Citation Nr: 21073148 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 14-17 489 DATE: December 7, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1983 to June 1991. This appeal stems from an April 2013 rating decision. The Board previously remanded the claim in January 2018, August 2019, and March 2021. On review, the Board again finds that there was no substantial compliance with the Board's remand directives, and as such, an additional remand is necessary prior to analyzing the merits of the claims. See Stegall v. West, 11Vet. App.268 (1998); Barr v. Nicholson, 21Vet. App.303, 312 (2007). Left Knee Disability The Board's recent remand specifically found previous opinions inadequate as those failed to address the Veteran's lay assertions and/or determine whether the left knee disability had its onset during service or manifested to a compensable degree within a year following service discharge. Subsequently, a June 2021 examiner confirmed a diagnosis of left knee arthritis but opined the disability was less likely than not related to service. The examiner reasoned that there was no documentation of a left knee condition during service and separation examination in May 1991 was normal. After the agency of original jurisdiction (AOJ) determined that this opinion did not comply with the remand directives, it requested an addendum opinion, which was provided in August 2021. Nevertheless, in this opinion, the examiner simply disregarded any lay assertions, making a legal determination that due to lack of documented evidence the Veteran's lay assertions are of no probative value. This determination is beyond the scope of the examiner's expertise to opine on medical issues. This is a legal determination the finder of fact needs to make. Here, despite the Veteran's reports during the examination that he had knee problems in service and since separation from service, the examiner provided no weight to these assertions solely due to the lack of documented medical evidence. Accordingly, a new examination with adequate medical opinion is necessary prior to analyzing the merits of this claim. Bilateral Foot Disability In the most recent remand, the Board noted that previous examinations treated the diagnosed bilateral pes planus as a preexisting disability despite the enlistment examination being normal. The Board specifically asked that the examiner address all lay assertions regarding foot pain in service and opine whether any diagnosed right and/or left foot disability had its onset during service or is otherwise related to it. The June 2021 examiner acknowledged previous x-ray evidence of bilateral pes planus but noted that current x-rays only showed hallux valgus. The examiner failed to explain how pes planus resolved or no longer showed any pathology. Regarding hallux valgus, the examiner provided no opinion but simply stated that this was a contradiction of the previous x-rays showing pes planus and that there was no documentation of hallux valgus in the service treatment records. After the AOJ determined that this opinion did not comply with the remand directives, it requested an addendum opinion, which was provided in August 2021. Nevertheless, in this opinion, the examiner simply disregarded any lay assertions making a legal determination that due to lack of documented evidence the Veteran's lay assertions are of no probative value. This determination is beyond the scope of the examiner's expertise to opine on medical issues. This is a legal determination the finder of fact needs to make. Here, despite the Veteran's reports during the examination that he had foot problems during service, the examiner provided no weight to these assertions solely due to the lack of documented medical evidence. Accordingly, a new examination with adequate medical opinion is necessary prior to analyzing the merits of this claim. The matters are REMANDED for the following actions: 1. Provide the Veteran with VA examinations to help determine the likely etiology of the claimed left knee and bilateral foot disabilities. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed left knee and right and/or left foot disabilities. Specifically, for the bilateral foot disability, if the examiner determines a diagnosis of pes planus is not warranted, he/she is asked to reconcile previous 1983 x-rays showing pes planus and explain how those resolved or no longer show any pathology. (b) Elicit from the Veteran the history of all signs and symptoms associated with the claimed left knee and right and/or left foot disabilities during service and since separation from service. (c) For each diagnosed disability, provide an opinion as to whether it is at least as likely as not (a 50 percent probability or higher) that it had its onset during service or is otherwise related to it. A complete rationale should be provided. Please note: lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim and cannot be used as a rationale in explaining why the current disability is not related to service. 2. Thereafter, readjudicate the remanded claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.