Citation Nr: 21013105 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-18 082 DATE: March 8, 2021 REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a right knee disability, claimed as secondary to a bilateral ankle disability, is remanded. Entitlement to service connection for a left knee disability, claimed as secondary to a bilateral ankle disability, is remanded. Entitlement to service connection for a skin condition, to include as due to Agent Orange exposure, is remanded. Entitlement to service connection for headaches, claimed as due to Agent Orange exposure and/or as secondary to a skin condition, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1965 to October 1968, which included service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran and his spouse testified during a Board hearing before the undersigned Veterans Law Judge. The appeal was remanded for further development in December 2017 and December 2019. Unfortunately, another remand is required. 1. Entitlement to service connection for a right ankle disability is remanded. 2. Entitlement to service connection for a right knee disability, claimed as secondary to a bilateral ankle disability, is remanded. Pursuant to the Board’s December 2019 remand directives a VA medical opinion was obtained in August 2020 that diagnosed bilateral ankle degenerative arthritis had its onset in service or within one year of separation from service or is otherwise related to service, to include as a result of his August 1966 left ankle sprain and May 1967 right ankle inversion. In rendering the opinion, the Board specifically instructed the examiner to accept as true the Veteran’s credible reports of several in-service bilateral ankle injuries and continuous ankle problems during and since the in-service injuries. However, in rending his negative opinion, the examiner did not do so, and instead incorrectly relied on lack of documentation of a right ankle injury (notably, a May 1967 service treatment record (STR) contains notation of right ankle inversion) and attributed his disability to post-service employment as a logger. Thus, this opinion was based on an inaccurate factual premise and is inadequate. For these reasons, an addendum opinion from a different examiner is needed to ensure substantial compliance with the Board’s December 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Finally, as the Veteran’s right knee claim is inextricably intertwined with his right ankle claim remanded herein, action on the right knee claim is deferred pending this development. 3. Entitlement to service connection for a left knee disability, claimed as secondary to a bilateral ankle disability, is remanded. The Veteran was afforded a VA examination in December 2020. The examiner opined negatively on the Veteran’s left knee disability being due to his service-connected left ankle disability. However, the opinion lacks sufficient rationale and failed to adequately address both prongs of secondary service connection: proximate cause and aggravation. Thus, on remand an addendum opinion is warranted from a different examiner. 4. Entitlement to service connection for a skin condition, to include as due to Agent Orange exposure, is remanded. Pursuant to the Board’s December 2019 remand directives, a VA medical opinion was obtained in April 2020. The Board asked the examiner to opine on whether it is at least as likely as not that that diagnosed folliculitis and/or basal cell carcinoma, had their onset in service or are otherwise related to service, to include as a result of treatment for left ear pyoderma in January 1967 and/or conceded herbicide agent exposure therein. However, in rending his negative opinion, the examiner provided limited rationale and did not address conceded herbicide agent exposure as specifically requested by the Board. Thus, the opinion is inadequate. For these reasons, an addendum opinion from a different examiner is needed to properly address direct service connection and to ensure substantial compliance with the Board’s December 2019 remand directives. Stegall, 11 Vet. App. 268. 5. Entitlement to service connection for headaches, claimed as due to Agent Orange exposure and/or as secondary to a skin condition, is remanded. Pursuant to the Board’s December 2019 remand directives, a VA medical opinion was obtained in April 2020. The Board asked the examiner to opine on whether it is at least as likely as not that the Veteran’s diagnosed migraine headaches and/or tension headaches had their onset in service or is otherwise related to service, to include conceded herbicide agent exposure therein. However, in rending his negative opinion, the examiner offered an alternative etiology, provided limited rationale, and did not address conceded herbicide agent exposure as specifically requested by the Board. Thus, the opinion is inadequate. For these reasons, an addendum opinion from a different examiner is needed to properly address direct service connection and to ensure substantial compliance with the Board’s December 2019 remand directives. Stegall, 11 Vet. App. 268. Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With the necessary assistance from the Veteran, obtain any outstanding private treatment records. 3. Then, obtain an addendum opinion from an examiner other than the February 2018 and August 2020 examiners that addresses the etiology of the Veteran’s right ankle disability. