Citation Nr: 21011140 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 12-27 604 DATE: March 1, 2021 REMANDED Entitlement to service connection for a bilateral knee disorder, to include a secondary to service-connected bilateral pes planus with degenerative joint disease (bilateral foot disability) and/or service-connected bilateral ankle soft tissue impingement (bilateral ankle disability), is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1999 to September 2003. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a June 2016 hearing. This issue was previously before the Board in October 2017 and August 2020, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Entitlement to service connection for a bilateral knee disorder, to include a secondary to service-connected bilateral foot disability and/or service-connected bilateral ankle disability, is remanded. Remand is required for substantial compliance with the August 2020 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The August 2020 Board remand instructed the RO to obtain and associate with the claims file any outstanding private treatment records (PTRs), and to obtain an addendum VA medical opinion. In September 2020, the RO sent a letter to the Veteran asking that he identify and authorize for release any PTRs. In October 2020, the Veteran replied to the letter identifying the West Palm Beach VA Hospital, but no private treatment providers. In December 2020, the RO obtained an addendum VA medical opinion. First, remand is required for an addendum VA medical opinion. 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). 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). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The December 2020 examiner provided a negative nexus opinion on a direct basis. The August 2020 Board remand instructed the examiner to address the following: 1) the August 2003 separation report of medical assessment endorsing swollen or painful joints; 2) the June 2016 Board hearing testimony where the Veteran asserted that he injured his knees by jumping from trucks and by banging his knees on Howitzers, and that he was merely given Motrin for pain in the field; 3) the Veteran’s assertions of continuity of symptomatology since separation from service; and 4) the December 2017 VA examination where the Veteran reported injuring his knees running on stony terrain. While the examiner noted that they reviewed all medical records and those documents as instructed by the August 2020 Board remand, they only actually addressed the August 2003 report, stating that although the Veteran endorsed swollen or painful joints, knee pain was not noted by the report of physical exam. The examiner failed to address the lay testimony from the June 2016 Board hearing, or December 2017 VA examination. The examiner stated that post service medical records are negative for knee pain until 2010 when he was diagnosed with bilateral patellofemoral pain syndrome. The examiner explained that patellofemoral pain syndrome is an overuse syndrome often caused by obesity and resulting load placed on knee joints, and that the Veteran’s body mass index has been consistent with a diagnosis of clinical obesity since 2009. The examiner opined that with the absence of documented trauma to the knees, a gap of 8 years from separation to first documentation of knee pain in 2010, and a history of working security, there is no evidence to support a direct service connection for the bilateral knee condition. Regarding causation on a secondary basis theory, the examiner also provided a negative nexus opinion, explaining that the bilateral knee disorder and the bilateral foot and ankle disabilities are not medically related. The examiner stated that that an injury or disease of one lower extremity would not have any significant impact on another lower extremity joint unless the injury to the feet resulted in major muscle or nerve damage causing partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than four or five centimeters and affecting their gait pattern. The examiner opined that the bilateral foot disability is not of the severity to result in a right or left knee condition. Regarding aggravation on a secondary basis theory, the examiner merely duplicated the opinion for causation without providing any additional supporting rationale. Accordingly, remand is required for an addendum VA medical opinion. Second, remand is required to obtain missing medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2019). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, and records from facilities with which the VA has contracted. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). February 2018 VA treatment records indicate that outside treatment records were scanned into Vista imaging. The Board does not have access to Vista imaging, so these records will need to be separately added to the Veteran’s claims file. Finally, as noted above, when asked in September 2020 to identify and authorize for release any outstanding PTRs, the Veteran identified the West Palm Beach VA Hospital. While on remand, the Veteran should be provided with another opportunity to identify and authorize for release any outstanding PTRs. 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, specifically any outside treatment records scanned into Vista imaging. 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 or her 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, obtain an addendum opinion regarding the etiology of the bilateral knee disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral knee disorder had onset in, or is otherwise related to, active service. (b) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the bilateral knee disorder is caused by the service-connected bilateral pes planus with degenerative joint disease. (c) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the bilateral knee disorder is aggravated by the service-connected bilateral pes planus with degenerative joint disease. (d) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the bilateral knee disorder is caused by the service-connected the bilateral ankle soft tissue impingement. (e) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the bilateral knee disorder is aggravated by the service-connected bilateral ankle soft tissue impingement. (f) The examiner must address the following: 1) the August 2003 separation report of medical assessment endorsing swollen or painful joints; 2) the Veteran’s June 2016 Board hearing testimony that he injured his knees by jumping from trucks and by banging his knees on Howitzers, and that he was given Motrin for the knee pain while in the field; 3) the Veteran’s assertions of continuity of symptomatology; 4) the Veteran’s lay statement from the December 2017 VA examination asserting that he injured his knees while running in stony terrain; and 5) the December 2020 addendum VA medical opinion. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.