Citation Nr: 21074694 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-31 123 DATE: December 16, 2021 REMANDED 1. Entitlement to service connection for a right ankle disability as secondary to service-connected left ankle traumatic arthritis is remanded. 2. Entitlement to service connection for a left knee disability as secondary to service-connected left ankle traumatic arthritis is remanded. 3. Entitlement to service connection for a right knee disability as secondary to service-connected left ankle traumatic arthritis is remanded. REASONS FOR REMAND The Veteran had active service from May 1985 to August 1985 and from October 1987 to April 1990. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2020 Central Office hearing in Washington, D.C. These matters were previously denied by the Board in May 2020. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). Thereafter, in December 2020, the Veteran and the Secretary of VA (parties) agreed to a Joint Motion for Partial Remand (JMR), which was subsequently ordered by the Court. Thereafter, in May 2021, the Board remanded the matters for additional development pursuant to the December 2020 JMR, and an addendum VA opinion was obtained in June 2021. However, as discussed further below, the Board finds that there has not been substantial compliance with its prior remand directives, and an additional remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a right ankle disability as secondary to service-connected left ankle traumatic arthritis is remanded. 2. Entitlement to service connection for a left knee disability as secondary to service-connected left ankle traumatic arthritis is remanded. 3. Entitlement to service connection for a right knee disability as secondary to service-connected left ankle traumatic arthritis is remanded. In the December 2020 JMR, the parties agreed that vacatur of the May 2020 Board decision and remand of these issues was necessary because the Board erred when it did not ensure that VA fulfilled its duty to assist by providing an adequate examination. Specifically, the parties agreed that remand was necessary to obtain clarification from the VA examiner who completed the August 2014 ankle conditions and knee and lower leg disability benefit questionnaires (DBQs). It was noted that while the August 2014 VA examiner broadly stated that there is no causal relationship between the left ankle disability and the right ankle and bilateral knee disabilities, she did not make plain whether an altered gait caused by a service-connected left ankle disability caused or aggravated a right ankle disability, a left knee disability, or a right knee disability, which was described in the November 2014 and March 2019 favorable private opinions. As such, the parties agreed that remand was warranted for clarification from the VA examiner, or for a new VA examination, to address whether the service-connected left ankle disability caused or aggravated a right ankle disability or a left or right knee disability. As noted above, an addendum VA opinion was obtained in June 2021. Following a review of the record, the June 2021 VA examiner concluded that the Veteran's right ankle and bilateral knee conditions are less likely as not due to the service-connected left ankle condition (and at least as likely as not due to the natural aging process and obesity) and that there is no evidence of aggravation beyond natural progress of the conditions due to the service-connected left ankle. The examiner cited a review of medical literature to support that there is an insufficient body of scientific literature for an etiological relationship, through causation or aggravation, between the Veteran's service-connected left ankle disability and the claimed conditions, as none of the medical literature shows that osteoarthritis in one joint spreads to other joints. The examiner acknowledged x-ray evidence of "mild degenerative changes" in both knees from June 2013, which was consistent with the normal aging process, particularly in an obese individual. The examiner stated that among the risk factors for osteoarthritis (OA), age is the most prominent, as the incidence of OA is directly correlated with age. The examiner also noted that obesity is considered an important risk factor for development of OA in weightbearing joints, as studies have shown that compensatory gait alterations are associated with obesity. Significantly, however, the June 2021 VA opinion did not address whether an altered gait caused by a service-connected left ankle disability caused or aggravated a right ankle disability, a left knee disability, or a right knee disability, as described in the prior November 2014 and March 2019 private nexus opinions. As such, the Board finds that the June 2021 VA opinion does not substantially comply with the July 2021 Board remand directives, such that an additional remand is warranted to obtain an adequate addendum opinion. Additionally, given the nature of the Veteran's orthopedic claims based upon a secondary theory due to an altered gait, the Board finds that he should be physically examined in conjunction with the requested medical opinion upon remand. The Board is also mindful of the additional medical evidence added to the claims file in September 2021 subsequent to the July 2021 Board remand. In June 2021, Dr. Mark T. Gould, M.D., provided an additional nexus opinion, in which he noted that he had treated the Veteran's service-connected left ankle over the years, during which time, the Veteran required multiple periods of protected weightbearing with crutches, which put undue strain on his contralateral ankle and bilateral knees. Dr. Gould stated that as the Veteran's posttraumatic left ankle arthritis progressed, he had a very abnormal gait (limping, with decreased stride length and station time on the left lower extremity), which more likely than not led to his protracted bilateral knee and contralateral right ankle arthritis and degenerative changes. Additionally, in September 2021, Dr. Michael Griffith, DPT, reported that the Veteran received physical therapy for his left ankle from November 2020 to March 2021, during which time he expressed right knee pain throughout the plan of care. Dr. Griffith noted that, clinically speaking, many patients after joint replacement express pain on the opposite limb due to overcompensation, or favoring the affected limb, as was the case with the Veteran. He stated that due to the overcompensation, the Veteran's knee pain gradually worsened, which eventually required a total knee replacement in April 2021. This relevant private opinion evidence should also be addressed by the VA examiner upon remand. Finally, the Board is mindful that the Veteran's representative has asserted within an October 2021 brief that the June 2021 VA opinion, rendered by a physician's assistant, is inadequate because the examiner is not shown to have any particular expertise, experience, training, or competence in commenting on orthopedic disorders. Moreover, the representative asserts that the absence of competence renders the examiner's assertions no more probative than the appellant's lay assertions of a nexus between his claimed disabilities and active service and/or his service-connected disabilities. A person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions is able to provide competent medical evidence, whether the person is a doctor, nurse practitioner, or physician's assistant. