Citation Nr: 21068658 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 10-27 788 DATE: November 12, 2021 REMANDED Entitlement to service connection for a bilateral lower extremity disability other than bilateral knee osteoarthritis (but including hip), to include as secondary to service connected bilateral metatarsalgia with pes planus and/or service connected bilateral knee osteoarthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1967 to May 1969. The Veteran died in January 2016, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision from a Department of Veterans Affairs (VA) Regional Office. The Board remanded this matter for further development in August 2015, May 2016, August 2020, and March 2021. As the extensive procedural history of this case was detailed in the March 2021 Board decision, that procedural history is incorporated herein by reference. Now the matter before the Board. This matter was last remanded to the agency of original jurisdiction (AOJ) for a VA medical opinion in March 2021. Regrettably, as explained below, the Board finds that another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Review of the evidentiary record shows the Veteran repeatedly asserted his bilateral lower extremity disability was the result of his service connected bilateral metatarsalgia with pes planus and bilateral knee osteoarthritis, as he experienced severe foot pain that affected the way he walked and inhibited his ability to exercise. See e.g., Veteran's Correspondence, received October 8, 2009. Indeed, the appellant reported in May 2012 that her spouse's constant complaint was the devastating pain in his feet and how the condition made it impossible for him to walk and exercise. See Spouse Correspondence, received May 24, 2012. The March 2021 Board decision directed the AOJ to obtain a VA medical opinion, as the October 2015 examiner failed to adequately address whether claimed disability was aggravated by the Veteran's service-connected foot disabilities. The Board also determined that, in accordance with Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018), the medical opinion should consider whether the Veteran's hip pain and decreased range of motion were sufficient to warrant consideration as a disability for VA compensation purposes. Finally, the medical opinion should also address whether the bilateral lower extremity disability was also secondary to the now-service connected bilateral knee osteoarthritis (secondary to bilateral metatarsalgia with pes planus) and/or the combined effect of them and the service connected foot disabilities. Per the March 2021 remand directives, the AOJ obtained a VA medical opinion in June 2021. The examiner provided a negative nexus opinion, finding that the Veteran's bilateral lower extremity disability, hip, knees, back, was less likely as not proximately due to or the result of bilateral metatarsalgia with pes planus. As rationale, the examiner explained the Veteran's foot condition did not cause physical changes in the hip position, leg length discrepancy, or loss of disc height. Significantly, the examiner determined the disability was likely caused from other risk factors, to include being overweight, adult lifestyle, and loss of strength/ stretching/ exercise. The examiner summarily provided a negative nexus opinion for aggravation of the knees, hip, and back, including the same risk factors. The June 2021 VA examiner's opinion and rationale indicated the Veteran's bilateral knee disability was not related to the Veteran's service connected foot disabilities, and no opinion was provided to address whether the claimed bilateral lower extremity disability was caused or aggravated by the knee disability alone or in combination with his foot disabilities. As noted above, the Veteran was service connected for a bilateral knee disability due to service connected foot disabilities. Therefore, the June 2021 VA medical opinion was based on an inaccurate factual premise and is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Further, the Board notes that the June 2021 VA medical opinion does not address the totality of the Veteran's contentions. The examiner did not explain why the Veteran's reported symptoms of severe foot pain, which impaired his ability to walk and limited exercise, did not reflect worsening of the claimed bilateral lower extremity disability. A medical examiner is not free to simply ignore a Veteran's lay statements recounting symptoms or events. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Considering the above, the Board finds that the directives from the March 2021 Board remand have not been complied with as required. The Board finds that the claims must again be remanded to the AOJ for a medical addendum based on review of the entire evidentiary. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board emphasizes that the VA examiner must specifically address the Veteran's lay statements regarding symptomatology and relevant medical evidence. Thus, this issue is once again being remanded to the AOJ to ensure compliance with the March 2021 Board remand directives. The matters are REMANDED for the following action: 1. Obtain a medical opinion regarding the nature and etiology of the Veteran's bilateral lower extremity disability other than bilateral knee osteoarthritis (but including hip disability), to include as secondary to service connected bilateral metatarsalgia with pes planus and/or bilateral knee osteoarthritis. The evidentiary record, including a copy of this Remand, must be made available to, and reviewed by the reviewer. The examiner must confirm in the opinion report that this record review took place. The examiner should identify the Veteran's bilateral lower extremity diagnoses other than bilateral knee osteoarthritis (but including hip disability), to include as secondary to service connected bilateral metatarsalgia with pes planus and/or bilateral knee osteoarthritis beginning May 2008. The examiner is advised that under Saunders, pain and functional loss may rise to the level of a disability for VA compensation purposes. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). For each identified bilateral lower extremity diagnosis other than bilateral knee osteoarthritis (but including hip disability), the examiner should opine whether it is at least as likely as not (probability of 50 percent or greater) that any such disability had its onset during active service or is etiologically related to the Veteran's active duty service. Then, for each identified bilateral lower extremity diagnosis other than bilateral knee osteoarthritis (but including hip disability), the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any such disability experienced by the Veteran beginning in May 2008 was caused by his 1) service connected bilateral metatarsalgia with pes planus, 2) service connected bilateral knee osteoarthritis, and 3) the combined effect of the service connected disabilities. The examiner should also opine whether each identified bilateral lower extremity diagnosis other than bilateral knee osteoarthritis (but including hip disability), is at least as likely as not (50 percent or greater probability) that any such disability experienced by the Veteran beginning in May 2008 was aggravated (worsened beyond the natural progression of the disability) by 1) service connected bilateral metatarsalgia with pes planus, 2) service connected bilateral knee osteoarthritis, and 3) the combined effect of the service connected disabilities. The examiner must provide supporting rationale for all opinions expressed. The examiner should specifically consider and address the lay statements and medical evidence of record indicating severe foot pain impaired the Veteran's ability to walk and exercise. See e.g., Private medical opinion by Dr. J. L. D., received October 8, 2009; see also Veteran's Correspondence, received October 8, 2009; See Spouse Correspondence, received May 24, 2012. 2. After the above and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.