Citation Nr: 21009089 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-17 059 DATE: February 18, 2021 REMANDED Entitlement to service connection for a right knee disability, to include on a secondary basis, is remanded. Entitlement to service connection for a low back disability, to include on a secondary basis, is remanded. Entitlement to service connection for a right shoulder disability, to include on a secondary basis, is remanded. Entitlement to service connection for a left hip disability, to include on a secondary basis, is remanded. Entitlement to service connection for a right hip disability, to include on a secondary basis, is remanded. Entitlement to service connection for a left ankle disability, to include on a secondary basis, is remanded. Entitlement to service connection for a right ankle disability, to include on a secondary basis, is remanded. REASONS FOR REMAND The Veteran had active service from August 1979 to August 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2018. A transcript of that hearing is of record. In a March 2019 decision, the Board remanded the issues listed on the cover page for additional development. Additionally, the Board remanded the issues of entitlement to service connection for a sleep disorder and gastrointestinal disorder for further development. Specifically, the Board indicated that the February 2015 VA examiner did not consider the lay statements regarding the Veteran’s reported falls, which he claims resulted in his right knee disorder, right shoulder disorder, bilateral hip disorder, bilateral ankle disorder, and lumbar spine disorder; a December 2012 private medical opinion indicating that the Veteran’s right knee disorder, bilateral hip disorder, and lumbar spine disorder were due to his left knee disability; or medical articles regarding the effects of medication with gastrointestinal disorders and sleep disorders. The requested examinations and opinions were obtained in December 2019. However, the Board finds that, for the reasons discussed below, the issues listed on the cover page must again be remanded to ensure compliance with the Board’s March 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). An August 2020 rating decision by the RO granted entitlement to service connection for sleep apnea and irritable bowel syndrome. The RO’s grant of service connection for these issues constitutes a full award of benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Thus, these matters are no longer in appellate status. Id. Additional evidence has been received in the form of medical treatment records since the last supplemental statement of the case (SSOC) in August 2020. Generally, a SSOC must be issued by the Agency of Original Jurisdiction (AOJ) when new evidence is received. An exception to this general rule is when the additional evidence is either duplicative or not relevant to the issue on appeal or, in the case of appeals perfected after February 2, 2013 such as this one, evidence submitted by the Veteran. 38 U.S.C. § 7105(e); 38 C.F.R. § 20.1304(c). In the present case, the Board notes that the Veteran submitted the medical records in connection with an unrelated supplemental claim. Accordingly, the Board may proceed with the adjudication of these pending claims as a SSOC is not required. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107 (a)(2); 38 C.F.R. § 20.900(c). Entitlement to service connection for a right knee disability, low back disability, right shoulder disability, bilateral hip disability, and bilateral ankle disability is remanded. The Veteran asserts that his right knee disorder, right shoulder disorder, bilateral hip disorder, bilateral ankle, and lumbar spine disorder are all secondary to his service-connected left knee disability. At his November 2018 Board hearing, he testified that he injured his left knee in service and had fallen many times, had an abnormal gait, and had used a cane for more than 30 years due to his left knee disability, which has resulted in his right knee disorder, right shoulder disorder, bilateral hip disorder, left ankle disorder, lumbar spine disorder. The Veteran and his wife both reported that he has fallen many times due to his left knee disability. In December 2013, the Veteran’s physician opined that the Veteran’s right knee disorder, bilateral hip disorder, and lumbar spine disorder were caused by his left knee disability, reasoning that the Veteran had walked with a limp and a cane for over 30 years, which caused distortion in the gait and weight distribution, causing arthritis in the right knee, both hips, and lower back. Although the Veteran was afforded VA examinations in February 2015, the Board previously found that the examiner did not consider the multiple lay statements of the Veteran and his wife regarding the numerous falls or the opinion of the Veteran’s physician. As such, in March 2019, the Board remanded the Veteran’s claims to obtain VA addendum opinions addressing the nature and etiology of the Veteran’s right knee disability, lumbar spine disorder, bilateral hip disorder, and bilateral ankle disorder. Specifically, the examiner was instructed to opine as to whether any right knee disorder, right shoulder disorder, bilateral hip disorder, bilateral ankle disorder, and/or lumbar spine disorder was caused by the Veteran’s service-connected left knee; the examiner was instructed to consider the multiple lay statements of the Veteran and his wife and the opinion of the Veteran’s physician in rendering these