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (physician's assistant was competent to perform examination). Moreover, the June 2021 VA examiner, as a physician's assistant in the Veterans Health Administration (VHA) system and a Compensation and Pension (C&P) examiner, may be presumed competent by the Board. See Hilkert v. West, 12 Vet. App. 145, 151 (1999) (VA may presume the competence of an examiner, and an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). To the extent the Veteran and his representative challenge the ability of this or any physician's assistant to provide findings regarding the Veteran's orthopedic conditions, there is no indication that any greater level of specialized training is required for such an examination and/or opinion. In any event, as noted above, the Board has already concluded that the June 2021 VA opinion is inadequate on other grounds, and a new examination and opinion will be obtained upon remand. The matters are REMANDED for the following action: Schedule the Veteran for a full, in-person physical examination regarding his claims for service connection for a right ankle and bilateral knee disabilities as being secondary to service-connected left ankle traumatic arthritis. The entire claims file, including a copy of this Remand, should be provided to a qualified VA examiner with education, training, or experience in orthopedics. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran had active service from May 1985 to August 1985 and from October 1987 to April 1990. The Veteran is service connected for left ankle traumatic arthritis. The Veteran contends that the service-connected left ankle traumatic arthritis has caused or aggravated right ankle, right knee, and left knee disabilities. Upon VA examination in August 2014, with clinical findings documented regarding the ankles and the knees, a VA examiner opined that the Veteran's current right ankle disability and bilateral knee osteoarthritis were less likely as not secondary to the service-connected left ankle and at least as likely as not due to the natural aging process and obesity. In support of this opinion, the VA examiner stated that there is no medical evidence of a causal connection between the Veteran's left ankle disability and his right ankle or bilateral knee disabilities, and no research study that shows arthritis in one ankle causes arthritis in the other ankle or in the knees, particularly when the effects of additional factors such as aging, weight gain, and occupational/daily stresses were also considered. The examiner specifically noted that the Veteran's mild degenerative changes in both knees was consistent with aging, and that the Veteran's obesity is considered to be one of the most important risk factors for osteoarthritis in the knees, as numerous medical studies show a strong association between obesity and knee osteoarthritis. See VBMS entry with document type, "C&P Exam," receipt date 08/17/2014, with "#1" in the subject field, at page 22. Private treatment records from November 2014 document the Veteran's complaints of bilateral ankle and bilateral knee pain. The Veteran reported that his ankles hurt him throughout his Army medic career and his knee complaints began in the late 1990s, but denied any specific injury. He noted that since his disability retirement from his Post Office career of 20 years, he had worsening complaints of pain in both knees and ankles. His private physician, Dr. Howard Weiss, D.O., wrote it was his belief that the Veteran's right ankle and bilateral knee interchanges as well as pain are caused by his gait abnormality secondary to severe left ankle posttraumatic arthritis. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," receipt date 03/22/2016. In March 2019, the Veteran's private physician, Dr. Mark Gould, M.D., opined that the Veteran's right ankle and bilateral knee arthritis are more likely a secondary condition to the service-connected left ankle due to the Veteran's gait change. See VBMS entry with document type, "Correspondence," receipt date 04/09/2019. Similarly, in February 2021, Dr. Gould wrote that the Veteran's significant loss of range of motion in the left ankle over the years has adversely impacted his gait and ambulatory status, which resulted in worsening of his bilateral knee and right ankle due to the significant limitation in motion and inability to bear weight through the left ankle. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," receipt date 02/18/2021. A CAPRI entry within the file has VA treatment records from December 2006 to January 2021 with 1265 pages. Within this record that covers approximately 15 years are numerous comments and findings describing the Veteran's gait (more than 100 comments/findings). His gait was described as being within normal limits, labored, limping with pain behavior, having a mild limp, pronated, slow and steady, coordinated and smooth, and mildly antalgic. The finding that his gait was "within normal limits" was documented approximately 50 percent of the time. See VBMS entry with document type, "CAPRI," receipt date 02/04/2021. In June 2021, a VA examiner concluded that the Veteran's right ankle and bilateral knee conditions are less likely as not due to the service-connected left ankle condition (and at least as likely as not due to the natural aging process and obesity) and that there is no evidence of aggravation beyond natural progress of the conditions due to the service-connected left ankle. The examiner cited a review of medical literature to support that there is an insufficient body of scientific literature for etiological relationship, through causation or aggravation, between the Veteran's service-connected left ankle disability and the claimed conditions, as none of the medical literature shows that osteoarthritis in one joint spreads to other joints. The examiner acknowledged x-ray evidence of "mild degenerative changes" in both knees from June 2013, which was consistent with the normal aging