Citation Nr: 21007935 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-14 891 DATE: February 11, 2021 REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to a left knee disorder, is remanded. Entitlement to service connection for a left big toe disorder, to include as secondary to a left knee or right knee disorder, is remanded. Entitlement to service connection for a right big toe disorder, to include as secondary to a left knee or right knee disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1986 to November 1989, with subsequent Reserve service, to include a period of active duty from February 1991 to April 1991. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veteran’s Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In August 2016 the Veteran testified at a travel board hearing before the undersigned Veteran’s Law Judge. These issues were remanded previously in a July 2020 Board decision. 1. Entitlement to service connection for left knee disorder is remanded. Remand is required for adequate VA opinions. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). The Veteran was provided with a VA examination in October 2020 to evaluate his left knee condition. The examiner determined that the Veteran’s left knee degenerative joint disease (DJD) and patellofemoral pain syndrome (PFPS) were less likely than not related to service. The examiner acknowledged that the Veteran sustained a left knee injury in service according to March 1987 STRs, but noted as there was no evidence of treatment, complaint, or diagnosis for the left knee in the records, nexus was unlikely. The examiner also noted that the Veteran’s April 1991 separation examination was silent for any knee complaints. As the Veteran had not been diagnosed with a left knee condition until 20 years later, the examiner determined that it was less likely than not related to service. The Board finds this opinion to be inadequate. The examiner relied largely upon the absence of complaints within the STRs to support his negative nexus opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the lack of contemporaneous medical records does not, in and of itself, render lay evidence incredible or serve as an “absolute bar” to service connection). The examiner’s statement that there was no nexus as the Veteran did not receive a diagnosis until 20 year later is also inadequate as it merely considered the absence of treatment records to support the conclusion. Additionally, the opinion failed to address the Veteran’s lay statements from the August 2016 hearing in which he stated that he had continuous symptoms following service but chose to self-medicate as he was always taught not to seek medical treatment due to the cost. As the examiner largely relied on lack of documentation in treatment records and failed to acknowledge the Veteran’s lay statements, remand is required for an adequate VA opinion. 2. Entitlement to service connection for right knee disorder, to include as secondary to left knee disorder, is remanded. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). In an October 2020 VA opinion, the examiner stated that the Veteran’s right knee condition was less likely than not related to service as there were no findings of treatment, complaint, diagnosis or imaging for a right knee condition in the Veteran’s STRs. The examiner also noted that there was no indication of a right knee condition on the April 1991 separation examination and again, noted that the Veteran was diagnosed with a right knee condition until 20 years after service. The Board finds this opinion to be inadequate. The examiner relied largely upon the absence of complaints within the STRs to support his negative nexus opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the lack of contemporaneous medical records does not, in and of itself, render lay evidence incredible or serve as an “absolute bar” to service connection). The Board also finds this examination inadequate as the examiner failed to address secondary service connection. In the July 2020 remand directives, the examiner was asked to address whether it was at least as likely as not that the Veteran’s right knee condition was caused or aggravated by the Veteran’s left knee condition. The examiner failed to address this theory of entitlement. 3. Entitlement to service connection for left and right big toe disorder, to include as secondary to left knee or right knee disorder, is remanded. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). In the October 2020 VA examination, the examiner determined that the Veteran’s bilateral toe condition was less likely than not related to service as the Veteran’s STRs were silent for complaints, diagnoses, imaging or treatment for a toe conditions in service. The examiner also noted that the Veteran’s April 1991 separation examination was silent for any toe conditions. The examiner stated that gout was caused by persistent elevation of the levels of uric acid in the blood. The examiner then found that the Veteran’s toe conditions were less likely than not caused or aggravated by his knee condition. The examiner again noted that gout was caused by the persistent elevation of the levels of uric acid in the blood. According to the Mayo Clinic, risk factors for developing high levels of uric acid are diet, obesity, medical conditions such as untreated HTN, diabetes and kidney disease, certain medications such as thiazide diuretics, a family history of gout, age and sex, recent trauma or surgery. The examiner determined that as the Veteran reported no recent trauma or surgery, there were more likely explanations of the Veteran's development of gout. The Board finds the direct service connection opinion to be inadequate. The examiner relied largely upon the absence of complaints within the STRs to support his negative nexus opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the lack of contemporaneous medical records does not, in and of itself, render lay evidence incredible or serve as an “absolute bar” to service connection). The examiner also failed to acknowledge the Veteran’s lay statements that his toe condition stemmed from the boots that he was issued in service and that he had been experiencing symptoms since service. As the examiner largely relied on lack of documentation in treatment records and failed to acknowledge the Veteran’s lay statements, remand is required for an adequate VA opinion. The Board also finds the examiner’s opinion regarding secondary service connection to be inadequate. The examiner simply listed the most common causes of gout and determined that as the Veteran had not experienced any recent trauma, his gout was more likely caused by one of the other listed risk factors. The examiner failed to provide sufficient medical support for this conclusion. He also did not actually address why the Veteran’s toe conditions were not caused or aggravated by his knee conditions. As there is no adequate rationale for the Veteran’s opinion, remand is required for a sufficient VA opinion to address secondary service connection. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran a VA examination to obtain a medical opinion as to the etiology of his left knee and right knee disorders. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must diagnose all current left knee disorders. In doing so, the examiner must address all left knee disorders raised by the record, including 1) the Veteran’s lay statements from the August 2016 hearing regarding continuity of symptomatology since service and why he did not seek medical care; 2) March 2012 medical treatment record; 3) November 2018 VA examinations; and 4) November 2019 medical treatment record. Second the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left knee disorders had onset in, or is otherwise related to, active military service. Third, the examiner must diagnose all current right knee disorders. In doing so, the examiner must address all right knee disorders raised by the record, including the 1) March 2012 medical treatment record; 2) November 2018 VA examinations; and 3) November 2019 medical treatment record. Fourth, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right knee disorders had onset in, or is otherwise related to, active military service. Fifth, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that any right knee disorder is caused or aggravated by any diagnosed left knee disorder. 4. After any additional records are associated with the claims file, provide the Veteran a VA examination to obtain a medical opinion as to the likely etiology of his left toe disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must diagnose all current left toe disorders. In doing so, the examiner must address all left toe disorders raised by the record, including 1) the Veteran’s lay statements from the August 2016 hearing where he reported that his toe pain was caused by the boots issued by the military; 2) February 2018 medical treatment record; 3) the November 2018 VA examinations; and 4) the February 2020 medical treatment record. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left toe disorders had onset in, or is otherwise related to, active military service. Third, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that any left toe disorder is caused or aggravated by any diagnosed left knee or right knee disorder. 5. After any additional records are associated with the claims file, provide the Veteran a VA examination to obtain a medical opinion as to the likely etiology of his right toe disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must diagnose all current right toe disorders. In doing so, the examiner must address all left toe disorders raised by the record, including 1) the Veteran’s lay statements from the August 2016 hearing where he reported that his toe pain was caused by the boots issued by the military; 2) February 2018 medical treatment record; 3) the November 2018 VA examinations; and 4) the February 2020 medical treatment record. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right toe disorders had onset in, or is otherwise related to, active military service. Third, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that any right toe disorder is caused or aggravated by any diagnosed left knee or right knee disorder. 6. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38C.F.R. §§3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board AK 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.