opinions. Additionally, the examiner was instructed to opine as to whether any right knee disorder, right shoulder disorder, bilateral hip disorder, bilateral ankle disorder, and/or lumbar spine disorder was aggravated by the Veteran’s service-connected left knee disability. After a review of the VA medical opinions rendered in connection with these directives, the Board finds that the requested development has not been completed, and further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). An October 2019 VA back examination notes diagnoses of lumbosacral stain and intervertebral disc syndrome (IVDS). The examiner indicated that the Veteran was noted to have antalgic gait which would cause back pain. Nevertheless, the examiner, in providing a negative secondary service connection opinion, cited an opinion from a physician and Chairman of Orthopedics and Surgery at the University of Toronto, which indicated, in pertinent part, that: “in the case of an antalgic gait secondary to leg pain due to sciatica, it would probably be necessary for the limp to be severe and prolonged, meaning years, for it to have a significant impact on the initiation or aggravation of arthritis of the spine or opposite lower extremity.” In providing a negative aggravation opinion, the examiner reasoned that there is no evidence that the knee pains from gouty arthritis were severe and three arthroscopes more than likely helped the knee become osteoarthritic but did not affect back pain. The Board finds that both of these opinions are inadequate. With regard to the secondary service connection opinion, the examiner seemingly cited to a medical opinion in lieu of providing a rationale for his own opinion. This is problematic as the cited opinion is broad, speculative, and not based on the facts of the Veteran’s case. Indeed, the examiner was asked to specifically consider the December 2013 private medical opinion, which suggests that he did in fact walk with a limp for many years. Miller v. West, 11 Vet. App. 345, 348 (1998). Similarly, the aggravation opinion is inadequate because the examiner, in finding that his knee pain was not severe and did not affect his back, again failed to address the private medical opinion suggesting that his left knee disability resulted in distortion in his gait and weight distribution, causing arthritis in the lower back. An October 2019 VA hip examination notes a diagnosis of bilateral trochanteris pain syndrome (including trochanteric bursitis), which started around 1990, manifested by pain and a burning sensation in both hips. The impact of the bilateral hip disability was noted as a change in his gait. In providing a negative secondary service connection opinion, the examiner indicated that it was more than likely that back pain is the cause of the hip pain. The examiner also provided a negative aggravation opinion, indicating that it was more like than not that his hip pain was due to IVDS associated with back pains, which are unrelated to any knee pains. Absent any supporting rationale, these conclusory opinions are inadequate. Miller v. West, 11 Vet. App. 345, 348 (1998). Furthermore, the examiner failed to address the December 2013 private medical opinion, indicating that his gait abnormality caused the bilateral hip disability, as instructed by the prior Board remand. Stegall v. West, 11 Vet. App. 268 (1998). An October 2019 VA examination for the right knee notes a diagnosis of right knee osteoarthritis and indicates that the disorder started around 1988, beginning with pain from overuse and overcompensation for the left knee injury. In providing a negative secondary service connection opinion, the examiner indicated that the mild osteoarthritis of the right knee is more likely consistent with age appropriate arthritis than related to long term trauma from a contralateral knee joint. The examiner also provided a negative aggravation opinion, indicating that the mild osteoarthritis in a 58 year old is more consistent with natural aging than related to any trauma of the knee in relation to the left knee. The Board finds that both opinions are inadequate as well, as neither one was supported by any rationale or discussion. Id. Additionally, the examiner again failed to address the December 2012 private medical opinion, suggesting that his left knee disability resulted in a gait abnormality, causing the right knee disability, as previously instructed by the Board. Stegall v. West, 11 Vet. App. 268 (1998). Moreover, none of the opinions rendered for the back, bilateral hips, or right knee addressed the multiple lay statements of the Veteran and his wife regarding the numerous falls, as instructed by the prior Board remand. Therefore, in light of the deficiencies described above and the failure to comply with Board’s remand directives, the Board finds that the requested development has not been completed with regard to these issues, and further action to ensure compliance with the remand directives is required. