Citation Nr: 21069985 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 11-12 911 DATE: November 22, 2021 REMANDED Entitlement to service connection for chronic arthritis of the joints (other than the cervical spine and great toes), to include left and right knee arthritis and associated right knee instability is remanded. Entitlement to service connection for a bilateral great (big) toe disability, to include arthritis, hallux valgus, and hallux rigidus is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to August 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal of the April 2009 and July 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before a Veterans Law Judge in September 2014. The Veterans Law Judge, who conducted the hearing, is not currently available to participate in the case. The hearing transcript is associated with the claims file. The Veteran was provided notice of the Veterans Law Judge's unavailability in September 2021. The September 2021 notice requested a response within 30 days if the Veteran desired another hearing. In October 2021, the Veteran submitted through his representative a response indicating that he did not wish to appear at another Board hearing. In June 2015 and April 2017, the Board remanded this matter for more development. In August 2018, the Board denied the claims on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a June 2019 Joint Motion for Partial Remand (Joint Motion), in July 2019 the Court vacated the part of the Board's decision which denied service connection chronic arthritis of the joints, other than the cervical spine and great toes, to include as secondary to service-connected hepatitis C and diabetes mellitus type II and remanded the appeal to the Board for appropriate action in accordance with the Joint Motion. In August 2018 the Board remanded this matter for more development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). 1. Entitlement to service connection for chronic arthritis of the joints (other than the cervical spine and great toes), to include left and right knee arthritis and associated right knee instability is remanded. 2. Entitlement to service connection for a bilateral great (big) toe disability, to include arthritis, hallux valgus, and hallux rigidus is remanded. The Veteran contends that his chronic arthritis of the joints (other than the cervical spine and great toes), to include left and right knee arthritis and associated right knee instability are related to service. The Veteran contends that his bilateral great (big) toe disability, to include degenerative arthritis, hallux valgus, and hallux rigidus disabilities are related to service. In the alternative, the Veteran contends that his knee and feet disabilities are secondary to his service-connected disabilities. In October 2020, the Veteran was afforded a VA examination for his feet. The Veteran was diagnosed with hallux rigidus in 2007 and hallux valgus and degenerative arthritis in 2008. The Veteran reported that he ran a lot during active service and that he had several injuries from falling in ditches in Vietnam. The Veteran reported that he was seen by a podiatrist and it was recommended that he had a fusion of the joint, but that he declined because his blood sugar was high in 2013, as he is a diabetic. The examiner noted that the Veteran was diagnosed with hallux valgus by x-ray in 2008. The examiner opined that the Veteran's hallux rigidus, hallux valgus and degenerative arthritis disabilities were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected leg pain. The examiner opined that the Veteran's hallux rigidus, hallux valgus and degenerative arthritis disabilities were not at least as likely as not aggravated beyond its natural progression by the Veteran's diabetes mellitus Type II and hepatitis C service-connected conditions. In October 2020, the Veteran was afforded a VA examination for his bilateral knee condition. The Veteran was diagnosed with degenerative arthritis in the right knee in 2005 and 2016 for the left knee. The Veteran reported that he ran a lot during active service and played football and basketball that put stress on his knees. He also reported jumping into ditches which caused pain on both of his knees. The examiner opined that the Veteran's bilateral knee degenerative arthritis disability was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected leg pain. As to the rationale, the examiner explained that, There is no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individuals gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. This level of severity is not supported based on record review, history or exam. It is not unusual for two joints to share properties in the same person, but one joint disease does not 'spread' to another or cause damage to it. The examiner opined that the Veteran's bilateral degenerative arthritis of the knees and right knee instability is less likely than not aggravated beyond its natural progression by service-connected diabetes mellitus type II and hepatitis C. As to the rationale, the examiner explained that, "degenerative arthritis of the bilateral knee with right knee instability as symptom is a progressive disease of the joint representing failed repair of joint damage which is caused by repetitive stresses from physical activities, aging, family history of degenerative diseases and defective joints or cartilage at birth." The examiner indicated that the condition would continue to worsen unless the Veteran had surgery to improve the condition. In July 2021, the Veteran was afforded a VA examination for his knee and feet disabilities. The examiner diagnosed the Veteran with knee joint osteoarthritis. The foot examination revealed a diagnosis of arthritis in the big toes and gout. The Veteran reported no specific injury or trauma. However, the Veteran reported in-service treatment for knee pain. The Veteran reported that he has a couple of gout flares per month that occur primarily in the right foot around his great toe. The examiner opined that osteoarthritis is a common ailment of aging and is degenerative in description. Gout is inflammatory in scope and has definitive etiology of overproduction/under clearance of uric acid. The examiner stated that given no medically recognizable correlation in pathologies, no nexus or aggravation in these conditions is reasonable. The July 2021 VA examiner provided conclusionary statements without providing any meaningful analysis. In addition, the examiner did not reconcile the fact that the Veteran was diagnosed with hallux valgus by x-ray in 2008, and also has had a previous diagnosis of hallux rigidus. The examiner made generalized statements that failed to discuss the Veteran's specific medical conditions, or his lay testimony. The examiner did not explain why the Veteran's extensive running, injuries from jumping/falling in ditches, and injuries playing football and basketball during service would not result in arthritis after service. In addition, the examiner did not address the fact that the Veteran was in service for 30 years. The Board cannot make a fully informed decision on the issue of the Veteran's knee and feet disabilities because the medical opinions provided were inadequate. Thus, a remand is required prior to adjudicating these claims. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his bilateral knee and feet disabilities. The clinician must be provided with and review the entire claims file, to include a copy of this remand. Following an examination and review of the evidence of record, to include the Veteran's lay statements, the clinician should opine: (a.) Is it at least as likely as not (at least a 50 percent possibility) that the Veteran's bilateral knee disability had its onset during or is otherwise etiologically related to the Veteran's active service? (b.) Is it at least as likely as not (at least a 50 percent possibility) that the Veteran's degenerative arthritis, hallux valgus, or hallux rigidus disabilities had their onset during or is otherwise etiologically related to the Veteran's active service? In addressing a and b above, the examiner must note and address the Veteran's contention that he ran extensively during service; injured himself jumping/falling in ditches; was injured playing football and basketball during service; and served for approximately 30 years. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. (c.) Whether the Veteran's bilateral knee disability, is at least as likely as not (50 percent or greater probability) (1) proximately due to any of his service-connected disabilities (2) aggravated beyond its natural progression by any of his service-connected disabilities. (d.) Whether the Veteran's bilateral degenerative arthritis, hallux valgus, or hallux rigidus disabilities, are at least as likely as not (50 percent or greater probability) (1) proximately due to any of his service-connected disabilities (2) aggravated beyond its natural progression by any of his service-connected disabilities. (Continued on the next page) 2. Then, the Veteran's claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.