Citation Nr: 21021972 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-39 087 DATE: April 14, 2021 REMANDED Service connection for a left ankle disability is remanded. Service connection for a right ankle disability is remanded. Service connection for a left knee disability is remanded. Service connection for a right knee disability is remanded. Service connection for bilateral pes planus is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1989 to February 1990 with additional periods of service in the Army National Guard thereafter, including January 2007. This case returns to the Board of Veterans’ Appeals (Board) after a remand to the agency of original jurisdiction (AOJ) in November 2020. Service Connection for Left & Right Ankle Disabilities The Veteran asserts that his ankle problems are related to a January 2007 line-of-duty injury and/or his service-connected plantar fasciitis. In November 2020, the Board remanded for an addendum opinion on the etiology of the claimed disabilities, instructing the examiner to address “any left and/or right ankle disability, to include arthritis, diagnosed at any time during the course of the appeal.” The Board noted that a September 2009 VA examination revealed degenerative arthritis of the ankles. Additionally, a February 2011 VA examiner diagnosed the Veteran with chronic bilateral ankle sprain. The Board also instructed the examiner to consider and discuss the Veteran’s lay statements, testimony and complaints concerning his ankles, including those made to medical providers and previous VA examiners, specifically the March 2020 examiner. The AOJ obtained a new opinion in January 2021, which indicates that the claimed disabilities were less likely than not incurred in or caused by service, and less likely than not proximately due to or aggravated by plantar fasciitis. The examiner stated that the Veteran does not have a diagnosed left or right ankle condition according to previous examinations from May 2018 and March 2020. The examiner provided no other supporting rationale. This opinion is inadequate because it fails to acknowledge the prior diagnoses noted above. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (the “current disability” required for service connection includes a disability shown to be present at the time of filing or during the pendency of a claim). It also fails to address pertinent lay evidence, as the Board instructed. See Miller v. Wilkie, 32 Vet. App. 249, 259–60 (2020) (a VA examiner “must address the veteran’s lay statements to provide the Board with an adequate medical opinion”). Another remand is necessary to ensure compliance with the Board’s previous instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes the effort to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate). Service Connection for Left & Right Knee Disabilities The Veteran asserts that his knee problems are also related to the 2007 injury and/or his service-connected plantar fasciitis. The Board remanded for an addendum opinion on the etiology of the claimed disabilities, instructing the examiner to consider and discuss the Veteran’s lay statements, testimony and complaints concerning his knees, including those made to medical providers and previous VA examiners, specifically the March 2020 examiner. The January 2021 examiner determined, in part, that the claimed disabilities were less likely than not incurred in or caused by service, reasoning that the Veteran’s service treatment records “are negative for any injury or treatment of the right or left knee during the periods of active duty service.” This opinion is based solely on a lack of evidence in the service treatment records, and it does not address any relevant lay evidence, as instructed. It is therefore inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a VA examiner may not ignore favorable lay evidence and rely solely on the absence of contemporaneous medical evidence); Miller, 32 Vet. App. at 259–60. Remand for an adequate opinion is warranted. Stegall, 11 Vet. App. at 271; Barr, 21 Vet. App. at 311. Service Connection for Bilateral Pes Planus The Veteran likewise asserts that his bilateral pes planus is related to the 2007 injury and/or his service-connected plantar fasciitis. Like the claimed disabilities discussed above, the Board remanded for an addendum opinion, instructing the examiner to consider and discuss the Veteran’s lay statements, testimony and complaints concerning pes planus, including those made to medical providers and previous VA examiners. The January 2021 examiner determined that bilateral pes planus was less likely than not incurred in or caused by service, finding no documentation in the service treatment records of a diagnosis or other evidence of pes planus during the Veteran’s periods of active duty service from August 1989 to February 1990 and in January 2007. This opinion is adequate because it fails to discuss the Veteran’s lay statements, such as his testimony that he was diagnosed with pes planus at the same time he was diagnosed with plantar fasciitis. Dalton, 21 Vet. App. at 39-40; Miller, 32 Vet. App. at 259–60. It is also based, in part, on an inaccurate factual premise: podiatry clinic notes in the Veteran’s service treatment records reflect that he was diagnosed with pes planus in 2003, while the examiner’s opinion suggests this diagnosis occurred after January 2007. See Reonal v. Brown, 5 Vet. App. 458, 461 (an opinion based upon an inaccurate factual premise has no probative value). Remand for an adequate opinion is warranted. Stegall, 11 Vet. App. at 271; Barr, 21 Vet. App. at 311. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain addendum medical opinions on the etiology of the Veteran’s claimed left and right ankle disabilities, left and right knee disabilities, and bilateral pes planus. After reviewing the claims file, including this remand, the examiner should address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the claimed left and right ankle disabilities were incurred in service or are otherwise related to service? (b.) Is it at least as likely as not (50 percent or greater probability) that the claimed left and right ankle disabilities were proximately due to or aggravated beyond their natural clinical course by the Veteran’s service-connected bilateral plantar fasciitis? (c.) Is it at least as likely as not (50 percent or greater probability) that the claimed left and right knee disabilities were incurred in service or are otherwise related to service? (d.) Is it at least as likely as not (50 percent or greater probability) that the claimed left and right knee disabilities were proximately due to or aggravated beyond their natural clinical course by the Veteran’s service-connected bilateral plantar fasciitis? (e.) Is it at least as likely as not (50 percent or greater probability) that the claimed bilateral pes planus was incurred in service or is otherwise related to service? (f.) Is it at least as likely as not (50 percent or greater probability) that the claimed bilateral pes planus was proximately due to or aggravated beyond its natural clinical course by the Veteran’s service-connected bilateral plantar fasciitis? The examiner’s opinion must reflect consideration of the Veteran’s lay statements, testimony and complaints concerning his claimed bilateral ankle and knee disabilities and bilateral pes planus, including those made to medical providers and prior VA examiners. 2. Review the medical opinions above to ensure substantial compliance with the Board’s directives. Take any necessary corrective action. 3. Readjudicate the Veteran’s claims. If any claim remains denied, issue a supplemental statement of the case, and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, 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.