feet, which have been present since birth. An April 2012 examination report indicates that the Veteran claims he was born with clubbed heels and provided diagnoses of end-stage osteoarthritis and subtalar joints related to congenital varus heels. Additionally, a May 2012 disability questionnaire submitted by the Veteran indicates abnormalities since birth for the right and left ankles. The Board acknowledged that the July 2012 VA examiner attempted to explain away the opinions that the condition was congenital by indicating that there is no such indication in the Veteran’s service treatment records. However, the Board also noted that this is not dispositive. Congenital defects are not considered diseases or injuries for VA compensation purposes and as such, generally may not be service connected as a matter of law. 38 C.F.R. §§ 3.303(c), 4.9 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, the Board noted that service connection may be granted due to aggravation of a congenital or developmental defect by a superimposed disease or injury. VAOPGCPREC 82-90, 55 Fed. Reg. 45,711; Carpenter v. Brown, 8 Vet. App. 240 (1995). Therefore, the Board found that an opinion was necessary as to whether the condition was aggravated by a superimposed disease or injury. Parenthetically, the Board further notes that service connection is also available for a congenital disease that is shown to have been aggravated during active service. An August 2019 VA examination confirmed congenital defects of partial clubfoot deformity, bilaterally, and opined that such would cause abnormal wear and tear on the knees. The examiner also confirmed bilateral ankle osteoarthritis and noted recurrent bilateral ankle sprains. The examiner nonetheless opined against the claimed relationship to service, noting that the Veteran’s ankle sprain disorder predated his military service, and that his clubfoot deformity was a congenital defect. In April 2020, given the August 2019 examiner’s opinion that suggested military activity by an individual with clubfoot deformity may result in exaggerated wear and tear on the knees, the Board found that the opinion that the Veteran’s arthritis of the ankles is not related to activities of service lacked a fully explained rationale. The Board remanded the Veteran’s claim, directing that VA obtain an independent medical opinion from an orthopedist regarding the Veteran’s bilateral ankle disabilities. The Board noted that the Veteran testified during an April 2015 Decision Review Officer hearing that he sprained his ankles during service. The examiner did not consider the Veteran’s report of having sprained his ankles during service. The Board determined that an opinion from a specialist was warranted. As such, the Board remanded for a medical opinion by an orthopedic specialist, pursuant to 38 U.S.C. § 5109, as to whether any of the Veteran’s current disabilities of the bilateral ankles are related to his active service. Pursuant to the Board’s remand, in May 2020, additional opinions were provided by a Family Practice physician. Similarly, with respect to the Veteran’s claim for increased rating, although the Board previously requested a medical opinion by an orthopedic specialist, pursuant to 38 U.S.C. § 5109, as to whether the Veteran’s wrist, forearm, and ulnar neuropathy conditions are related to his in-service injury, and that disabling symptoms attributable to the service-connected disability(ies) should be clearly delineated so as to permit the appropriate rating of the disability, pursuant to the Board’s remand, in May 2020, an opinion was instead provided by a Family Practice physician. Analysis Despite the additional and regrettable delay, a remand is required because the opinions provided were not in substantial compliance with the Board's remand directives to provide the Veteran with medical review and corresponding opinions from an orthopedic physician. Stegall v. West, 11 Vet. App. 268 (1998). Where a prior Board remand directs the AOJ to obtain a medical opinion from a particular specialist, and the AOJ obtains an opinion from a practitioner who lacks this specialty, the Board must address this discrepancy if the examiner's competency is explicitly raised by the Veteran or is otherwise raised by the record. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011); Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019). In addition, where a prior Board remand puts conditions on the selection of the examiner(s) that concern issues beyond the competence of the examiner, the Board must address whether it has substantially complied with the directive even if the Veteran does not raise the issue. Here, the many opinions obtained by VA were not provided by an orthopedic specialist as required by the Board’s prior remand. Stegall v. West, 11 Vet. App. 268 (1998). Here, unlike in Francway, the Board made a very specific request as to the orthopedic specialist opinion it was seeking based on the complexity of the Veteran’s claimed disorders. The issue of competency was raised by the record in that the Board previously directed that an orthopedic specialist should provide the requested opinion. In addition, in a June 2020 correspondence the Veteran expressly raised the issue of whether a Family Practice physician is considered competent to offer the requested opinions. The Board thus finds that the opinions obtained were not in substantial compliance with the prior remand. Therefore, the Board remands the above-described issues for opinions by an orthopedic specialist. In addition, the examiner is cautioned that an opinion may not be based solely on a lack of in-service diagnosis of the claimed disabilities, Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner must also address the Veteran’s lay statements pertaining to his injuries and symptoms and the statements provided by his mother, step-father, and long-time friend. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (2007). The matters are REMANDED for the following action: 1. Pursuant to 38 U.S.C. § 5109, obtain a medical opinion from an orthopedic specialist regarding the Veteran’s bilateral knee disability. After review of the file and the performance of any other development that is warranted, which may include examination, the orthopedist shall provide the following opinions: a. Whether the bilateral knee disabilities had their onset during or are otherwise related to the Veteran’s active service. b. Whether any identified bilateral knee disabilities are proximately due to, the result of, or aggravated by the Veteran’s claimed bilateral ankle disabilities. 2. Pursuant to 38 U.S.C. § 5109, obtain a medical opinion from an orthopedist, regarding the Veteran’s bilateral ankle disability. After review of the file and performance of any other development that is warranted, which may include examination, the orthopedist is asked to identify any bilateral ankle disabilities affecting the Veteran and provide the following opinions: a. Are any of the identified bilateral ankle disabilities congenital or developmental diseases or defects? The terms “disease” and “defect” must be interpreted as being mutually exclusive. The term “disease” is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term “defects” is defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. b. For any congenital defect, the examiner is to provide an opinion as to whether such defect was subject to a superimposed disease or injury during service and that resulted in additional disability? If so, please identify the additional disability. c. As a congenital disease was not noted on entry into service, if a congenital disease of the ankles is found, the examiner should opine as to whether there is clear and unmistakable evidence that such pre-existed service, and, if so, is there clear and unmistakable evidence that the congenital disease did not undergo an increase in the underlying pathology in service. That is, is there evidence of aggravation that is not due to the natural progression of the disease? d. With respect to the condition of “past sprained ankles” that was noted at the time of the Veteran’s entry into service in 1970, state opine whether it is at least as likely as not that the condition associated with “past sprained ankles” was aggravated beyond its natural progression during active service. e. If the Veteran’s identified bilateral ankle disabilities are not determined to be congenital defects or diseases, or that any condition associated with “past sprained ankles” was not aggravated during service, opine whether it is it at least as likely as not that any other identified bilateral ankle disability had its onset during or is otherwise related to the Veteran’s active service? 3. Pursuant to 38 U.S.C. § 5109, obtain a medical opinion from an orthopedist, regarding the Veteran’s hand, wrist, neuropathy, and forearm disability. After full review of the file and performance of any other development warranted, which may include examination, the orthopedist shall provide the following opinions: a. Whether the Veteran’s right wrist, hand, forearm, and ulnar neuropathy conditions are related to his in-service injury. b. Whether the Veteran’s right wrist, hand, forearm, and ulnar neuropathy conditions are secondary (that is, proximately due to, the result of, or aggravated by) his service-connected right thumb condition. The examiner must also indicate all information required to rate the symptoms attributable to the Veteran’s service-connected disability(ies) in compliance with the current criteria for rating musculoskeletal conditions. 38 C.F.R. § 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner must address all relevant and competent lay and medical evidence of record. A complete rationale for all opinions offered must be provided as the Board is precluded from making any medical findings. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.