Citation Nr: 21014537 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 18-02 683 DATE: March 12, 2021 ORDER Service connection for a right foot disorder, to include right claw foot and hammer toes, as secondary to the service-connected right ankle degenerative joint disease, is granted. REMANDED Entitlement to a separate rating for residuals of a left knee meniscus disability is remanded. Entitlement to an effective date earlier than October 12, 2016 for the grant of a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran has right claw foot and hammer toes which is proximately due to or the result of his service-connected right ankle degenerative joint disease. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for a right foot disorder, to include right claw foot and hammer toes, as secondary to the service-connected right ankle degenerative joint disease, are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1949 to July 1953. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated April 2014 of a Department of Veterans’ Affairs (VA) Regional Office (RO). In June 2018, the Veteran withdrew his request for a Board hearing. In November 2018, the Board, in pertinent, remanded the Veteran’s service connection claims for a right foot disorder and a right ankle disorder, as well as his claim for a separate disability rating for residuals of a left knee meniscus disability for further development to include obtaining medical opinions addressing the etiology of the right foot and right ankle disorders. The Board also remanded the Veteran’s claim for entitlement to a TDIU as inextricably intertwined with the other remanded issues. See Board Decision and Remand dated November 16, 2018. The Board has identified deficiencies in the VA examination and medical opinion obtained on remand addressing the etiology of residuals of the left knee meniscus disability. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). As discussed below in greater detail, the claim is remanded. In an October 2020 rating decision, the RO granted service connection for a right ankle disorder and entitlement to a TDIU, effective October 12, 2016. The October 2020 grant of service connection for a right ankle disorder is considered a full grant of the benefits on appeal for that claim. As such, the issue is no longer before the Board for appellate consideration. AB v. Brown, 6 Vet. App. 35 (1993). However, the United States Court of Appeals for Veterans Claims has held that when, as here, the issue of entitlement to a TDIU becomes part and parcel of an underlying appeal for a higher disability rating, the grant of a TDIU does not bifurcate the appeal and the claimant need not file a notice of disagreement to challenge the effective date assigned for the award of a TDIU. If the grant of a TDIU does not encompass the entire disability rating period on appeal, it serves as a partial grant and the remaining period remains in appellate status. Harper v. Wilkie, 30 Vet. App. 356, 360-361 (2018). Therefore, the issue of entitlement to an effective date earlier than October 12, 2016 for the grant of a TDIU, as part and parcel of the underlying increased rating claim for the left knee disability, remains on appeal, and is addressed in the Remand section below. Service Connection Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Right Foot Disorder The Veteran asserts entitlement to service connection for right foot disorders he claims developed as a result of his service-connected left knee disability. See Report of General Information received July 12, 2012. As an initial matter, the Board recognizes that the Veteran is currently diagnosed with disorders of the right foot, specifically claw foot and hammer toes. See VA foot examination report dated August 2, 2013. Pursuant to the Board’s November 2018 remand, the Veteran was afforded a VA ankle examination in October 2020. The examiner opined that the Veteran’s right ankle degenerative joint disease with varus deformity is at least as likely as not proximately due to the Veteran’s service-connected left knee degenerative arthritis and resulted in leg shortening, which in turn caused an irregular gait and subsequent degeneration of the right ankle. See VA medical opinion dated October 12, 2020 at pg. 12. As noted above, service connection for the right ankle disability was granted in an October 2020 rating decision. Upon review, the Board finds that entitlement to service connection for the currently diagnosed disorders of the right foot, claw foot and hammer toes, as secondary to his service-connected right ankle degenerative joint disease is warranted. First, as noted above, the Veteran has been diagnosed with right claw foot and hammer toes. As such, the first element of secondary service connection, evidence of a current disability, is met. Second, the Board acknowledges that the Veteran was granted service connection for right ankle degenerative joint disease with varus deformity in an October 2020 rating decision. Therefore, the second element of secondary service connection, evidence of a service-connected disability, is met. Review of the record reveals that in August 2013, a VA examiner opined that the Veteran’s right foot hammer toes and claw foot were less likely than not caused by his service-connected left knee degenerative arthritis, but rather were “caused by severe and painful arthritis in his right ankle.” See VA foot examination report dated August 2, 2013 at pg. 8. The examiner emphasized that the Veteran’s hammertoes are “not related to the injury of the left knee that he sustained in 1951.” Id. The August 2013 medical opinion is competent, credible and probative: It was authored by a licensed physician who reviewed the Veteran’s claims file and was therefore familiar with the Veteran’s symptoms, diagnoses, and treatment of his right foot and ankle disorders; the opinion was based on a review of the evidence of record as well as lay statements of the Veteran. The opinion is consistent with the medical evidence of record and contains a clear conclusion connected by a reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). Notably, there are no medical opinions or other competent medical evidence of record that weighs against the VA opinion. Accordingly, the Board finds the August 2013 VA examiner’s opinion highly probative, competent and persuasive medical evidence in this case, thereby satisfying the third element of secondary service connection, evidence of a nexus between the service-connected disability and the current disability. Having satisfied the three elements of secondary service connection, the Board resolves reasonable doubt in the Veteran’s favor and finds that the Veteran’s right claw foot and hammer toes were caused or aggravated by his service-connected right ankle degenerative joint disease. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.310; Wallin, 11 Vet. App. at 512. REASONS FOR REMAND Although the Board regrets the additional delay, remand is again necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2020). Left Knee Disability Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, as noted above, a Board remand confers on the claimant, as a matter of law, the right to compliance with the remand order. Stegall, supra. Here, the Board finds deficiencies in the October 2020 VA examination that require clarification prior to determining whether a separate rating is warranted for residuals of a left knee meniscus disability. In its November 2018 Remand, the Board observed that a February 2016 statement from private doctor M. White noted that radiographs of the Veteran’s left knee showed severe joint degeneration and a complete absence of the medial cartilage. The Board specifically directed that the VA examiner indicate “whether there is a dislocated semilunar cartilage in the left knee, and, if so, describe all related symptoms, to include frequent episodes of locking, pain, and effusion into the joint.” See Board Remand dated November 16, 2018 at pg. 19; 38 C.F.R. § 4.71a, DC 5258. The October 2020 VA examiner concluded that the Veteran has never had a meniscal condition and left the section of the disability benefits questionnaire (DBQ) for identifying meniscal symptoms blank, concluding on the basis of Dr. White’s 2016 finding of a complete absence of the medial cartilage that “it is not possible to determine what symptoms are coming from the semilunar cartilage if they are not present.” See VA knee and lower leg conditions DBQ dated October 12, 2020 at pgs. 1, 13; VA medical opinion dated October 12, 2020 at pg. 6. However, Dr. White stated only that the Veteran’s left knee “medial” cartilage was absent, not that all left knee cartilage was absent. See Treatment notes and correspondence from Dr. White dated February 25, 2016. This oversight by the October 2020 VA examiner would likely have been avoided had new imaging studies of the Veteran’s left knee been obtained. At present, the residuals of a left knee meniscus disability cannot be evaluated because neither the condition of the left knee cartilage nor any associated symptoms are known. Although the absence of knee joint cartilage from erosion may arguably be the functional equivalent of removal of semilunar cartilage contemplated by Diagnostic Code 5259, the Board will not speculate as to the current condition of the Veteran’s left knee joint or the nature of any related symptoms. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (The Board may consider only independent medical evidence to support its findings and may not substitute its own unsubstantiated medical conclusions). Lastly, the Board recognizes that medical records reflect that the Veteran’s left leg is 2.5 cm shorter than the right leg, a discrepancy the October 2020 VA examiner attributed to “advanced DJD of the left knee, which is a known complication of advanced arthritis.” See VA knee and lower leg conditions DBQ dated October 12, 2020 at pg. 17. Accordingly, remand is warranted to obtain an addendum to the October 2020 VA examination report and opinion as to the extent of cartilage erosion in the left knee joint, and to identify the nature and extent of the Veteran’s symptoms attributable to existing, eroded, and/or absent cartilage. Additionally, adjudicators are to consider whether separate ratings are warranted for residuals of a left knee meniscus disability and left leg length discrepancy. TDIU The issue of an effective date prior to October 12, 2016 for entitlement to a TDIU is inextricably intertwined with the issues of separate ratings for residuals of a left knee meniscus disability and leg length discrepancy. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The Board notes that the Veteran’s consistent contention that he is unable to obtain gainful employment due to service-connected disabilities predates the period on appeal. See Veteran’s correspondence dated May 11, 2001; Representative’s correspondence dated February 13, 2013. Accordingly, the issue of the effective date for a TDIU is remanded. The matter is REMANDED for the following action: 1. Implement the Board’s decision herein granting service connection for right claw foot and hammer toes as secondary to the service-connected right ankle degenerative joint disease. 2. Ensure that all outstanding VA treatment records are associated with the claims file. 3. Then, schedule the Veteran for examination of his left knee by the same VA examiner who conducted the October 2020 examination, if available, as to the nature and severity of residuals of a left knee meniscus disability. The claims file, and a copy of this Remand, must be made available to, and be reviewed by, the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. *Obtain NEW diagnostic imagery of the Veteran’s left knee joint. After a complete review of the claims file, the examiner is asked to provide an opinion with complete rationale addressing the following: (a) Considering new diagnostic imagery, is there dislocated semilunar cartilage, medial and/or lateral, in the left knee, and/or complete or partial erosion of semilunar cartilage, and if so, describe ALL related symptoms attributable to existing, eroded, and absent cartilage, to include frequent episodes of locking, pain, and effusion into the joint from the earlier of the commencement of the rating period in May 2012 or from the approximate date of onset of symptoms. In doing so, the examiner should note, consider and weigh the Veteran’s lay statements describing observable symptoms. A complete rationale for all requested opinions shall be provided. 4. Ensure that the examiner(s) has substantially responded to the questions posed by the Board, and if not, take corrective action. 6. Then, readjudicate the remanded claims, to include consideration of a separate rating for the Veteran’s left leg length discrepancy identified in the October 2020 VA knee and lower leg conditions DBQ. If, after readjudication, the Veteran still does not meet the schedular criteria for a TDIU prior to October 12, 2016, REFER the TDIU claim for the entire appellate period prior to October 12, 2016 to the Director of Compensation for consideration of whether an extraschedular TDIU is warranted. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell, Associate Attorney 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.