process, particularly in an obese individual. The examiner stated that among the risk factors for osteoarthritis (OA), age is the most prominent, as the incidence of OA is directly correlated with age. The examiner also noted that obesity is considered an important risk factor for development of OA in weightbearing joints, as studies have shown that compensatory gait alterations are associated with obesity. See VBMS entry with document type, "C&P Exam," receipt date 06/16/2021, with "DBQ ankle & knee Medical Opinions" in the subject field. Significantly, however, the June 2021 VA opinion did not address whether an altered gait caused by the service-connected left ankle disability caused or aggravated the right ankle disability, the left knee disability, or the right knee disability, as described in the prior November 2014 and March 2019 private nexus opinions. In June 2021, Dr. Mark T. Gould, M.D., provided an additional nexus opinion, in which he noted that he had treated the Veteran's service-connected left ankle over the years, during which time the Veteran required multiple periods of protected weightbearing with crutches, which put undue strain on his contralateral ankle and bilateral knee. Dr. Gould stated that as the Veteran's posttraumatic left ankle arthritis progressed, he had a very abnormal gait (limping, with decreased stride length and station time on the left lower extremity), which more likely than not led to his protracted bilateral knee and contralateral right ankle arthritis and degenerative changes. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," receipt date 09/02/2021, at page 18. Additionally, in September 2021, Dr. Michael Griffith, D.P.T., reported that the Veteran received physical therapy for his left ankle from November 2020 to March 2021, during which time he expressed right knee pain throughout the plan of care. Dr. Griffith noted that clinically speaking, many patients after joint replacement express pain on the opposite limb due to overcompensation, or favoring the affected limb, as was the case with the Veteran. He stated that due to the overcompensation, the Veteran's knee pain gradually worsened, which eventually required a total knee replacement in April 2021. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," receipt date 09/02/2021, at page 2. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. Following a review of the claims file, including the relevant evidence discussed above, the VA examiner is asked to render the following opinions: 1. Right Ankle: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right ankle disability is caused by the service-connected left ankle traumatic arthritis? Please state upon what facts and medical principles and/or medical literature you base this opinion. b) If the answer to (a) is negative, is it as likely as not (a 50 percent probability or greater) that the Veteran's right ankle disability is aggravated by the service-connected left ankle traumatic arthritis? Aggravation is different from causation in that it did not cause the disability but rather caused an increase in severity that is not due to the natural progress of the disability. Please state upon what facts and medical principles and/or medical literature you base this opinion. c) If the answer to (b) is positive with the examiner finding that the service-connected left ankle traumatic arthritis aggravates (causes an increase in severity that is not due to the natural progress of the disability) the right ankle disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the right ankle disability prior to aggravation. If the examiner is unable to establish a baseline for the right ankle disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. 2. Left Knee: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's left knee disability is caused by the service-connected left ankle traumatic arthritis? Please state upon what facts and medical principles and/or medical literature you base this opinion. b) If the answer to (a) is negative, is it as likely as not (a 50 percent probability or greater) that the Veteran's left knee disability is aggravated by the service-connected left ankle traumatic arthritis? Aggravation is different from causation in that it did not cause the disability but rather caused an increase in severity that is not due to the natural progress of the disability. Please state upon what facts and medical principles and/or medical literature you base this opinion. c) If the answer to (b) is positive, and the examiner finds that the service-connected left ankle traumatic arthritis aggravates (causes an increase in severity that is not due to the natural progress of the disability) the left knee disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the left knee disability prior to aggravation. If the examiner is unable to establish a baseline for the left knee disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. 3. Right Knee: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right knee disability is caused by the service-connected left ankle traumatic arthritis? Please state upon what facts and medical principles and/or medical literature you base this opinion. b) If the answer to (a) is negative, is it as likely as not (a 50 percent probability or greater) that the Veteran's right knee disability is aggravated by the service-connected left ankle traumatic arthritis? Aggravation is different from causation in that it did not cause the disability but rather caused an increase in severity that is not due to the natural progress of the disability. Please state upon what facts and medical principles and/or medical literature you base this opinion. c) If the answer to (b) is positive, and the examiner finds that the service-connected left ankle traumatic arthritis aggravates (causes an increase in severity that is not due to the natural progress of the disability) the right knee disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the right knee disability prior to aggravation. If the examiner is unable to establish a baseline for the right knee disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. In rendering the requested opinions 1 3 above, the examiner must specifically consider and discuss the relevant lay and medical evidence of record, including but not limited to the conflicting medical opinion evidence discussed above and the VA treatment records wherein the Veteran's gait was variously described as being within normal limits, labored, limping with pain behavior, having a mild limp, pronated, slow and steady, coordinated and smooth, and mildly antalgic. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chad Johnson, 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.