Citation Nr: 21006749 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 15-17 019 DATE: February 5, 2021 REMANDED The issue of entitlement to service connection for a right knee disability is remanded. The issue of entitlement to service connection for a left knee disability is remanded. The issue of entitlement to service connection for a right ankle disability, to include as secondary to the service-connected left ankle sprain, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1988 to November 1992. In August 2018, the Veteran testified under oath before the undersigned Veterans Law Judge at a travel board hearing. A transcript of the hearing is of record. In March 2019, the appeal was remanded for additional development. For the reasons outlined below, remand is again needed. 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. The Board finds that remand is again needed in this matter. Specifically, the Board finds that new VA opinions are needed. Regarding the claimed bilateral knee disability, the Board requires clarification of the Veteran’s diagnosis. The September 2020 VA examination notes a diagnosis of bilateral patellofemoral pain syndrome. In addition, the Veteran reported the following functional loss/impairment: inability to bend at the knee, limited range of motion, difficulty with stairs, and pain in driving and walking. However, one of the November 2020 VA opinions states that “I am unable to find medical records showing knee evaluation, diagnosis, or treatment post service.” The examiner also states: “Although claimant reported knee pain, verified by her husbands [sic] letter, there is no medical care showing a chronic condition which would be connected to military service.” The Board points out that pain with functional impairment may be considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356, 1367 (2018). Accordingly, the Board finds that a new opinion is needed that clarifies the Veteran’s diagnosis, as well as considers her contentions in light of the Court’s holding in Saunders. In addition, the Board finds that further clarification is needed regarding the etiology of the Veteran’s claimed disability. The Board acknowledges two other VA opinions obtained in November 2020 that address whether the Veteran’s claimed right and left knee disabilities pre-existed service. For both, the examiner indicates that the Veteran’s “claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.” (Emphasis added). However, in the rationale provided for both opinions, the examiner states that no condition existed prior to service. The Board asks for clarification of these seemingly contradictory findings. Further, the Board asks that an examiner address the lay contentions of record. For example, in her February 2014 Notice of Disagreement (NOD), the Veteran states that her “knee problems started during basic training and have continued to cause . . . [her] problems and pain.” She states further that she did not seek further treatment for her knees because she was recommended surgery. Her statements are echoed by her spouse in his October 2018 submission, where he states that he observed her in 1989 walking instead of running on the track because, as she reported, “she had injured her knees in basic training and she didn’t go to a doctor because she was afraid of having to have surgery and possibly being asked to leave the military.” The Board asks that an examiner address these contentions upon remand. Finally, the Board asks that an examiner address knee treatment notations in the Veteran’s service treatment records. For example, a February 1989 service treatment record notes that the Veteran complained of popping in her right knee and pain; a February 1989 physical profile serial report notes an issue with her lower extremities; and an October 1992 dental patient medical history notes that she was under the care of a physician during the past year for “bad knees.” The Board asks that these notations be considered and addressed by a VA examiner. 3. Entitlement to service connection for a right ankle disability, to include as secondary to the service-connected left ankle sprain. The Board has similar concerns regarding the right ankle disability opinions and finds that new opinions are needed. For example, the September 2020 VA examination shows a diagnosis of right ankle strain. The Veteran also reported functional loss/impairment of lost feet flexibility, difficulty walking anywhere, and pain with driving. Nevertheless, the rationale for the November 2020 VA opinion states that the examiner was “unable to find right ankle injury diagnosis, eval or treatment in the available medical records.” The Board asks that an examiner clarify the Veteran’s diagnosis, particularly in light of Saunders as discussed above. In addition, like the knee opinions, one November 2020 VA opinion indicates that the right ankle “condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.” (Emphasis added). However, the rationale states that the examiner did not find evidence that the right ankle condition existed prior to service. Again, the Board seeks clarification of these seemingly contradictory findings. Further, regarding the opinion for secondary service connection, the Board appreciates that November 2020 VA opinion indicates “yes” to the question as to whether the Veteran’s claimed disability is “at least as likely as not aggravated beyond its