Citation Nr: 21021615 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-11 305 DATE: April 13, 2021 REMANDED 1. Entitlement to service connection for right knee disability is remanded. 2. Entitlement to service connection for right foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1968 to March 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in October 2017, which requested review by a Decision Review Officer (DRO). The RO issued a statement of the case in July 2018. In August 2018, the Veteran filed a timely VA form 9. In March 2019, the Board remanded the Veteran’s claims for further development. 1. Entitlement to service connection for right knee disability. The Veteran contends that he is entitled to service connection for right knee disability. Upon review of the evidence of record, the Board finds additional development is required before a decision can be made on the Veteran’s claim. The February 2020 examiner determined that the Veteran does not have a current right knee disability. However, the examiner failed to address whether the Veteran’s pain could have been proximately due to or caused by his service-connected left knee condition. The examiner opined that there is no evidence of pain on passive range of motion and no evidence of pain on non-weight bearing. The Veteran is competent to report pain, and the Board finds that the Veteran did have a diagnosis of a right knee condition at his April 2017 VA examination. The examiner must give due consideration to all medical and lay evidence, considering all statements and content of the records. Moreover, the requirement of a current disability is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. See McLain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, the fact that the Veteran’s claimed disability may have resolved at the time of the February 2020 VA opinion is not sufficient reason to determine that the Veteran did not have a diagnosis of right knee condition during the pendency of his claim. The examiner was asked to provide an opinion as to the nature and etiology of any right knee disability. The Board acknowledges that the February 2020 examiner opined that the Veteran does not have a current right knee disability, however the Veteran’s record indicates a history of a right knee condition. Therefore, the examiner should have provided an opinion as to the nature and etiology of the Veteran’s right knee disability. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is necessary in this matter. Entitlement to service connection for right foot disability. The Veteran contends that he is entitled to service connection for right foot disability. Upon review of the evidence of record, the Board finds additional development is required before a decision can be made on the Veteran’s claim. In February 2020, the Veteran was afforded a new in-person VA examination. The examiner noted that the Veteran is diagnosed with flat foot (pes planus). The examiner noted that the Veteran contends that his right foot disability began in service due to marching and has gotten worse over the past ten years. The examiner noted that the Veteran’s records show bilateral foot x-rays done in June 2017 that showed mild bilateral pes planus. The examiner noted that there was no mention of plantar fasciitis in the Veteran’s records. The examiner also noted that there were no records of the Veteran having complaints or diagnosis or treatment of bilateral pes planus or plantar fasciitis during service and immediately after service. The examiner opined that it is less likely than not that the Veteran’s current condition of pes planus was caused by or related to active service. The examiner opined that the Veteran’s current condition of right foot pes planus and plantar fasciitis was not aggravated beyond its natural progression by his service-connected left knee osteoarthritis. While the examiner provided an opinion on direct service connection and on the aggravation prong as it relates to secondary service connection, the examiner failed to provide an opinion as to whether the Veteran’s current diagnosis of pes planus was proximately caused by his service-connected left knee osteoarthritis. Furthermore, the examiner was asked to determine the nature and etiology of any right foot disability. The examiner did not provide an opinion as to the nature and etiology of the Veteran’s right foot disability. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11 Vet. App. 268. Therefore, remand is necessary in this matter. The matters are REMANDED for the following action: 1. Obtain an addendum opinion, or a new VA examination if deemed necessary by the VA examiner, to determine the nature and etiology of the Veteran’s claimed right knee and right foot disabilities. The entire claims file must be made available to the reviewing examiner and the examiner shall indicate in the report that the claims file was reviewed. 2. The examiner is asked to provide the following opinions: a. Is it at least as likely as not that the Veteran has had a current right knee disability at any time during the pendency of his claim? Upon what facts and medical principles do you base this opinion? The examiner is advised that the Veteran was previously diagnosed with a right knee condition in April 2017, and although this condition may have subsequently resolved, a right knee diagnosis during the pendency of his claim satisfies the requirement of a current disability. b. If the answer to (a) is affirmative, the examiner is asked to opine whether it is as least as likely as not that the Veteran’s claimed right knee condition is caused by an in-service injury, event, or disease? Upon what facts and medical principles do you base this opinion? c. If the answer to (b) above is negative, the examiner is asked to opine whether it is at least as likely as not that the Veteran’s claimed right knee condition is proximately due to his service-connected left knee disability? Upon what facts and medical principles do you base this opinion? d. If the answer to (c) above is negative, the examiner is asked to opine whether it is at least as likely as not that the Veteran’s claimed right knee condition is aggravated by his service-connected left knee disability? Upon what facts and medical principles do you base this opinion? If the examiner finds that the service-connected left knee disability aggravates the Veteran’s right knee disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the right knee disability prior to aggravation. If the examiner is unable to establish a baseline for the right knee disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. e. Is it as least as likely as not that the Veteran’s claimed right foot condition is caused by an in-service injury, event, or disease? Upon what facts and medical principles do you base this opinion? f. If the answer to (e) above is negative, the examiner is asked to opine whether it is at least as likely as not that the Veteran’s claimed right foot condition is proximately due to his service-connected left knee disability? Upon what facts and medical principles do you base this opinion? g. If the answer to (f) above is negative, the examiner is asked to opine whether it is at least as likely as not that the Veteran’s claimed right foot condition is aggravated by his service-connected left knee disability? Upon what facts and medical principles do you base this opinion? If the examiner finds that the service-connected left knee disability aggravates the Veteran’s right foot disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the right foot disability prior to aggravation. If the examiner is unable to establish a baseline for the right foot disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined 3. A full rationale, including reference to supporting clinical data and/or medical literature as deemed appropriate, must be provided for all medical opinions given. If the examiner cannot provide a requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. D. C. JOHNSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, 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.