Citation Nr: 21008761 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 190613-10173 DATE: February 18, 2021 REMANDED Entitlement to service connection for left ankle arthritis, to include as secondary to gouty arthritis of other joints, is remanded. Entitlement to service connection for left knee arthritis, to include as secondary to gouty arthritis of other joints, is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Army from July 1970 to January 1972. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2019 rating decision that considered the evidence of record on that date. See 38 C.F.R. § 2.2400 (a)(1) (2019). The Veteran timely appealed this decision to the Board by requesting the Direct Review lane for a reevaluation of the evidence considered by the Agency of Original Jurisdiction (AOJ). See June 13, 2019 Notice of Disagreement (VA Form 10182). In a February 2020 decision, the Board in part denied entitlement to service connection for left ankle arthritis and left knee arthritis, both to include as secondary to gouty arthritis of other joints. The Board found that the evidence of record failed to establish in-service onset or injuries from whence a nexus could be drawn. And, the Board found that the competent medical evidence of record failed to disclose that it is as likely as not that left ankle arthritis and/or left knee arthritis were either proximately caused by, or aggravated by, gouty arthritis of other joints. The Veteran appealed the February 2020 Board decision to the United States Court of Appeals for Veteran’s Claims (Court), resulting in a Joint Motion for Partial Remand (JMPR). An October 15, 2020 Court order vacated the portions of the Board’s decision that denied service connection for left ankle arthritis and left knee arthritis, to include as secondary to gouty arthritis of other joints, remanding these issue on appeal for compliance with instructions in the September 2020 JMPR. The parties to the JMPR agreed that the Board erred in finding that VA satisfied its duty to assist when the Board relied upon the February 2019 VA examination and March 2019 addendum opinion as adequate to adjudicate the Veteran’s left knee and left ankle claims because the clinician failed to address the Veteran’s lay statements concerning the onset of his left ankle and left knee conditions caused by increased use of the left side due to service-connected disabilities on his right side. Discussion The Veteran contends that left ankle and left knee arthritis were incurred in, aggravated by, or otherwise attributable to, active duty service. Alternatively, the Veteran contends that left ankle and left knee arthritis were proximately caused by, or aggravated beyond its natural progression by, gouty arthritis of other joints or by the increased use of left side ankle and knee because of right side disabilities. The Veteran has been granted service connection for disabilities of the right knee, right ankle, and right foot. In February 2019 and March 2019, the Veteran was afforded a VA examination and VA addendum opinion. Both the examination and addendum were inadequate as the clinician failed to address the Veteran’s lay statements concerning the onset of his left ankle and left conditions as well as the Veteran’s lay statements concerning increased use of his left side as a result of his right-side service-connected disabilities. VA’s duty to assist extends to ensuring that an examination report or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, because the AOJ (and in turn the Board) failed to ensure that the VA examination and addendum opinion obtained in these matters were adequate, failure of which constitutes a pre-decisional duty to assist error, remand is required for correction of such pre-decisional error. See 38 C.F.R. § 20.802. The matters are REMANDED for the following actions: 1. Arrange for a VA left ankle and left knee examination with an appropriate clinician. The clinician must review the claims file and refer to specific medical and lay evidence when rendering opinions. The clinician is directed to address with specificity, the Veteran’s lay accounts, as to onset of both left ankle and left knee conditions and as to his increased use of his left side because of right side disabilities. Upon completion of the above, the clinician is asked to respond to the following inquiries: a. Whether it is as least as likely as not (50 percent probability or more) that the Veteran’s left ankle and/or left knee arthritis were incurred in, aggravated by, or otherwise attributable to, the Veteran’s active duty service or if it manifested to a degree of ten percent or more within the applicable presumptive period of one year following separation from service. 38 C.F.R. §§ 3.307(a), 3.309(a). AND b. Whether it is at least as likely as not that the Veteran’s left ankle and/or left knee arthritis were proximately caused by, or aggravated by gouty arthritis of other joints. AND c. Whether it is at least as likely as not that the Veteran’s left ankle and/or left knee arthritis were caused or aggravated by the increased use of left side ankle and knee because of right side service-connected disabilities of the right knee, right ankle, and right foot. The VA clinician must keep in mind that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, she/he must provide an explanation for such rejection. Complete, clearly-stated rationales for the conclusions reached must be provided. The clinician is reminded that merely stating that it is his or her opinion that a condition was not caused or aggravated by a service-connected disability is not sufficient. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.