Citation Nr: 21069228 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 14-22 518 DATE: November 17, 2021 REMANDED Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for bilateral heel spurs is remanded. Entitlement to service connection for a heart condition is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1980 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision. The Veteran testified before the undersigned Veterans Law Judge during a September 2015 Board hearing. The Veteran appealed the denial of the claims in this appeal to the United States Court of Appeals for Veterans Claims (Court), where the parties filed a Joint Motion for Partial Remand (JMPR). In March 2020, the Court granted the JMPR, vacating the portion of the Board decision denying entitlement to service connection for a right knee disability, bilateral heel spurs, and mitral valve prolapse, and remanding the case for further proceedings. This case was most recently before the Board in May 2021, where it was remanded for additional development. Unfortunately, the subsequently obtained July 2021 VA medical opinions did not comply with the May 2021 remand directives and thusly, these matters must be remanded again. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a right knee condition is remanded. In the Board's May 2021 remand, new opinions were requested to address both direct and secondary theories of entitlement for service connection for a right knee disability. The remand explicitly noted that, pursuant to the presumption of soundness under 38 C.F.R. § 3.304(b), the Veteran's in-service diagnosis of patellofemoral syndrome/chondromalacia patella of the right knee is to be treated specifically as a condition incurred during service, not as a preexisting condition. However, the July 2021 VA medical opinions did not do this, and instead used the incorrect premise of a preexisting right knee condition to deny all theories of entitlement for the Veteran's claim. As to the theory of direct service connection, the examiner found that because August 1982 service treatment records document that the Veteran had personally reported a pre-service history of right knee pain, that his current right knee disability, diagnosed as arthritis, could not be connected to service. As aforementioned, the presumption of soundness bars this line of reasoning. The Board also notes an inconsistency in the examiner's opinion: In denying a finding of nexus between the Veteran's service and his knee condition, the examiner states that the Veteran is competent to provide a history of his symptoms referring to the Veteran's testimony that he has suffered continuous knee pain since service but he is not competent to diagnose himself with a medical condition related to those symptoms. However, for reasons unclear, the examiner found the Veteran's subjective reports of knee pain prior to service to be adequate for a preexisting diagnosis of patellofemoral syndrome/chondromalacia patella. The examiner does not explain why the Veteran's testimony is determinative in the pre-service instance, but is dismissed in the post-service instance. As to the theories of service connection secondary to the Veteran's service-connected lumbar spine and radiculopathy disabilities, the examiner once again improperly barred entitlement on the basis that the Veteran's condition preexisted service, so it was not related to the lumbar conditions incurred during service. The examiner used this same rationale in both their causation and aggravation opinions, drafting them almost identically. However, the examiner further erred in doing so: Pursuant to the holding made in El Amin v. Shinseki, findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310(b). 26 Vet. App. 136, 140-41 (2013). The examiner used this proscribed type of language in the secondary opinions, concluding that the Veteran's knee condition is "not medically related" to his lumbar spine and radiculopathy conditions, and that the evidence does not support a conclusion that the Veteran's right knee condition is "associated with" the Veteran's lumbar spine and radiculopathy conditions. While this sort of approximating language may be permissible in a causation opinion, it has been explicitly prohibited for use in an aggravation opinion. In addition, the Board found that a piece of crucial evidence has yet to be considered by any VA medical examiners. In a June 2020 appellate brief, the Veteran's representative advanced the argument that chondromalacia of the patella can develop into arthritis of the knee. The brief included a citation to a medical treatise in support of this theory. However, it does not appear that this argument was addressed at any point in the development of the Veteran's claim. Therefore, because of the use of the incorrect factual premise that the Veteran's patellofemoral syndrome/chondromalacia patella preexisted service; the discriminatory weighing and improper dismissal of the Veteran's lay testimony; the use of proscribed language in the aggravation opinion; and the unaddressed medical evidence linking chondromalacia to arthritis, the Board finds that this matter must once again be remanded for a new VA medical opinion. 2. Entitlement to service connection for bilateral heel spurs is remanded. Similar to the right knee opinion, the examiner also erred in drafting the heel spurs secondary service connection opinion by using the approximating language proscribed by the El Amin case. Both the causation and aggravation opinions repeatedly contain statements that the Veteran's lumbar spine and radiculopathy conditions are not "related to" or "associated with" his bilateral heel spurs. In addition, the Board notes that the examiner did not address the July 1984 service treatment records documenting pain in the Veteran's lower back concurrent with use of his right foot. Therefore, because of the remaining unaddressed medical evidence and the use of proscribed language in the aggravation opinion, the Board finds that this matter must once again be remanded for a new VA medical opinion. 