Citation Nr: 21008578 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-63 787 DATE: February 17, 2021 REMANDED The issue of entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected low back degenerative arthritis, is remanded. The issue of entitlement to service connection for a left knee disability, to include as secondary to service-connected low back degenerative arthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1975 to July 2005. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. These matters were previously before the Board in December 2018 at which time they were remanded for further development. 1. Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected low back degenerative arthritis, is remanded. The Veteran contends that he has a bilateral foot disability secondary to his service-connected low back degenerative arthritis. In this regard, the evidence of record includes a December 2019 VA Foot Conditions examination report in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner further opined that the claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition and less likely than not aggravated beyond its natural progression by the service-connected condition. The examiner reasoned that the Veteran’s symptoms were subjective only; objective examination was normal. There was no objective evidence of a chronic condition, and as such, the examiner was unable to confirm a current chronic diagnosis with current available records and/or upon examination. The Board finds the December 2019 VA examiner opinion inadequate to decide the Veteran’s claim for service connection for a bilateral foot disability. The Board notes that the evidence of record documents current diagnoses of Morton’s neuroma of the left and right feet. See February 2017 and November 2017 Wilmington Health Records. The December 2019 VA examiner did not address this evidence in rendering her opinion. Therefore, an addendum opinion addressing these diagnoses should be obtained on remand. Additionally, the Board notes that the Veteran has reported experiencing pain in his feet during the pendency of the claim. In Saunders v. Wilkie, the United States Court of Appeals for the Federal Circuit held that pain alone, when causing functional impairment, may constitute a "disability" for VA compensation purposes, even if the pain is not with an accompanying diagnosis. 886 F.3d 1356, 1368 (2018). Accordingly, the Veteran's reports of foot pain may qualify as disabilities for compensation purposes, even if not accompanied by diagnoses. 2. Entitlement to service connection for a left knee disability, to include as secondary to service-connected low back degenerative arthritis, is remanded. The Veteran contends that he has had left knee pain since service. Alternately, the Veteran contends that he has a left knee disability secondary to his service-connected low back degenerative arthritis. In this regard, the evidence of record includes a December 2019 VA Knee and Lower Leg Conditions examination report in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness and the claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner also opined that the claimed condition was at least as likely as not aggravated beyond natural progression by the Veteran’s service-connected condition. The examiner reasoned that the Veteran did have a diagnosis of strain but, there was no evidence of chronic continuity of care noted; the last notation related to the left knee was on February 20, 2015; no other record was found regarding the left knee. The Board finds the December 2019 VA examiner opinion inadequate to decide the claim for service connection for a left knee disability. The Board notes that the Veteran’s service treatment records (STRs) document left knee pain. However, the December 2019 VA examiner did not address this evidence in rendering her opinion regarding direct service connection. Therefore, an addendum opinion addressing the Veteran’s in-service complaints should be obtained on remand. Additionally, the examiner indicated “yes” in response to the question of whether the Veteran’s left knee disability was at least as likely as not aggravated beyond natural progression by a service-connected condition. Confusingly, however, the examiner provided a negative rationale for this opinion. Therefore, clarification in the form of an addendum opinion addressing whether the Veteran’s left knee disability was aggravated by his service-connected low back degenerative should also be obtained on remand. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Return the claims file to the examiner who conducted the Veteran's December 2019 VA Foot Conditions examination, if available. If that examiner is not available, send the claims file to another examiner. The claims file and this remand should be made available to the examiner and review of the file should be noted in the requested report. After reviewing the claims file the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran has a bilateral foot disability or bilateral foot pain that causes functional impairment that had its onset in service, or within one year of his separation from service, or is otherwise related to service? The examiner is asked to specifically discuss the Veteran’s current diagnosis of Morton neuroma of the left and right feet. Please note that the term "current" means occurring at any time during the pendency of the Veteran's claim; i.e., from August 2015 onward. The foot disability need not be present at the time of the examination; rather it is sufficient if it previously existed during the pendency of the claim and then resolved prior to the examination. (b.) For any bilateral foot disability, or functional impairment resulting from pain not associated with a diagnosis, found, please offer an opinion as to whether it is at least as likely as not that such impairment or disability was 1) caused or 2) aggravated (permanently worsened beyond the normal progression of that condition) by his service-connected low back degenerative arthritis. The examiner is asked to specifically discuss both causation and aggravation. (c.) If the examiner finds that a bilateral foot disability, or functional impairment resulting from pain not associated with a diagnosis, has been aggravated by the Veteran's service-connected low back degenerative arthritis the examiner should attempt to quantify the degree of aggravation beyond the baseline level that is attributed to the disability. (d.) All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. Return the claims file to the examiner who conducted the Veteran's December 2019 VA knee and lower leg conditions examination, if available. If that examiner is not available, send the claims file to another examiner. The claims file and this remand should be made available to the examiner and review of the file should be noted in the requested report. After reviewing the claims file the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran has a left knee condition that had its onset in service, or within one year of his separation from service, or is otherwise related to service? The examiner is asked to specifically discuss the Veteran’s in-service complaints of knee pain documented in the STRs. The examiner is also asked to specifically discuss the Veteran’s contention that he has had left knee pain since service. The Board emphasizes that chronicity of care is not required for service connection. Rather, the question is whether the Veteran’s current condition is medically consistent with the history he has provided. (b.) For any left knee disability found, please offer an opinion as to whether it is at least as likely as not that such disability was 1) caused or 2) aggravated (permanently worsened beyond the normal progression of that condition) by his service-connected low back degenerative arthritis. The examiner is asked to specifically discuss both causation and aggravation. The examiner is also asked to specifically discuss the December 2019 VA Knee and Lower Leg Conditions examination report in which the examiner indicated “yes” in response to the question of aggravation, and clarify whether aggravation is indeed present. (c.) If the examiner finds that the left knee disability has been aggravated by the Veteran's service-connected low back degenerative arthritis, the examiner should attempt to quantify the degree of aggravation beyond the baseline level that is attributed to the disability. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.