Citation Nr: 21073432 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 12-14 133 DATE: December 8, 2021 ORDER Entitlement to service connection for bilateral chondromalacia patella is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's bilateral chondromalacia patella is a consequence of altered gait caused by his service-connected bilateral achilles tendonitis. CONCLUSION OF LAW Bilateral chondromalacia patella is proximately due to or the result of service-connected disease or injury. 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1977 and April 1977. The Veteran's claims have a long procedural history including multiple Board remands, most recently in June 2021. The Board denied the Veteran's claims in a February 2018 decision. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In November 2018, the Court issued an order granting an October 2018 Joint Motion for Partial Remand (JMPR), remanding the claim to the Board for further action. In December 2013, the Veteran and his spouse testified at a video conference hearing. The Veterans Law Judge (VLJ) who conducted that hearing is no longer employed at the Board. The Veteran was informed of this development in a November 2020 letter and was offered the opportunity to have an additional Board hearing before a different VLJ. The Veteran has not responded to this letter and did not requested a hearing after the June 2021 Board remand. Therefore, the Board will proceed without a new hearing. In addition to the issues addressed herein, the issue of entitlement to service connection for an acquired psychiatric disorder was remanded in June 2021. However, the Agency of Original Jurisdiction is still developing this issue and has not issued a recent supplement statement of the case that addresses this issue. Therefore, the Board will proceed without addressing entitlement to service connection for an acquired psychiatric disorder. 1. Entitlement to service connection for bilateral chondromalacia patella The Veteran contends he has a bilateral knee disability due to service-connected disease or injury, particularly his bilateral achilles tendonitis. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. As the Veteran contends, and the evidence supports, his bilateral knee disability is due to service-connected disease or injury, the Board will not address service connection as directly related to service. A review of the record reveals the Veteran has bilateral chondromalacia patella. See private treatment records from October 1, 2007 (impression from MRI of right knee includes moderate chondromalacia at the medial femoral condyle) and November 2, 2007 (complaining of left knee pain too); November 9, 2010 VA treatment record (impression from MRI of left knee includes mild chondromalacia of inferior patella and medial compartment); February 2020 VA knee examination report; but see August 2021 VA knee examination report. "Chondromalacia patella is defined as 'the premature degeneration of the patellar cartilage, the patellar margins are tender so that pain is produced when the patella is pressed against the femur.'" Odiorne v. Principi, 3 Vet. App. 456, 458 (1992) (quoting Dorland's Illustrated Medical Dictionary 326 (27th ed. 1988)). The record contains multiple opinions on the relationship between the Veteran's bilateral chondromalacia patella and his service-connected bilateral achilles tendonitis. Regarding the Veteran's knee pain, a February 2010 VA examiner stated, "I feel like it is not caused by, or the result of, his Achilles tendonitis. There is no objective reasoning to back this and per his history these complaints came on at the same time." The examiner noted the Veteran reported his knee pain began in 1977. However, in statements before and after this examination the Veteran has reported his knee pain began well after separating from service and is related to his achilles tendonitis. See, e.g., March 26, 2008 pain questionnaire (right knee pain began in September 2007), December 2009 claim for benefits (seeking secondary service connection), May 2012 substantive appeal (contending pain in achilles tendon has altered gait "over time" and led to problems in knees, hips and back) and August 2021 VA knee examination report (onset in 1990s). Furthermore, the Veteran began receiving treatment for knee pain in 2007. Therefore, it is unclear if this reference to 1977 was merely a misstatement, which the examiner relied upon, as it is clear from the record the Veteran sought treatment beginning in 2007 and is seeking service connection on a secondary basis, rather than on a direct basis. Nevertheless, evidence received since this opinion supports a relationship between the Veteran's bilateral chondromalacia patella and his bilateral achilles tendonitis. The Veteran attended a VA knee examination in January 2020. As noted in our prior remand, the examiner appears to have render a positive nexus opinion for service connection on a secondary basis, but part of the opinion was missing. Because of the missing language, the Board remanded to obtain the full opinion. However, the Agency of Original Jurisdiction instead obtained a new medical opinion. Nevertheless, upon further review of the January 2020 examiner's report, and when resolving doubt in favor of the Veteran, the Board finds there is adequate information in the examiner's report to rely on the examiner's opinion. On the January 2020 examiner's February 2020 opinion report, the examiner checked boxes indicating both a positive and negative secondary nexus opinion regarding whether a claimed condition is proximately due to or the result of a service-connected condition. See February 2020 opinion report, page 4. The examiner went on to provide negative nexus opinions with regards the Veteran's back claim. As the examiner checked boxes providing both a positive and negative nexus opinion, and subsequently provided