Citation Nr: 21006398 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-21 897 DATE: February 4, 2021 REMANDED Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected right ankle sprain, is remanded. Entitlement to service connection for a low back disorder, to include as secondary to service-connected right ankle sprain, is remanded. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right ankle sprain, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1974 to June 1978, and during a period of federalized active duty in the Arkansas Air National Guard from October 2002 to August 2003. The Veteran performed additional inactive service in the Arkansas Army and Air National Guard during the period from January 1986 to December 2003. This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office. In October 2015, the Veteran and P.C. testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In a May 2016 decision, the Board, as relevant, found no clear and unmistakable error (CUE) in the August 2006, September 2007, and October 2007 final rating decisions that denied service connection for low back pain; denied an application to reopen a claim for service connection for a left ankle disorder; and remanded the claim for service connection for a left knee disorder. Thereafter, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2017, the Court granted a Joint Motion for Partial Remand (JMPR) to vacate the May 2016 decision as to the above issues that were not remanded by the Board. In July 2017, the Board remanded the instant claims and, in May 2020, granted the application to reopen a claim for service connection for a left ankle disorder, and again remanded the instant claims. Such were remanded again in September 2020, and the case now returns to the Board for further appellate review. The Board notes that since the issuance of the most recent supplemental statement of the case in November 2020, additional evidence consisting of VA treatment records was associated with the record. However, as his claim is being remanded, the Agency of Original Jurisdiction (AOJ) will have an opportunity to review the newly received evidence such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. 1. Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected right ankle sprain. As noted in the May 2020 and September 2020 remands, the Veteran contends, as relevant, that his left ankle disorder is related to an in-service injury or is caused or aggravated by his service-connected right ankle sprain. While his service treatment records (STRs) are negative for any complaints, treatment or diagnosis referable to a left ankle disorder, the Board found it plausible that the altered biomechanics of one ankle would adversely impact the other and remanded the claim for a VA opinion addressing the likelihood that his left ankle disorder, diagnosed as osteophytic spurring, is secondary to his service-connected right ankle disability. In accordance with the May 2020 Remand, the Veteran was afforded a VA examination in August 2020, at which time left ankle sprain was diagnosed, and the VA examiner opined that it is less likely than not that his left ankle disorder was due to, the result of, or aggravated by his service-connected right ankle disability. In support thereof, he noted that the left ankle osteophytic spurring and right ankle sprain are not medically related as the left ankle osteophytic spurring is a separate entity from the right ankle sprain. In this regard, the examiner indicated that osteophytes are formed from bone damage from osteoarthritis, which, in turn, occurs when the protective cartilage that cushions the ends of the bones wears down over tie. He further found that a thorough review of medical literature failed to demonstrate a causal relationship, and determined that such condition was a result of normal wear and tear and age, rather than the Veteran’s right ankle sprain. However, the Board determined that such opinion was inadequate as the August 2020 VA examiner did not address whether altered biomechanics of the right ankle caused or aggravated the Veteran’s left ankle disorder and, although he diagnosed left ankle sprain, he did not offer an etiological opinion as to such disorder. Consequently, the Board remanded the case in September 2020 in order to obtain an addendum opinion addressing such matters. In November 2020, the August 2020 VA examiner essentially reiterated his prior opinion that it was less likely than not that the Veteran’s left ankle disorder was due to, the result of, or aggravated by his service-connected right ankle disability and relied on the same rationale. He did not address whether altered biomechanics of the right ankle caused or aggravated the Veteran’s left ankle disorder as requested in the September 2020 remand directives. Further, as there was no evidence of a left ankle sprain on the contemporaneous examination, he did not offer an opinion as to the etiology of such disorder. However, as such was diagnosed during the pendency of the claim, it is considered a current disability for the purpose of establishing service connection. Therefore, another remand is necessary in order to obtain an addendum opinion that complies with the September 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for a low back disorder, to include as secondary to service-connected right ankle sprain. As noted in the May 2020 and September 2020 remands, the Veteran contends, as relevant, that his current low back disorder, diagnosed as lumbar degenerative joint disease (DJD)/degenerative disc disease (DDD), is a result of the cumulative impact of his in-service physical duties, which he describes as “playing war games” while wearing heavy backpacks and other gear. In accordance with the May 2020 Remand, the Veteran was afforded a VA examination in August 2020, at which time degenerative arthritis was diagnosed, and the VA examiner opined that his low back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, he noted that the Veteran received treatment for a back condition in 1977 and 1978; however, he indicated that these were separate isolated incidents and there were no complaints of a back condition while separating from active duty. Furthermore, the examiner noted that the Veteran’s degenerative arthritis is more likely due to aging and occupational stress. However, as the August 2020 VA examiner did not offer an opinion as to whether the Veteran’s low back disorder is related to the cumulative impact of his in-service physical duties, to include playing war games while wearing rucksacks and heavy gear as requested in the May 2020 Remand, the Board remanded the case in September 2020 in order to obtain an addendum opinion addressing such matters. In November 2020, the August 2020 VA