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. (a) Following a review of the claims file ,the examiner should opine on whether it is at least as likely as not (50 percent or greater probability) that diagnosed right ankle degenerative arthritis (see October 2011, February 2018, and August 2020 VA examination reports) had its onset in service or within one year of separation from service or is otherwise related to service, to include as a result of his May 1967 right ankle inversion. In addressing this question, please address and accept as true the Veteran’s credible reports of several in-service right ankle injuries and continuous right ankle problems during and since the in-service injuries. See December 2016 Hearing Transcript at 3-4. (b) Please provide a discussion of whether a nexus relationship between the Veteran’s right ankle degenerate arthritis and service is “medically consistent” with documentation of a right ankle inversion in service and the Veteran’s conceded reports of several in-service right ankle injuries and continuous ankle pain since that time. See May 1967 STR and December 2016 Hearing Transcript at 3-4. Otherwise, the opinion will be returned as inadequate. A complete rationale must be provided. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Then, obtain an addendum opinion from an examiner other than the November 2020 examiner that addresses the etiology of the Veteran’s left knee disability. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine on whether it is at least as likely as not (50 percent or greater probability) that diagnosed left knee degenerative arthritis (see November 2020 VA examination report) (i) proximately due to or (ii) has been aggravated (worsened) by service-connected left ankle degenerative arthritis. A comprehensive rationale must be furnished for all opinions expressed. Two opinions: one for proximate cause and one for aggravation are required. The examiner should note that the primary disability, left ankle degenerative arthritis, need not be service-connected, or even diagnosed, at the time left knee degenerative arthritis was incurred and reliance on this fact will render the opinion inadequate. If the examiner is unable to provide a medical opinion, then he or she should provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Then, obtain an addendum opinion from an examiner other than the February 2018 and August 2020 examiners that addresses the etiology of the Veteran’s skin disability. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. (a) Following a review of the claims file, the examiner should opine on whether it is at least as likely as not (50 percent or greater probability that diagnosed (see February 2018 and August 2020 VA examination reports) folliculitis and/or basal cell carcinoma, had their onset in service or are otherwise related to service, to include as a result of treatment for left ear pyoderma in January 1967 and/or conceded herbicide agent exposure therein. In addressing this question, the examiner is advised that the fact that a given disability is not one for which service connection can be presumptively awarded cannot be used as the sole basis for a negative opinion and relying on such will result in the opinion being inadequate. (b) Please provide a discussion of whether a nexus relationship between the Veteran’s folliculitis and basal cell carcinoma and service is “medically consistent” with documentation of left ear pyoderma in service and the Veteran’s conceded exposure to herbicide agents. See January 1967 STR. Otherwise, the opinion will be returned as inadequate. A complete rationale must be provided. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Then, obtain an addendum opinion from an examiner other than the February 2018 and August 2020 examiners that addresses the etiology of the Veteran’s headaches. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine on whether it is at least as likely as not (50 percent or greater probability that diagnosed migraine headaches and/or tension headaches (see April 2011 VA treatment record and February 2018 and August 2020 VA examination reports): (a) had their onset in service or is otherwise related to service, to include conceded herbicide agent exposure therein; (b) are proximately due to folliculitis and/or basal cell carcinoma if service-connected in light of item (5) above; or (c) have been aggravated (worsened beyond natural progression) by folliculitis and/or basal cell carcinoma if service-connected in light of item (5) above. In addressing question (a), the examiner should provide an opinion on whether a nexus relationship between migraine headaches/tension headaches and service is “medically consistent” given his conceded exposure to herbicide agents. In addressing questions (b) and (c), the examiner must address the Veteran’s contentions that before an outbreak of his skin condition he experiences “fatigue followed by a headache.” See October 2011 Veteran Statement. The examiner is advised that the fact that a given disability is not one for which service connection can be presumptively awarded cannot be used as the sole basis for a negative opinion and relying on such will result in the opinion being inadequate. Additionally, relying on the lack of documentation of headaches in the Veteran’s STRs will also result in the opinion being inadequate. A complete rationale must be provided. If an opinion cannot be provided without resort to speculation, the examiner must so state and then provide a rationale for why the requested opinion could not be provided without resorting to speculation. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Asante, Ruby 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.