negative nexus opinions and rationale regarding the Veteran's low back disability claim, the Board resolves doubt in favor of the Veteran in finding that the checked positive opinion applied to the Veteran's bilateral knee claim. The examiner then went on to discuss the Veteran's bilateral knee claim under "Rationale:", including noting relevant history. The opinion rationale appears to have been cut off mid-sentence on the report, as the examiner wrote, "Think of overcompensation as the exertion of effort beyon (sic)". See February 2020 opinion report, page 6. Although this portion of the rationale appears to be missing, the examiner also provided an opinion and rationale in the secondary service connection portion of the report related to aggravation. Here the examiner explained what bilateral chondromalacia patella is and that it "is caused by overcompensation to the abnormal gait secondary to the service connected Achilles tendonitis." See February 2020 opinion report, page 6 (emphasis added). When reading the examiner's opinions and rationales together, the Board find's the examiner opined the Veteran's bilateral chondromalacia patella is proximately due to or the result of his service-connected bilateral achilles tendonitis. While this second opinion is found in the aggravation portion of the report, the examiner used causal language consistent with a "proximately caused by" opinion. Furthermore, in light of the extensive negative nexus opinions and rational related to the Veteran's back, it is unclear from the first proximate cause opinion rationale whether the examiner's opinion was just cut off, or the examiner merely ran out of space due to technical limitations, which could have led to using space elsewhere on the report. As noted above, the Agency of Original Jurisdiction (AOJ) obtained an additional opinion, in August 2021. Similarly, the clinician's negative nexus opinion was purportedly based on a review "of the veteran's medical records". Examiners should consider all relevant evidence, including prior VA examination reports and lay statements of record. Here, this was not done. Furthermore, the examiner's opinion was also based in part on finding a lack of left knee condition on examination. This is inconsistent with other evidence of record, including diagnostic imaging, which the examiner did not address. Moreover, the clinician stated, "there is no known link between knee condition and Achilles conditions." However, the Veteran's theory, that an altered gait due to achilles tendonitis caused his knee conditions, was not addressed, nor was the January 2020 examiner's opinion report which supports such a theory. Although there is no reasons-or-bases requirement imposed on examiners, examiners must support their conclusions with an analysis that the Board can consider and weigh against contrary opinions. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, the August 2021 examiner did not do so, and finds the clinician's opinions to have little probative value. In light of the above, and when resolving doubt in favor of the Veteran, the Board finds the January 2020 examiner's opinions to be the most probative of record. Furthermore, when resolving doubt in favor of the Veteran, the Board finds his bilateral chondromalacia patella is proximately due to a service-connected disease or injury, namely his bilateral achilles tendonitis. Accordingly, service connection for bilateral chondromalacia patella is granted. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Board remanded the Veteran's low back disability claim for adequate opinions regarding secondary service connection. The AOJ obtained opinions in August 2021. However, like with the Veteran's knee claim, the AOJ improperly limited the questions to whether the Veteran's "medical records support" the Veteran's claim. Similarly, the August 2021 examiner's negative nexus opinions appear to be limited to a review "of the veteran's medical records", though this is questionable at best as relevant treatment records were not addressed by the examiner. Notably, the examiner's opinions were based in part on a lack of a back condition found during the August 2021 examination. See August 2021 opinion report, page 5, "Answer Question" 4 and 5 (providing negative secondary nexus opinion due to "no current back condition on exam"). However, the examiner did not address relevant treatment records, including diagnostic imaging that establishes the Veteran has degenerative disc disease (DDD). See, e.g., March 19, 2013 VA treatment record (lumbar spine MRI findings of DDD and bulging disc); see also February 2020 examination report (examiner citing March 2013 MRI findings when identifying diagnoses; also finding limitations on range of motion). The Board emphasizes that a current disability exists even if it resolves during the pendency of a claim. In light of the above, the Board finds remand is warranted for additional opinions. 2. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. Finally, because a decision on the remanded issue of entitlement to service connection for a low back disability could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. Similarly, effecutuation of the herein grant of service connection for bilateral chondromalacia patella could impact a decision on the issue of entitlement to a TDIU. A remand of the claims for a TDIU is required. The matters are REMANDED for the following action: 1. Obtain addendum opinions from an appropriate clinician regarding whether any low back disability is at least as likely as not proximately due to service-connected disease or injury, or has been aggravated by service-connected disease or injury, to include but not limited to altered gait due to achilles tendonitis or knee disability. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gregory T. Shannon, 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.