Citation Nr: 21075572 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-34 197 DATE: December 20, 2021 ORDER Entitlement to service connection for a left knee disability, to include as secondary to the service-connected right foot disability, is denied. Entitlement to service connection for a left foot disability, to include as secondary to the service-connected right foot disability, is denied. REMANDED Entitlement to service connection for a right knee disability, to include rheumatoid arthritis with degenerative joint disease (DJD), and as secondary to the service-connected right foot disability is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to the service-connected right foot disability, is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to the service-connected right foot disability, is remanded. FINDINGS OF FACT 1. The Veteran's left knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, or the service-connected right foot disability. 2. The Veteran's left foot disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, or the service-connected right foot disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability, to include as secondary to the service-connected right foot disability, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a left foot disability, to include as secondary to the service-connected right foot disability, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1983 to February 1984 with additional Reserve service from November 26, 1990 to November 30, 1990. This matter was previously remanded by the Board of Veteran's Appeals (Board) in February 2020 and January 2021 for further evidentiary development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for 90 days or more of active service, service incurrence shall be presumed for certain chronic diseases, including arthritis, if the disease manifested to a compensable degree within one year from the date of separation from active service. While the disease does not need to be diagnosed within the presumptive period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disability, will be service connected. 38 C.F.R. § 3.310 (b). Thus, service connection is permitted not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation by a service-connected disability. Left Knee and Left Foot Presumptive Service Connection As an initial matter, the Veteran has a current diagnosis of left knee osteoarthritis and left foot degenerative arthritis and plantar fascitis. She has not asserted that such conditions manifested to a compensable degree within one year after her separation from active service. During service, she does not allege to have experienced any left knee or left foot symptoms. The first evidence of left knee pain occurred in October 2010 and of left foot pain in December 2013. Also, she was not diagnosed with a left knee disability until 2016, and a left foot disability was diagnosed in 2013many years after her separation from active duty. As such, presumptive service connection is not warranted for these conditions. Thus, service connection can only be granted on a direct or secondary basis. Direct Service Connection The Board finds that the criteria to establish direct service connection for the Veteran's left knee and left foot disabilities have not been met. Service treatment records do not show that she made complaints of, or received treatment for, either her left knee or her left foot. Post service, there are no treatment records pertaining to the Veteran's left knee until October 2010 when she complained of bilateral knee pain. Treatment records were silent pertaining to the Veteran's left foot condition until December 2013 when she received the relevant diagnoses. In this regard, while not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran was most recently afforded VA examination for her left knee and left foot disabilities in May 2021. In provided negative etiological opinions, the examiner stated that it was less likely than not that the claimed left knee and left foot conditions were caused by the Veteran's active service, to include the November 1990 incident in which a cabinet fell on top of the Veteran's right foot. Specifically, the examiner opined negatively stating that there are no records of left knee or left foot conditions in, or within close proximity to, the Veteran's active service. Further, the November 1990 incident involved the right foot only, and there is no mention of left knee or left foot pain. The examiner noted that the evidence did not show symptoms of left knee pain until 2010 when treatment records indicated left knee pain. Likewise, left foot pain was not noted until 2013, when the Veteran was diagnosed with degenerative arthritis and plantar fasciitis of her left foot. The examiner concluded that, because of these gaps in time, it is not likely that the Veteran's current left knee or left foot disabilities are related to her active duty. Instead, the examiner related these conditions to the Veteran's obesity. Therefore, the Board finds that there is no medical evidence of record which supports direct service connection for the Veteran's left knee or left foot disabilities. The Board acknowledges that lay persons may be competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the etiology of knee and foot disabilities is a complex medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has carefully considered the lay contentions of record suggesting that the Veteran's left knee and left foot disabilities are related to her service, but has not uncovered any credible medical evidence which supports such a connection, and the Veteran lacks the medical expertise to determine competently the etiology of this disability. Given the above, the Board finds that the Veteran's left knee and left foot disabilities were not shown as chronic in service; continuity of symptomatology is not established; and the disabilities are not otherwise etiologically related to an in service injury or disease. As such, direct service connection for the left knee and left foot disabilities is not warranted. Secondary Service Connection The Veteran also asserts that her left knee and left foot disabilities are secondary to her service-connected right foot disability, characterized as residuals of a fracture of the right distal fabular sesamoid. Specifically, she argues that her left knee and left foot disabilities are due to leaning on her left side to take away from pain exhibited from her right foot disability. The May 2021 examiner opined that the medical evidence does not support the claim that the Veteran's left knee and left foot disabilities are proximately due to, the result of, or aggravated by her service-connected right foot disability. The examiner explained that there is no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5 