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998). Additionally, an October 2019 VA shoulder examination notes diagnoses of shoulder impingement syndrome, bicipital tendonitis, rotator cuff tendonitis, and acromioclavicular joint osteoarthritis. The examination notes that his shoulder disorder started around 1985 or 1988 and began after he had a fall injury. The examiner provided a negative secondary service connection opinion, noting only that the Veteran’s MRI showed everything except subacromial impingement. No explanation as the significance of the MRI results was provided. Thus, the Board finds that this opinion lacks a clear explanation or rationale, and further development is necessary before a decision can be rendered on the issue of entitlement to service connection for a right shoulder disability. An October 2019 VA ankle examination notes a diagnosis of right ankle lateral collateral ligament sprain (chronic/recurrent); the examiner did not find that the Veteran had a left ankle disability. The examiner indicated that the Veteran’s ankle disorder started around 1987/1988 with pain overtime from overuse; he had twisted his ankle multiple times. The Veteran’s bilateral ankles manifested by current symptoms of sharp pains along with stiffness. The impact of the condition affects his normal day to day function, to include walking. Examination of the ankles revealed decreased range of motion in the bilateral ankles; however, the examiner indicated that there were no findings, signs and or symptoms to support a diagnosis for the left ankle. Therefore, although providing a negative secondary service connection opinion, the examiner’s rationale indicated only that there are no findings to associate his left ankle with any pathology since the left ankle is age appropriate. Regarding an aggravation opinion, the examiner indicated that since there was never any left ankle condition, there is still no pathology or diagnosis and therefore nothing to aggravate. The U.S. Court of Appeals for the Federal Circuit has stated that, where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Thus, while there may have not been any confirmed underlying diagnosis, the Veteran had complaints of left ankle pain and decreased range of motion. In light of Saunders, the Board finds that a remand is needed for adequate medical opinions regarding the left ankle, as pain alone can serve as a functional impairment and therefore qualify as a disability. Additionally, in providing a negative secondary service connection and aggravation opinion for the right ankle, the examiner cited to medical literature, explaining that there is nothing to associate a sprain with overuse; it is caused by an inversion from the foot in an uneven surface or hole. All that was done was a posterior splint and no other treatment. Additionally, ankle sprains are one of the most frequent joint injury and are unassociated with other pathology. The examiner further noted that the Veteran’s injury in-service had a 100 percent recovery with minimal residuals. Not only do these opinions not address the lay statements, indicating that his left knee caused his falls which resulted in his current ankle disabilities, as instructed by the Board’s prior remand, but aggravation of a condition by a service-connected disability must be considered independently of direct causation, and medical examinations must provide adequate reasoning and conclusions on both points. Atencio v. O’Rourke, 30 Vet. App. 74, 91 (2018). Thus, the Board finds that further development is necessary before a decision can be rendered on the issues of entitlement to service connection for a bilateral ankle disability. The matters are REMANDED for the following action: Obtain an addendum opinion from an examiner of appropriate expertise to determine the nature and likely etiology of any right knee disorder, right shoulder disorder, bilateral hip disorder, bilateral ankle disorder, and lumbar spine disorder. If an examination is deemed necessary, such should be scheduled. The examiner is asked to: (a.) Identify all of the Veteran’s current right knee, right shoulder, bilateral hip, bilateral ankle, and lumbar spine disorders. If any previously diagnosed disability is not diagnosed, the examiner should provide a supporting explanation. If no diagnosis is found for any of the claimed disabilities, the examiner should offer an opinion as to whether it is at least as likely as not that the Veteran experiences pain, or other symptoms, which results in an impairment in earning capacity. (b.) Then, opine as to whether it is at least as likely as not (50 percent or better probability) that any right knee disorder, right shoulder disorder, bilateral hip disorder, bilateral ankle disorder, and lumbar spine disorder was caused by a service-connected disability, to include the Veteran’s service-connected status post left knee patellaplasty. (c.) Opine as to whether any right knee disorder, bilateral hip disorder, bilateral ankle disorder, and lumbar spine disorder at least as likely as not proximately aggravated (worsened beyond its natural progression) service-connected disability, to include the Veteran’s service-connected status post left knee patellaplasty. In making these determinations, the examiner must consider all of the relevant medical and lay evidence of record, including the Veteran’s reports of his left knee giving way and falls due to the left knee and the December 2013 private medical opinion, indicating that the Veteran’s right knee disorder, bilateral hip disorder, and lumbar spine disorder were due to his left knee disability. Note: Aggravation of a disability by a service-connected disability must be considered independently of direct causation and must provide adequate reasoning and conclusions on both points. If aggravation is found, identify the baseline level of disability prior to any such aggravation, to the extent possible, based on the available evidence. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, 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.