Citation Nr: 21011263 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-41 101 DATE: March 1, 2021 REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to an initial compensable rating for proximal phalanx fracture, 1st toe with osteoarthritis, to include consideration of whether separate ratings are warranted for left foot pes planus, is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from May 1982 to September 1982 and on active duty from September 1983 to July 1987. The Veteran appeals an August 2016 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in March 2020. A transcript is of record. 1. Bilateral Knee Condition The Veteran claims service connection for a bilateral knee condition secondary to his service-connected proximal phalanx fracture, 1st toe with osteoarthritis. See March 2020 Board hearing tr. at 4. Specifically, the Veteran alleges his left 1st toe condition has caused an altered gait that in turn led to knee problems. However, the Veteran has not been afforded a VA examination to assess the nature and etiology of his bilateral knee condition. Such must be accomplished on remand. Importantly, Dr. J.C.’s April 2020 opinion noted the Veteran’s left foot pes planus caused the Veteran’s left knee pain due to gait changes. Therefore, there is a possibility that the Veteran’s left foot condition impacts his knees. However, the Veteran is service-connected for a left toe fracture and osteoarthritis and not pes planus. See August 2016 VA examination report and rating decision. Nevertheless, remand is required to determine the exact nature and functional limitations of the Veteran’s bilateral knee condition and to determine their etiology. 2. Proximal Phalanx Fracture The record indicates foot treatment by Dr. J. Campau, Dr. M. Holland, and Dr. Y. Aoun. See May 2016 Dr. J.C. letter; December 2016 Dr. M.H. letter; March 2020 Dr. Y.A. treatment records. However, it does not appear that all treatment records have been obtained for these medical provided. Therefore, remand is required to try and obtain these treatment records. The Veteran stated his condition worsened since his 2016 VA examination. Where a Veteran contends that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). On remand, the AOJ should afford the Veteran new VA examination to determine the current severity of his left foot condition. Additionally, potential entitlement to a separate rating was raised during the Board hearing. See March 2020 Board hearing tr. at 9-11. The Board notes the Veteran generally claimed service-connection for left foot problems. See March 2016 VA Form 21-526EZ. The August 2016 VA examination report alluded to the existence of pes planus and an in-service notation of pes planus. However, the VA examiner only opined as to the Veteran’s left 1st toe fracture and osteoarthritis. As noted above, the Veteran currently has pes planus. It is unclear whether the Veteran’s currently service-connected condition contemplates his left foot pes planus or whether he is entitled to a separate rating. Therefore, remand is required for further development. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his bilateral knees and left foot that are not already of record, to include private treatment records by Dr. J. Campau, Dr. M. Holland, and Dr. Y. Aoun. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination to determine the nature and etiology of his bilateral knee condition and the severity of his left foot condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, if deemed necessary, the examiner should identify all left knee, right knee, and left foot conditions present. If any symptoms are not attributable to a diagnosis, any functional loss should be described. Then, for each identified condition and/or functional loss present, the examiner is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran’s left knee condition and/or left knee functional loss, was incurred in, or otherwise related, to his time on active service? Is it at least as likely as not that the Veteran’s left knee condition and/or left knee functional loss, was CAUSED by his service-connected proximal phalanx fracture, 1st toe with osteoarthritis? Is it at least as likely as not that the Veteran’s left knee condition and/or left knee functional loss, was AGGRAVATED by his service-connected proximal phalanx fracture, 1st toe with osteoarthritis? The examiner is to consider Dr. J.C.’s April 2020 opinion. Is it at least as likely as not that the Veteran’s right knee condition and/or right knee functional loss, was incurred in, or otherwise related, to his time on active service? Is it at least as likely as not that the Veteran’s right knee condition and/or right knee functional loss, was CAUSED by his service-connected proximal phalanx fracture, 1st toe with osteoarthritis? Is it at least as likely as not that the Veteran’s right knee condition and/or right knee functional loss, was AGGRAVATED by his service-connected proximal phalanx fracture, 1st toe with osteoarthritis condition? For any left foot condition separately diagnosed apart from the Veteran’s service-connected proximal phalanx fracture, 1st toe with osteoarthritis, to specifically include pes planus Is it at least as likely as not that the Veteran’s left footleft foot condition and/or left foot functional loss, was incurred in, or otherwise related, to his time on active service? Is it at least as likely as not that the Veteran’s left foot condition and/or left foot functional loss, was CAUSED by his service-connected proximal phalanx fracture, 1st toe with osteoarthritis? Is it at least as likely as not that the Veteran’s left foot condition and/or left foot functional loss, was AGGRAVATED by his service-connected proximal phalanx fracture, 1st toe with osteoarthritis? The examiner is to consider Dr. M.H.’s December 2016 letter. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should identify any symptoms and functional impairments due to the Veteran’s condition and discuss the effect of the Veteran’s condition on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). (Continued on the next page) 3. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.