natural progression by” her service-connected disability. Nevertheless, the rationale supporting this opinion is inadequate. It states: “there was no pre existing condition therefore there was no pain so today’s exam findings are worse than baseline.” However, an opinion is needed that addresses how the Veteran’s service-connected disability contributed to the aggravation of her claimed disability. Accordingly, a new opinion is needed. In addition, the Board asks that an examiner address the Veteran’s lay contentions, as well as those of her spouse, submitted in his October 2018 statement. For example, in the February 2014 NOD, the Veteran contends that she experienced “twists and sprains” to her ankles yearly. She states further that her problems started in service and “have continued through to the present.” The Veteran’s spouse contends that he has “seen her sprain her right ankle when she was on crutches compensating for her left ankle.” The Board asks that an examiner address these lay statements. Finally, the Board asks that the examiner address any relevant reports of treatment in the Veteran’s service treatment records. For example, the Board notes that a September 1992 Report of Medical History, the Veteran indicated “foot trouble” and an October 1992 dental patient medical history record notes under the care of a physician in the past year for “sprained ankle.” The Board asks that the examiner review and address the Veteran’s service treatment records. The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issue on appeal. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for the following VA examinations. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. The Board notes that pain with functional impairment may be considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356, 1367 (2018). (a) A VA examination to clarify the diagnosis(es) of the claimed bilateral knee disability and to address the etiology of any diagnosed disability(ies). For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran’s active duty service. The examiner is asked to address specifically: (1) Lay contentions of record. For example, in her February 2014 Notice of Disagreement (NOD), the Veteran states that her “knee problems started during basic training and have continued to cause... [her] problems and pain.” She states further that she did not seek further treatment for her knees because she was recommended surgery. Her statements are echoed by her spouse in his October 2018 submission, where he states that he observed her in 1989 walking instead of running on the track because, as she reported, “she had injured her knees in basic training and she didn’t go to a doctor because she was afraid of having to have surgery and possibly being asked to leave the military.” (2) Knee treatment notations in the Veteran’s service treatment records. For example, a February 1989 service treatment record notes that the Veteran complained of popping in her right knee and pain; a February 1989 physical profile serial report notes an issue with her lower extremities; and an October 1992 dental patient medical history notes that she was under the care of a physician during the past year for “bad knees.” (b) A VA examination to clarify the diagnosis of the claimed right ankle disability and to address the etiology of any diagnosed disability(ies). For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran’s active duty service. The examiner should address any relevant reports of treatment in the Veteran’s service treatment records. For example, the Board notes that a September 1992 Report of Medical History, the Veteran indicated “foot trouble,” and an October 1992 dental patient medical history record notes under the care of a physician in the past year for “sprained ankle.” In addition, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that claimed right ankle disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran’s service-connected left ankle sprain disability. In drafting the ankle opinions, the examiner is asked to address the following the Veteran’s lay contentions, as well as those of her spouse, submitted in his October 2018 statement. For example, in the February 2014 NOD, the Veteran contends that she experienced “twists and sprains” to her ankles yearly. She states further that her problems started in service and “have continued through to the present.” The Veteran’s spouse contends that he has “seen her sprain her right ankle when she was on crutches compensating for her left ankle.” 3. If, and only if, the examiner determines that the Veteran’s disabilities on appeal pre-existed service, the examiner should provide an opinion on the following: (a) Whether it is at least as likely as not that the disability(ies) clearly and unmistakably pre-existed service. (b) If there is clear and unmistakable evidence that the claimed disability(ies) preexisted service, then the examiner should address whether there is clear and unmistakable evidence that the claimed disability was not permanently aggravated by service. If not, the examiner should then address whether it is at least as likely as not that it was caused by the Veteran’s active duty service. The Board notes that a preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 C.F.R. § 3.306 (a). 4. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, 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.