Citation Nr: 21066125 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-44 129 DATE: October 28, 2021 REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a right ankle disorder, to include as secondary to service-connected disability is remanded. Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected disability is remanded. Entitlement to special monthly compensation (SMC) for aid and attendance is remanded. Entitlement to SMC at the housebound rate prior to July 18, 2014 and after September 1, 2015 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1974 to December 1975. In July 2019, and in pertinent part, the Board remanded the appeal with respect to the above issues for evidentiary development. It has since been returned to the Board for further consideration. Finally, the Board notes that the Veteran was previously represented by an attorney. However, the attorney validly withdrew representation in March 2021, and the Veteran was notified of this action in May 2021. Therefore, the Veteran no longer has a representative for this appeal. 1. Entitlement to service connection for headaches is remanded. 2. Entitlement to service connection for a right foot disorder is remanded. 3. Entitlement to service connection for a left foot disorder is remanded. A review of the record reveals that a remand is necessary to ensure substantial compliance with the Board's July 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the prior remand, the Veteran received multiple VA examinations in January 2020. The Veteran was diagnosed with tension headaches, but the examiner determined the condition is less likely than not attributable to service. The examiner provided the following rationale: It is my medical opinion that the headaches are less likely than not due to service. Medical records have been reviewed and the following was found: seen on 8/23/74 in ortho clinic c/o struck head last night after slip on fall on wet floor and having headaches. However on separation exam on 10/22/75 he denied frequent headaches, it appears the one incident of headache was acute and resolved upon separation. The Veteran was also diagnosed with bilateral dermatophytosis (onychomycosis), which is a form of toenail fungus. Again, the examiner determined the condition is less likely than not attributable to service. The examiner stated: It is my medical opinion that the [bilateral] foot fungal disorder is less likely than not due to service. Medical records have been reviewed and the following was found: enlistment exam on 5/8/74 PE was normal. Separation exam on 10/22/75 there was no abnormality of skin or toes noted. There are no strs for fungal infection while in service. Considering the above, the Board finds the January 2020 opinions to be inadequate for rating purposes. Specifically, the examiner provided limited rationale and did not consider the fact that during service, the Veteran was treated for a right foot fungal infection in April 1975. The examiner also made conclusory remarks without considering any lay statements in support of the claim. Therefore, addendum opinions would help resolve these matters. 4. Entitlement to service connection for a right ankle disorder, to include as secondary to service-connected disability is remanded. 5. Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected disability is remanded. Similarly, review of the record reveals that remand is required in order to comply with the Board's July 2019 remand directives. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In accordance with the prior remand, the Veteran underwent a VA ankle examination in January 2020, where he was diagnosed with bilateral lateral collateral ligament sprain. With respect to direct service connection, the examiner stated: It is my medical opinion that the left ankle condition is less likely than not due to service. Medical records have been reviewed and the following was found: Seen on 10/29/75 at troop med clinic for twisted left ankle during basketball. Dx sprain and 7 day profile. Separation exam on 10/22/75 he denied any ankle pain. One incident of ankle pain did not appear to have caused chronicity of symptoms. It is my medical opinion that the right ankle condition is less likely than not due to service. Medical records have been reviewed and the following was found: separation exam on 10/22/75 he denied any ankle pain. There are no strs for right ankle pain in service. X-ray of right ankle on 9/7/99 at west la VA was normal. However pt (sic) had Arthroscopy of right ankle with exostectomy and synovectomy due to Right anterior ankle impingement with synovitis. With respect to secondary service connection, the examiner remarked: It is my medical opinion that the left ankle condition is less likely than not due to left knee degenerative disorder. Medical records have been reviewed and the following was found: left knee replaced 2014. Left ankle arthroscopic exostectomy done 1999. Left knee arthritis is documented as early as 11/2/99 at west LA VA. It appears that the ankle and knee conditions began the same year and in my opinion the left ankle condition was NOT caused by the knee in the same year in the absence of trauma. On 12/7/78 he had