Citation Nr: 21075005 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-35 295A DATE: December 17, 2021 REMANDED Entitlement to service connection for a left knee disability, to include arthritis, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a right knee disability, to include arthritis, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a left ankle disability, to include arthritis, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a right ankle disability, to include arthritis, to include as secondary to service-connected disabilities, is remanded. Entitlement to a disability rating in excess of 10 percent for residuals of stress fracture of the left tibia is remanded. Entitlement to a disability rating in excess of 10 percent for residuals of stress fracture of the right tibia is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from July 1974 to September 1977. These matters come before the Board of Veterans' Appeals (Board) from an October 2013 Rating Decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran seeks entitlement to service connection for a left knee disability, right knee disability, left ankle disability, and right ankle disability; entitlement to higher disability ratings for service-connected stress fractures of the left tibia and right tibia; as well as entitlement to a TDIU. Unfortunately, the Board finds that these issues must be remanded for additional development before they can be adjudicated on the merits. 1. Entitlement to service connection for a left knee disability, right knee disability, left ankle disability, and right ankle disability The Veteran seeks entitlement to service connection for a left knee disability, right knee disability, left ankle disability, and right ankle disability. These issues were previously before the Board in August 2021, at which time they were remanded for additional development. Specifically, the Board's August 2021 Remand directed that opinions be obtained that addressed whether the bilateral knee and bilateral ankle disabilities were related to service, manifested within one year of service, were caused by a service-connected disability, and/or were aggravated by a service-connected disability. Separate opinions with rationale were to be provided for each theory of entitlement. Pursuant to the Board's August 2021 Remand, the Veteran was provided with a VA Knee and Lower Leg examination in September 2021, at which time he was diagnosed as having patellofemoral pain syndrome and degenerative arthritis of the bilateral knees. The Veteran was also provided with a VA Ankle Conditions examination in September 2021, at which time he was diagnosed as having bilateral ankle bursitis. However, the VA examiner opined that these diagnosed disabilities were less likely than not proximately due to or the result of a service-connected condition. The examiner further stated that there was no evidence of ankle pain within one year of service, and that there was no evidence of complaints of knee pain within one year of service, with a normal exam in 2009 in which there was no tenderness over the bilateral shins and his knee range of motion from zero to 130 degrees. In support of this conclusion, the VA examiner explained that: The SM is SC for R tibia stress fracture. This injury occurred in service. However, during this 2009 VA exam noted in his 8/17/09 rating decision, the examiner noted a B knee ROM of 0-130 and no discomfort over the tibia areas. This examination was 12 years ago and although his ROM for his ankles and knees have become more limited and he currently has pain in these joints, it is unlikely that these joints have been affected due to his stress fractures. In fact, it is more likely that his ankle and joint pain is due to age, wear and tear, obesity as well as his inflammatory bowel disease (IBO). A 1/9/98 (p2820/2902) medical note states that the SM's crohn's (IBO) likely began in 1990-91 with bloody diarrhea. It also notes that when he is suffering from diarrhea, he has discomfort particularly in "low back hips and knees. This rationale was repeated verbatim by the examiner for every claimed disability under every theory of entitlement. Additionally, the examiner stated that, "There is no aggravation of SC condition as the SM had a normal exam in 2009 in which there was no tenderness over B shins and his knee ROM was 0-130." The Board finds the opinions and rationales offered by the September 2021 VA examiner to be inadequate, as argued by the Veteran's representative in his November 2021 Post-Remand Brief. Barr v. Nicholson, 21 Vet. App. 303 (2007). Although the VA examiner conceded that the Veteran's range of motion in his ankles and knees had become more limited and that he currently experienced pain in these joints, the examiner simply concluded that it was unlikely that these joints had been affected by his service-connected tibia stress fractures without providing any rationale for this conclusion. Rather, the VA examiner opined that it was more likely that any ankle and/or joint pain was due to age, wear and tear, obesity, and inflammatory bowel disease, again without providing any rationale for this conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). In addition, the examiner noted the Veteran is service-connected for a right tibia stress fracture and makes almost no mention of the Veteran's service-connected left tibia fracture. Finally, the examiner noted that there is no evidence that the Veteran's knee pain onset within one year of service, despite noting in the Medical History section of the examination report that the Veteran reported his knees began to ache in 1978. As such, these matters must be remanded so that adequate VA opinions as to the likely etiologies of the Veteran's left knee, right knee, left ankle, and right ankle disabilities can be obtained. Further, the Board emphasizes that an opinion based on the absence of treatment records without consideration of a veteran's competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006) (holding that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). 