centimeters so that the individuals gait pattern has been altered to the extent that there is an obvious Trendelenburg gait. The examiner found that this level of severity is not supported based on the record, history, or examination. Instead, the examiner stated that it was more likely that the Veteran's left knee and left foot disabilities were caused by her obesity. Given the above, the Board finds that the medical evidence of record weighs against secondary service connection for the Veteran's left knee and left foot disabilities. As noted above, the Board acknowledges that lay persons may be competent to provide opinions on some medical issues. Kahana, 24 Vet. App. 428. However, the etiology of knee and foot disabilities is a complex medical determination outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d 1372. The Board has carefully considered the Veteran's lay contention that her left knee and left foot disabilities are secondary to her service-connected right foot disability, but the Veteran lacks the medical expertise to determine competently the etiology of this disability. Given the above, the Veteran's left knee and left foot disabilities were not shown to be proximately due to, the result of, or aggravated by her service-connected left knee disabilities. Accordingly, service connection for left knee and left foot disabilities, to include as secondary to service-connected right foot disability, is not warranted. As the preponderance of the evidence is against the claim on appeal, it must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND After carefully considering this matter, and for reasons expressed immediately below, the Board finds that the claims for service connection for right knee and bilateral ankle disabilities must again be remanded for further development. The Board regrets the delay associated with this remand but finds that a remand is necessary to ensure that the Veteran is accorded full compliance with VA's statutory duty to assist. Service Connection Right Knee and Right Ankle Disabilities The January 2021 Board decision remanded these matters, in part, for a new VA examination to ascertain the nature and etiology of the Veteran's claimed right knee and right ankle disabilities. The Veteran underwent VA examinations in May 2021. Unfortunately, the Board finds these examinations to be inadequate. On the question of direct service connection for each of these claimed conditions, the examiner provided opinions stating that the claimed conditions were less likely than not incurred in, or caused by, active service to include, a November 1990 incident where a cabinet fell on top of the Veteran's foot. In providing the opinions, however, the examiner relied on inaccurate factual premises. Specifically, for the Veteran's right knee condition, the examiner noted a November 1990 examination which showed normal lower extremities but then stated that, after this, the record was silent for right knee pain until October 2020 treatment records note bilateral knee pain. This, however, is inaccurate. Indeed, the record shows the Veteran received multiple treatments and diagnoses for her right knee condition prior to the October 2020 treatment record. See January 2005 examination and May 2005 private medical report. Additionally, for the Veteran's right ankle condition, the examiner acknowledged her March 1991 complaint of right ankle pain and then stated that, after this, the record was silent for a right ankle condition until 2010, when the Veteran, again, complained of right ankle pain. This, however, is inaccurate. Indeed, the record shows that the Veteran complained of right ankle pain in October 1996, November 2001, January 2002, and July 2003. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. In this regard, the Board finds that the examiner's opinions regarding these claims are not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Therefore, given the deficiencies in the May 2021 VA examiner's opinions, the Board finds that remand of these claims is warranted to obtain new etiology opinions with respect to each of these claimed conditions. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection Left Ankle Disability The January 2021 Board decision remanded the claim for service connection for a left ankle disability. Specifically, the Board found that the July 2020 VA medical examiner's opinion was based on a deficient understanding of the Veteran's medical records. See January 2021 Board Decision. In this regard, however, the Board neglected to provide remand instructions. The Board acknowledges that the Veteran's left ankle was assessed in the most recent May 2021 VA examination. However, no medical opinion regarding direct or secondary service connection was obtained. Therefore, as there is no adequate VA medical opinion in the record, the Board remands this matter for a new medical opinion to determine the nature and etiology of the Veteran's left ankle disability. Accordingly, these matters are REMANDED for the following action: Schedule the Veteran for an appropriate examination to determine the nature and etiology of any right knee, right ankle, and left ankle disability she may have. The examiner must review the claims file in conjunction with this examination. All necessary testing should be completed. The examiner should: (a.) Diagnose all disabilities of the Veteran's right knee, right ankle, and left ankle. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that each such diagnosed disability was incurred in, caused by, or otherwise related to her active service, to include a November 1990 incident in which a cabinet fell on top of the Veteran's right foot. (c.) Opine whether any such diagnosed right knee, right ankle, and left ankle disability was proximately caused by the service-connected residuals of a fracture of the right distal fibular sesamoid. (d.) Opine whether any such diagnosed right knee, right ankle, and left ankle disability was aggravated (worsened) by the service-connected residuals of a fracture of the right distal fibular sesamoid. In answering these questions, the Board directs the examiner's attention to the November 1990 incident in which a cabinet fell on the Veteran's right footand to her contentions that she has experienced numerous falls due to her service-connected right foot fracture residuals and that she has broken her ankles after service as a result of the instability and altered gait from her right foot. 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. No action is required of the Veteran until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Her failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. She is also advised that she has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, Associate 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.