3. Entitlement to service connection for a heart condition is remanded. In the Board's May 2021 remand, the Agency of Original Jurisdiction (AOJ) was directed to obtain a new VA medical opinion regarding the Veteran's claimed heart condition. The remand specifically noted that the examiner was to address the Veteran's lay reports that he experiences "symptoms of a heart attack" such as pain in his chest, shortness of breath, and tingling in his arm. This development was initially requested in the March 2020 JMPR; since then, the Veteran's chest pain has been attributed to his service-connected hypertension, but the etiology of the remaining symptoms have yet to be addressed by any VA medical examiner. In the July 2021 examination, the examiner simply regurgitates past evidence denying a current diagnosis of mitral valve prolapse, but does not in any way address the remaining symptoms, nor discuss whether the Veteran may have other conditions besides mitral valve prolapse. The Board also notes that findings from an August 2011 stress test of "a small size, minimally severe area of fixed perfusion defect in the inferior wall of the left ventricle" have not been addressed by any examiner, despite also being recognized in the March 2020 JMPR as evidence to be considered in the development of the Veteran's claim for a heart condition. Therefore, because of the remaining unaddressed symptoms and unaddressed medical records, the Board finds that this matter must once again be remanded for a new VA medical opinion. The matters are REMANDED for the following actions: 1. Obtain a new opinion regarding the Veteran's service connection claim for a right knee disability, preferably with an examiner who has not previously provided an opinion regarding the Veteran's claim. Schedule the Veteran for a new examination only if deemed necessary by the examiner. The selected examiner must provide an opinion addressing whether the Veteran's current right knee disability is at least as likely as not (50 percent probability or greater) the result of an in-service disease or injury, to include his in-service diagnosis of patellofemoral syndrome/chondromalacia patella; or proximately due to, or aggravated by, his service-connected lumbar spine disability and radiculopathy. In the context of direct service connection, if patellofemoral syndrome/chondromalacia patella or a residual thereof is found presently, the examiner must provide a well-reasoned medical explanation for the conclusion that the well-documented in-service condition resolved without further issues. The examiner is advised that the in-service diagnosis of patellofemoral syndrome/chondromalacia patella is conceded as an in-service incurrence under 38 C.F.R. § 3.304(b). If the examiner's opinion treats the condition as preexisting service, the opinion will be deemed inadequate and remanded for a new medical opinion. The examiner should also consider and specifically address the medical treatise cited in the June 2020 appellate brief submitted by the Veteran's representative, advancing the argument that chondromalacia can develop into arthritis. If direct service connection is not established, the examiner must address secondary service connection. The secondary service connection opinion must explicitly address theories of both causation and aggravation separately to be deemed adequate. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. When discussing aggravation, the examiner is asked to avoid phrases such as "not due to," "not caused by," and "not related to" since the United States Court of Appeals for Veterans Claims has held such language is insufficient to address the question of aggravation under 38C.F.R. §3.310(b). The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion, specifically the Veteran's reports of a continuity of symptomatology since his separation from active service. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examiner may not dismiss the Veteran's solely on the basis that they are not recorded in contemporaneous treatment records. The examination report must include a complete rationale for the opinion provided. 2. Obtain a new opinion regarding the Veteran's service connection claim for bilateral heel spurs, preferably with an examiner who has not previously provided an opinion regarding the Veteran's claim. Schedule the Veteran for a new examination only if deemed necessary by the examiner. The selected examiner must address whether the Veteran's bilateral heel spurs are at least as likely as not (50 percent probability or greater) proximately due to, or aggravated by, his service-connected lumbar spine disability and associated radiculopathy. The opinion must explicitly address theories of both causation and aggravation separately to be deemed adequate. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. When discussing aggravation, the examiner is asked to avoid phrases such as "not due to," "not caused by," and "not related to" since the United States Court of Appeals for Veterans Claims has held such language is insufficient to address the question of aggravation under 38C.F.R. §3.310(b). The examiner should also consider and specifically address the July 1984 service treatment records documenting pain in the Veteran's lower back concurrent with use of his right foot. The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examiner may not dismiss the Veteran's solely on the basis that they are not recorded in contemporaneous treatment records. The examination report must include a complete rationale for the opinion provided. 3. Obtain an addendum opinion from a qualified examiner that addresses the Veteran's lay reports of shortness of breath and tingling in his arm, to include a discussion of whether such symptoms are suggestive of or attributable to a current heart condition or are attributable to another condition. If the symptoms are suggestive of or attributable to a current heart condition, the examiner should identify this condition and provide an opinion addressing whether the condition is at least as likely as not the result of an in-service disease or injury. The examiner should also consider and specifically address the August 2011 stress test findings of "a small size, minimally severe area of fixed perfusion defect in the inferior wall of the left ventricle." The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion, specifically the Veteran's reports symptoms of shortness of breath and tingling of the arm. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examiner may not dismiss the Veteran's solely on the basis that they are not recorded in contemporaneous treatment records. (Continued on the next page) The examination report must include a complete rationale for the opinion provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Narnor, Harriyah 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.