2. Entitlement to increased disability ratings for residuals of stress fractures of the left tibia and the right tibia, as well as entitlement to a TDIU The Veteran also seeks entitlement to increased disability ratings for residuals of stress fractures of the left tibia and the right tibia, as well as entitlement to a TDIU. The Board finds that, since a decision on the remanded issues of entitlement to service connection for bilateral knee disabilities could significantly impact a decision on the issues of entitlement to increased ratings for residuals of bilateral tibia stress fractures, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Specifically, the requested examination of the knees encompasses an examination of the lower legs, and as such, the examination may show additional symptoms related to these claims. Indeed, in his November 2021 Post-Remand Brief, the Veteran's representative argued that the Veteran's knee and ankle disabilities were inextricably intertwined with his impairments of the tibia and fibula, and that disabilities were feeding off of each other, making the conditions worse. Therefore, a remand of the claims for increased ratings for residuals of bilateral tibia stress fractures is required. Similarly, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to a TDIU, this issue is also inextricably intertwined. As such, a remand of the claim for a TDIU is also required. See Harris, supra. The matters are REMANDED for the following action: 1. Forward the entire claims file, including a copy of this Remand, to a VA examiner (other than the examiner who prepared the September 2021 examination reports) to determine the probable etiologies of the Veteran's diagnosed patellofemoral pain syndrome and degenerative arthritis of the bilateral knees. If an additional examination is necessary to provide an etiological opinion, then such an examination should be provided. All pertinent evidence of record should be made available to and reviewed by the examiner. For each diagnosed disability of the bilateral knees (to include patellofemoral pain syndrome and degenerative arthritis), the examiner must indicate whether it is at least as likely as not (50 percent or greater probability) that the disability is due to service or manifested within one year of separation from service. The examiner must address the Veteran's statements to the September 2021 examiner that his knee pain began in 1978. If the foregoing is negative, then the examiner must indicate whether it is at least as likely as not (50 percent or greater probability) that the disability was caused by the Veteran's service-connected residuals of bilateral tibia stress fractures, to include any abnormal gait and/or propulsion resulting from the tibia disabilities. If the foregoing is negative, then the examiner must indicate whether it is at least as likely as not (50 percent or greater probability) that the disability has been aggravated (worsened) by his service-connected residuals of bilateral tibia stress fractures, to include any abnormal gait and/or propulsion resulting from the tibia disabilities. In addressing secondary service connection, the examiner must provide separate opinions and rationale addressing causation and aggravation. Aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent" worsening of the nonservice connected disability. A complete rationale must be provided in support of each opinion provided. If any opinion cannot be provided without resorting to speculation, then the examiner must explain why this is so. In rendering the requested rationale, the examiner must explicitly reconcile his/her opinion with the Veteran's lay statements of regarding the nature and progression of his bilateral knee symptomatology. If the clinician has any reason to doubt the Veteran's self-reported history of bilateral knee symptomatology, then the clinician must explain why. 2. Forward the entire claims file, including a copy of this Remand, to a VA examiner (other than the examiner who prepared the September 2021 examination reports) to determine the probable etiologies of the Veteran's diagnosed bursitis of the bilateral ankles. If an additional examination is necessary to provide an etiological opinion, then such an examination should be provided. All pertinent evidence of record should be made available to and reviewed by the examiner. For each diagnosed disability of the bilateral ankles (to include bilateral ankle bursitis), the examiner must indicate whether it is at least as likely as not (50 percent or greater probability) that the disability is due to service or manifested within one year of separation from service. If the foregoing is negative, then the examiner must indicate whether it is at least as likely as not (50 percent or greater probability) that the disability was caused by the Veteran's service-connected residuals of bilateral tibia stress fractures, to include any abnormal gait and/or propulsion resulting from the tibia disabilities. If the foregoing is negative, then the examiner must indicate whether it is at least as likely as not (50 percent or greater probability) that the disability has been aggravated (worsened) by his service-connected residuals of bilateral tibia stress fractures, to include any abnormal gait and/or propulsion resulting from the tibia disabilities. In addressing secondary service connection, the examiner must provide separate opinions and rationale addressing causation and aggravation. Aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent" worsening of the nonservice connected disability. A complete rationale must be provided in support of each opinion provided. If any opinion cannot be provided without resorting to speculation, then the examiner must explain why this is so. In rendering the requested rationale, the examiner must explicitly reconcile his/her opinion with the Veteran's lay statements of regarding the nature and progression of his bilateral ankle symptomatology. If the clinician has any reason to doubt the Veteran's self-reported history of bilateral ankle symptomatology, then the clinician must explain why. 3. Thereafter, readjudicate all of the Veteran's claims remaining on appeal. If any benefit sought on appeal remains denied, then provide the Veteran and his representative with a Supplemental Statement of the Case and allow an appropriate period for response. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.