examiner again opined that the Veteran’s low back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of such opinion, he explained that DDD occurs over time as normal wear and tear on the lumbar spine, and the Veteran’s low back disorder is not due to his playing war games while wearing rucksacks and other heavy gear while in service. The examiner also stated that playing war games while wearing rucksacks and other heavy gear and the Veteran’s DDD are not related, and there was no evidence of DDD while in service However, the Board finds the November 2020 opinion to be conclusory in nature as the examiner does not explain why the Veteran’s low back disorder is unrelated to the cumulative impact of his in-service physical duties, which includes, but is not limited to, playing war games while wearing rucksacks and heavy gear. Furthermore, despite the current diagnosis of DJD of the lumbar spine, the examiner did not address the etiology of such disorder. Therefore, a remand is necessary in order to obtain an addendum opinion addressing such matters. 3. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right ankle sprain. In the May 2020 remand, the Board found that an addendum opinion was necessary to address whether the Veteran’s left knee disorder, diagnosed as chondromalacia patella syndrome and DJD, had its onset in, or is otherwise related to, his military service, to include his in-service physical duties, to include playing war games while wearing rucksacks and heavy gear. In offering such opinion, the examiner was directed to consider and comment on the clinical significance of, as relevant, a November 1992 periodic National Guard medical history report where the Veteran reported experiencing an ongoing left knee impairment. In accordance with the May 2020 Remand, the Veteran was afforded a VA examination in August 2020, at which time left knee strain was diagnosed, and the VA examiner opined that his left knee disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, he noted that the Veteran had reported having a severe knee sprain while in junior high school. However, while he sought treatment in service in 1977, such was acute only, and his 1978 separation examination showed no abnormalities of the left knee. Further, the examiner stated the Veteran’s report of left knee pain in 1992 was not related to military service, and on a May 2000 National Guard examination, the Veteran denied any knee problems. He indicated that degenerative joint disease is a progressive disease that occurs over time and is considered normal wear and tear, and the degenerative arthritis documented in July 2010 did not occur during active duty service. Thus, he found that a nexus was not established. However, while the Board noted a diagnosis of chondromalacia patella syndrome in addition to DJD and the August 2020 VA examiner diagnosed left knee sprain, he did not offer an etiological opinion as to such disorders. Additionally, he did not offer an opinion as to whether the Veteran’s left disorder is related to the cumulative impact of his in-service physical duties, to include playing war games while wearing rucksacks and heavy gear, as requested in the May 2020 remand directives. Finally, while the examiner stated that the complaint of knee pain in 1992 was not related to the Veteran’s military service, he did not provide a rationale for such conclusion. Consequently, the Board remanded the case in September 2020 in order to obtain an addendum opinion addressing such matters. In November 2020, the August 2020 VA examiner essentially reiterated his prior opinion that it was less likely than not that the Veteran’s left knee disorder was incurred in or caused by the claimed in-service injury, event, or illness. However, he did not address the etiology of each diagnosed left knee disorder, to include chondromalacia patella syndrome, DJD, or left knee sprain, and again failed to provide a rationale for his conclusion that the Veteran’s complaint of knee pain in 1992 was not related to his military service as requested in the May 2020 and September 2020 remands. Further, when addressing whether the Veteran’s left knee disorder was related to his in-service physical duties, to include playing war games while wearing rucksacks and heavy gear, the examiner stated the Veteran’s degenerative disc disease was not related to such activities. However, a diagnosis of DDD is inapplicable to the knee. Therefore, another remand is necessary in order to obtain an addendum opinion that complies with the September 2020 remand directives. Stegall, supra. The matters are REMANDED for the following action: Forward the record, to include a copy of this remand, to an appropriate VA examiner other than the August/ November 2020 VA examiner, if possible. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s current left ankle disorder (diagnosed as osteophytic spurring by an August 2015 X-ray and left ankle sprain at the August 2020 VA examination) is caused or aggravated by his right ankle sprain, to include as a result of altered biomechanics? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In addressing the foregoing inquiry, the examiner must provide an opinion for both left ankle diagnoses, i.e., osteophytic spurring and sprain. In this regard, he or she is advised that, while the Veteran may not have had a diagnosis of a left ankle sprain at the November 2020 VA examination, such disorder has been present during the pendency of the claim and, thus, an opinion addressing the etiology of it is needed. (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s current low back disorder (diagnosed as lumbar DJD/DDD) had its onset in, or is otherwise related to, his military service, to include the cumulative impact of his in-service physical duties, which includes, but is not limited to, playing war games while wearing rucksacks and other heavy gear? In addressing the foregoing inquiry, the examiner must provide an opinion for both lumbar spine diagnoses, i.e., DJD and DDD. (C) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s current left knee disorder (diagnosed as chondromalacia patella syndrome, DJD, and left knee sprain) had its onset in, or is otherwise related to, his military service, to include the cumulative impact of his in-service physical duties, which includes, but is not limited to, playing war games while wearing rucksacks and other heavy gear? In addressing the foregoing inquiry, the examiner must provide an opinion for all left knee diagnoses, i.e., chondromalacia patella syndrome, DJD, and sprain. He or she should also consider and comment on the clinical significance of November 1992 report of left knee pain when completing a periodic medical history report. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.