Citation Nr: 21068896 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 14-34 016 DATE: November 15, 2021 REMANDED Service connection for a disability of the bilateral lower extremities, to include leg, knee, ankle, with muscle involvement, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to November 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board previously remanded this claim in July 2017, April 2019, and January 2021. While the Board regrets additional delay, unfortunately, remand is again necessary to ensure substantial compliance with the Board's January 2021 remand directives and to obtain an addendum VA opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for a disability of the bilateral lower extremities, to include leg, knee, ankle, with muscle involvement, is remanded. The Veteran contends he has a bilateral lower extremity disability that was caused by or incurred during service. The Board finds the evidence of record is insufficient to resolve his claim. At the outset, the Board notes the Veteran served on active duty from September to November of 1966. Upon entrance, the Veteran's entrance examination reflects a clinically normal evaluation for the lower extremities and joints. The Veteran stated that during three weeks of basic training, he was required to walk on hard surfaces such as concrete and highways for five to ten miles or more in a day following which he experienced swelling in the feet, ankles, and knees. Service treatment records (STRs) note the Veteran experienced swollen feet, ankles, and knees resulting in light duty. STRs also reference that the Veteran experienced intermittent pain and swelling in both ankles for four years prior to service. During the course of treatment, an orthopedic consult noted the Veteran's right limb is approximately a half-inch shorter than the left. Eventually, the Medical Board determined the Veteran had rheumatoid arthritis of the lower extremities, which pre-existed service, was aggravated during service, and the Veteran was not fit for service. Of note, the Veteran's post-separation treatment records reflect he does not have a diagnosis of rheumatoid arthritis. Rather, the Veteran has contended that while he experienced pain and swelling in the years prior to service as noted in his STRs, the condition was aggravated by service. The Board notes, a veteran who served during a period of war will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. § 1111. When the presumption of soundness attaches to a claim but there is a question of pre-existing disability, VA has the burden of establishing by clear and unmistakable evidence (1) that a disability pre-existed service and (2) that there was no aggravation during service. Wagner v. Principi, 370 F. 3d 1089, 1096 (2004). The Board again notes the Veteran's entrance examination was normal. There is a question of pre-existing disability, however, as the Veteran stated that he experienced swelling and pain in his ankles for four years prior to service and the Medical Board noted rheumatoid arthritis that pre-existed service. To date, the Veteran has been afforded multiple VA examinations to determine the nature and etiology of any bilateral lower extremity disabilities. Within the VA examinations and within the Veteran's post-separation treatment records, it has been noted that he does not have a diagnosis of rheumatoid arthritis. An opinion, however, has not been obtained addressing whether the Veteran had a bilateral lower extremity disability, excluding rheumatoid arthritis, that clearly and unmistakably pre-existed service and was clearly and unmistakably not aggravated by service in light of his competent reports of pain and swelling for multiple years prior to service. The Board acknowledges the December 2019 VA examiner's opinion that the Veteran did not have rheumatoid arthritis based on his medical record, but his ankles may have been aggravated by the incident during service. The December 2019 VA examiner, however, did not first address whether the Veteran had a bilateral lower extremity disability, excluding rheumatoid arthritis, that clearly and unmistakably pre-existed service based on the Veteran's competent statements of experiencing pain and swelling for four years prior to active duty, and if so, was the disability clearly and unmistakably not aggravated by service. Additionally, as part of the August 2017 VA examination, an examiner opined that while the Veteran's rheumatoid arthritis workup was negative, inflammatory arthritis has not been ruled out. In light of the multiple attempts of record to determine the Veteran's conditions prior to service, during service, and the relation to his current conditions, the Board finds upon remand, a rheumatologist or other specialist in arthritic conditions would best assist in reaching a resolution for the Veteran's claim. The Board regrets additional delay but finds remand is necessary to ensure the Veteran receives any and all benefits to which he may be entitled. As part of the January 2021 Board remand, an examiner was asked to opine whether it is at least as likely as not the Veteran has a bilateral lower extremity disability with onset in service or is otherwise related to service, assuming the Veteran was sound upon entry. The examiner stated that he could not provide an opinion without speculation, explaining that the Veteran's claimed nexus of injury was over 50 years ago, the Veteran's complaints / treatment for claimed lower extremity injuries have mostly been within the last 10 to 15 years, and there was a motor vehicle accident in 1970. The examiner stated that he could not opine whether the Veteran's time in the military actually caused his claimed injuries without resorting to speculation. The Board notes the examiner is being asked to determine whether it is at least as likely as not related to service rather than "actually caused" by service. Further, the examiner did not address or consider the Veteran's lay statements of experiencing pain and swelling related to the bilateral lower extremities since service. The examiner was also asked to state whether the Veteran had manifestations of arthritis at any point during service, and the examiner opined that the record is lacking evidence supporting manifestation of arthritis during service. The examiner, however, did not address or reconcile the Veteran's lay statements of experiencing pain and swelling related to the bilateral lower extremities during service as possible manifestations of arthritis. See Miller v. Wilkie, 32 Vet. App. 249 (2020). Accordingly, this claim is remanded to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Return the entire claims file and this remand to a rheumatologist or other specialist in arthritic conditions. The necessity of an in-person examination is left to the examiner's discretion. The examiner should render an opinion, including rationale, addressing the following: - Whether the Veteran had a bilateral lower extremity disability, excluding rheumatoid arthritis, that clearly and unmistakably (i.e., undebatable) existed prior to service? In so opining, the examiner is directed to address and consider the Veteran's lay statements of experiencing swelling and pain in the ankles for four years prior to service and service treatment records in 1966 referencing the same. The examiner is also directed to address and consider the Veteran's noted leg length discrepancy. - If so, for each disability, whether it was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In so opining, the examiner is directed to address and consider the Veteran's lay statements of experiencing increased pain and swelling in the feet, ankles, and knees during service following marching that has continued since 1966. - If it is determined that the Veteran's bilateral lower extremity disability did not pre-exist service and / or was not aggravated in service, determine whether it is at least as likely as not that each current disability had its onset during service, or is otherwise the result of a disease or injury during service, to include the Veteran's contentions of marching on hard surfaces and STRs noting complaints of swelling and pain the feet, ankles, and knees. In so opining, special attention is directed to the diagnoses of record as well as the Veteran's lay statements regarding symptoms and onset thereof. The examiner is also directed to address and consider the Veterans reports of marching on hard surfaces during service. - Opine whether the Veteran had manifestations of arthritis at any point during active duty service. In so opining, the examiner is directed to address and consider whether the Veteran's symptoms during service including, but not limited to, pain and swelling were manifestations of arthritis. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.