arthroscopy of left knee at west LA VA for patellar chondroplasty, another left knee scope at Kaiser in 1989 and another at west LA in 1992. Also had left bunionectomy, digits 2-5 hammertoe correction, his foot problems more likely contributed to his ankle issues due to altered distribution of weight onto his ankle due to his chronic foot conditions. Regarding aggravation, the examiner reported: Medical records have been reviewed and the following was found: left knee replaced 2014. Left ankle arthroscopic exostectomy done 1999. Left knee arthritis is documented as early as 11/2/99 at west LA VA. it appears that the ankle and knee conditions began the same year and in my opinion the left ankle condition was NOT caused by the knee in the same year in the absence of trauma. on 12/7/78 he had arthroscopy of left knee at west LA VA for patellar chondroplasty, another left knee scope at Kaiser in 1989 and another at west LA in 1992. Left knee replaced 2014. left ankle arthroscopic exostectomy done 1999. left knee arthritis is documented as early as 11/2/99 at west LA VA. On 12/7/78 he had arthroscopy of left knee at west LA VA for patellar chondroplasty, another left knee scope at Kaiser in 1989 and another at west la in 1992. X-ray of right ankle on 9/7/99 at west LA VA was normal. However pt had Arthroscopy of right ankle with exostectomy and synovectomy due to Right anterior ankle impingement with synovitis. It appears that the ankle and knee conditions began the same year and in my opinion the right ankle condition was NOT caused by the knee in the same year in the absence of trauma. Unfortunately, the Board finds these opinions to be inadequate for rating purposes because the examiner did not properly consider the theory of secondary service connection, nor did the examiner properly address the Veteran's lay statements regarding onset. As such, remand is required in order to obtain addendum opinions. 6. Entitlement to special monthly compensation (SMC) for aid and attendance is remanded. 7. Entitlement to SMC at the housebound rate prior to July 18, 2014 and after September 1, 2015 is remanded. The Board notes that as a result of the prior remand, the Veteran received a VA aid and attendance examination in January 2020. It appears that the Veteran later submitted another VA aid and attendance examination conducted in May 2021. Curiously, the Agency of Original Jurisdiction (AOJ) interpreted this as a new claim for benefits and furnished a June 2021 rating decision denying entitlement to SMC based on aid and attendance/housebound. It is unclear to the Board why another rating decision was furnished while the appeal was still undergoing remand development and later returned to the Board. Regardless, because a decision on the remanded issues addressed above could significantly impact a decision on the issue of entitlement to SMC for aid and attendance and at the housebound rate prior to July 18, 2014 and after September 1, 2015, the issues are inextricably intertwined. A remand of the claim for these issues is thereby required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Obtain addendum opinions from the January 2020 VA examiner (or a similarly situated examiner) to determine the nature and etiology of the Veteran's claimed headaches, bilateral foot disorder, and bilateral ankle disorder. The electronic claims files and all pertinent records must be made available to the examiner and the examiner must indicate in the examination report that these records have been reviewed. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (a) The VA examiner must opine whether it is at least as likely as not (50 percent or higher degree of probability) that headaches, bilateral foot disorder, and bilateral ankle disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service. Please note the August 1974 in-service report of head pain. Additionally, it is noted that in 1999 the Veteran had a diagnosis of right ankle impingement with synovitis. Also, there is an October 1975 in-service report of a sprained left ankle. Finally, it is noted that the Veteran was treated for a right foot fungal infection in April 1975. (b) If not directly related to service, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or higher degree of probability) that any identified bilateral ankle disorder is caused by his service-connected left knee disorder. (c) That examiner should then opine whether the bilateral ankle disorder is aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his service-connected left knee disorder. In offering any opinion, the examiner must consider the full record, to include the lay statements in support of the Veteran's claim. The examiner should also reconcile any prior report, if necessary. The rationale for any opinions offered should be provided. If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, then the Veteran should be scheduled for such an examination. 2. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. The issues of entitlement SMC for aid and attendance and entitlement to SMC at the housebound rate prior to July 18, 2014 and after September 1, 2015 should also be adjudicated. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.