Citation Nr: 21070314 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 13-30 001 DATE: November 23, 2021 REMANDED Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for a left ankle condition is remanded. Entitlement to service connection for a right hip condition is remanded. Entitlement to service connection for a left hip condition is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1978 to October 1984. These matters were previously remanded by the Board of Veterans' Appeals (Board) in June 2016, February 2018, and May 2021. While the Board regrets the delay involved in remanding this case again, it is also of the opinion that further development is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159. 1. Entitlement to service connection for right and left ankle conditions is remanded. The Veteran seeks service connection for bilateral ankle conditions, which he asserts are related to his active duty service, or alternatively as due to his service-connected disabilities, in particular his service-connected left foot disability. In May 2021, the Board remanded this matter in order to obtain a new VA medical opinion addressing whether the Veteran's current bilateral ankle conditions were caused or aggravated beyond their natural progression by his service-connected conditions, to specifically include his service-connected left foot disability. In July 2021, a VA medical opinion was obtained to assess the etiology of the Veteran's bilateral ankle conditions. Following a review of the record, the examiner opined that the Veteran's bilateral ankle conditions were less likely than not caused by, related to, or aggravated beyond their natural progression by the Veteran's military service or service-connected conditions, to include hallux valgus with metatarsalgia and degenerative arthritis, with painful scars status post left bunionectomy and hammer toe correction. In his rationale, the examiner noted that although the December 2018 examiner did not specifically state that the Veteran's service-connected disabilities did not aggravate his bilateral ankle conditions, the evidence cited in the December 2018 medical opinion is consistent with a lack of nexus or aggravation between the Veteran's bilateral ankle conditions and his service connected disabilities. See July 2021 VA Medical Opinion. Despite the findings noted above, the Board finds that the December 2018 VA medical opinion is based on an inaccurate factual premise. In particular, the December 2018 VA medical opinion, which maintained that the Veteran's bilateral ankle condition was less likely than not due to the Veteran's service-connected left foot condition, was premised on the finding that the Veteran had a normal gait in 1986, 1988, 1993, 1997, 2008, 2009, 2012, and 2016. The Board finds, however, that the December 2018 examiner overlooked numerous treatment records indicating that the Veteran had an abnormal gait. For example, VA treatment records from April 2003, December 2006, December 2007, January 2009, February 2012, and August 2013, described the Veteran's gait as weak, unsteady, antalgic, broad based, and shuffling. See VA Treatment Records received, July 2017, October 2017 and August 2018. As the examiner did not consider or discuss the treatment records indicating that the Veteran had an abnormal gait, the Board finds the December 2018 VA medical opinion, and the July 2021 VA medical opinion which relied on the December 2018 findings, to be based on an inaccurate factual basis and insufficient for rating purposes. Accordingly, the Board finds that remand is warranted for a new VA medical opinion consistent with the directives herein. 2. Entitlement to service connection for right and left hip conditions is remanded. The Veteran seeks service connection for a bilateral hip condition. In May 2021, the Board remanded this matter in order to obtain a new VA medical opinion addressing whether the Veteran's current bilateral hip conditions were caused or aggravated beyond their natural progression by his service-connected conditions, to specifically include his service-connected left foot disability. In July 2021, a VA medical opinion was obtained to address whether the Veteran's bilateral hip conditions were related to his service-connected disabilities. Following a review of the record, the examiner opined that the Veteran's bilateral hip conditions were less likely than not caused by, related to, or aggravated beyond their natural progression by the Veteran's military service or service-connected conditions, to include hallux valgus with metatarsalgia and degenerative arthritis, with painful scars status post left bunionectomy and hammer toe correction. In his rationale, the examiner noted that although the December 2018 examiner did not specifically state that the Veteran's service-connected disabilities did not aggravate his bilateral hip conditions, the evidence cited in the December 2018 medical opinion is consistent with a lack of nexus or aggravation between the Veteran's bilateral hip conditions and his service connected disabilities. See July 2021 VA Medical Opinion. Despite the findings noted above, the Board finds that the December 2018 VA medical opinion is based on an inaccurate factual premise. In particular, the December 2018 VA medical opinion, which maintained that the Veteran's bilateral hip condition was less likely than not due to the Veteran's service-connected left foot condition, was premised on the finding that the Veteran had a normal gait in 1986, 1988, 1993, 1997, 2008, 2009, 2012, and 2016. Additionally, the December 2018 examiner held that the Veteran's bilateral hip condition was less likely than not incurred from left hip pain in July 1983. As part of his rationale, the examiner again cited the fact that various VA examinations determined that the Veteran had a normal gait. See December 2018 VA Medical Opinion. The Board finds, however, that the December 2018 examiner overlooked numerous treatment records indicating that the Veteran had an abnormal gait. For example, VA treatment records from April 2003, December 2006, December 2007, January 2009, February 2012, and August 2013, described the Veteran's gait as weak, unsteady, antalgic, broad based, and shuffling. See VA Treatment Records received, July 2017, October 2017, August 2018. Based on the foregoing, the Board finds that both the December 2018 VA medical opinion, and the July 2021 VA medical opinion which cited the December 2018 opinion in its rationale, are insufficient for rating purposes as they are based upon an inaccurate factual basis. Accordingly, remand is warranted for a new VA medical opinion consistent with the directives herein. The matters are REMANDED for the following actions: 1. With the Veteran's assistance, obtain any outstanding records of pertinent medical treatment from VA or private health care providers. All reasonable attempts to obtain such records should be made and documented. 2. Following the record development above, obtain a VA medical opinion from an appropriate examiner to assess the etiology of the Veteran's current bilateral ankle conditions. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner. Based on a review of the evidence of record, the examiner should respond to the following: (a.) The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral ankle conditions had their onset in, or are otherwise related to his active duty service, to include the November 1981 and July 1983 in-service ankle injuries. (b.) The examiner should opine as to whether it is as least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral ankle conditions were caused or aggravated by his service-connected left foot disability. In rendering the above opinions, the examiner is instructed to specifically consider and discuss the April 2003, December 2006, December 2007, January 2009, February 2012, and August 2013 VA treatment records, which indicate that the Veteran had an abnormal gait. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Following the record development above, obtain a VA medical opinion from an appropriate examiner to assess the etiology of the Veteran's current bilateral hip conditions. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner. Based on a review of the evidence of record, the examiner should respond to the following: (a.) The examiner must opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral hip conditions had their onset in, or are otherwise related to his active duty service, to include left hip pain reported as due to the July 1983 left ankle injury. (b.) The examiner must opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral hip conditions were caused or aggravated by his service-connected left foot disability. In rendering the above opinions, the examiner is instructed to specifically consider and discuss the May 2008 VA treatment record suggesting that the Veteran's service-connected left foot disorder may have caused a bilateral hip disorder. Additionally, the examiner is instructed to specifically consider and discuss the April 2003, December 2006, December 2007, January 2009, February 2012, and August 2013 VA treatment records, which indicate that the Veteran had an abnormal gait. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.