Citation Nr: 21024951 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-47 464 DATE: April 27, 2021 REMANDED Entitlement to a disability evaluation in excess of 10 percent for a left ankle disability prior to March 5, 2018, is remanded. Entitlement to a disability evaluation in excess of 20 percent for a left ankle disability from March 5, 2018, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to a left ankle disability, is remanded. Entitlement to service connection for a low back disability, to include as secondary to a left ankle disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1981 to December 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2014 and September 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). With respect to the Veteran’s claims for increased ratings for a left ankle disability, the Board increased the Veteran’s disability evaluation for his left ankle disability from 10 percent to 20 percent disabling, effective March 5, 2018, in a June 2019 decision. However, the full benefits sought on appeal were not granted. Thereafter, the Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (the Court). While the case was pending before the Court, however, the parties entered into a Joint Motion for Remand (JMR). Pursuant to the terms of the JMR, the parties agreed that the Board erred by failing to address VA’s failure to obtain complete VA treatment records. As such, the Court vacated the June 2019 decision and remanded it for further development. The matter now returns to the Board. 1. Left ankle Pursuant to its duty to assist claimants in substantiating their claims for benefits, VA is required to make reasonable efforts to obtain all federal and private records adequately identified by the claimant and relevant to his claim. See Golz v. Shinseki, 5901 F.3d 1317, 1322 (Fed. Cir. 2010). When records are in the custody of the federal government, reasonable efforts consist of “as many requests as are necessary” unless it concludes that the records sought do not exist or that further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). Here, as described in the text of the JMR, the Veteran submitted a VA Form 21-4142 on March 12, 2018, indicating that he was receiving ongoing treatment at the Philadelphia VA Medical Center. At that point, only VA treatment records from up until March 5, 2018, had been associated with the claims file. Although VA requested his outstanding records, it received an April 2018 medical records rejection notice because the provider, the Philadelphia VA Medical Center, was non-private. VA did not make any other efforts to associate the Veteran’s outstanding VA treatment records with the claims file prior to the issuance of the June 2019 Board decision. Although the RO has subsequently added VA treatment records from after March 5, 2018, into the claims file, it has not yet reviewed these VA treatment records in connection with his claims for increased ratings for his left ankle disability. Moreover, the most recent VA treatment records appear to be from April 2020. As such, it appears that there are still outstanding VA treatment records that have not yet been associated with the record. As stated in the terms of the JMR, remand is thus necessary to obtain and associate with the claims file any outstanding VA treatment records before the claims can be adjudicated on their merits. 2. Right knee and low back The Veteran has current diagnoses of inflammatory arthritis in the right knee, as well as lumbosacral strain, bulging discs, and spondylosis in the low back. Generally, he alleges that these disabilities are secondary to his service-connected left ankle disability. More specifically, he argues that overcompensating for his left lower extremity caused him to alter his gait, which caused or exacerbated his right knee and low back conditions. See November 2020 Form 9. The Veteran was afforded VA examinations on his low back and right knee in April 2018. With respect to the right knee, the VA examiner ultimately opined that the Veteran’s right knee disability was less likely than not proximately due to his left ankle disability, because inflammatory arthritis was a separate condition anatomically and not caused by an ankle condition, and because the knee did not begin to have symptoms until 2015, many years after the ankle condition manifested. Additionally, she opined that his right knee disability was not aggravated by his left ankle disability, because inflammatory arthritis is a separate condition and is not due to an ankle condition. Similarly, with respect to the low back, the examiner opined that the low back disability was not proximately due to the left ankle disability because his back pain did not start until 2015, several years after his discharge from service, and because bulging discs were a normal part of the aging process. As for aggravation, she opined that the Veteran’s low back disability had not been aggravated by the left ankle disability because the back and left ankle were separate areas of the body and the back condition did not manifest until several years after the left ankle condition. The Board finds the April 2018 examiner’s opinion is flawed for various reasons. First, the VA examiner’s rationales for both the right knee and low back are conclusory. Although she separately addressed whether the disabilities were caused or aggravated by the left ankle disability, the VA examiner failed to provide a sufficiently detailed rationale for either opinion. For instance, she stated that the left ankle disability did not cause or aggravate the right knee or low back disabilities because the right knee and low back were separate areas of the body. However, she failed to explain why this was relevant. Additionally, the examiner concluded that his right knee and back disabilities could not be secondary to his left ankle disabilities because they appeared later in life than his left ankle disability, without explaining why they could not have been related to or aggravated by the left ankle disability. An opinion that does not provide a rationale or is conclusory is inadequate. See Stefl v. Nicholson, 21 Vet. App. 120. Furthermore, the examiner appears to have taken for granted that nonservice-connected disabilities in one part of the body cannot be causes or aggravated by service-connected disabilities in other parts of the body. The Board notes that such an assumption is contradicted by the existence of the concept of secondary service connection in the first place. Opinions that are based on inaccurate premises are entitled to no probative weight. Reonal v. Brown, 5 Vet. App. 458 (1993). Moreover, the VA examiner failed to address the Veteran’s contentions that his left ankle disability altered his gait, which subsequently led to his low back and right knee disabilities. An opinion that does not consider all the relevant evidence of record, including lay statements, is inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, remand is warranted to obtain a VA addendum opinion on the nature and etiology of the Veteran’s right knee and low back disabilities. Accordingly, the matters are REMANDED for the following action: 1. After obtaining appropriate authorization, obtain and associate with the claims file all outstanding VA treatment records and relevant, outstanding private treatment records. In particular, obtain any VA treatment records from after April 27, 2020. 2. Thereafter, obtain addendum VA medical opinions with respect to the nature and etiology of the Veteran’s low back and right knee disabilities. The Veteran’s claims file and a copy of this remand should be furnished to the examiner, who should indicate that he or she has reviewed the claims file. For each disability, the examiner is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) the Veteran’s service-connected left ankle disability either (a) caused, or (b) aggravated the disability. The examiner is reminded that causation and aggravation are distinct concepts that much be addressed separately. “Aggravation” is defined as worsening beyond the natural progression of the disability. A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. Additionally, the examiner is reminded to consider the Veteran’s lay statements regarding the nature and onset of his disabilities. If the examiner is unable to provide the requested opinion(s) without performing a physical examination of the Veteran, a new examination should be scheduled to assess the etiology, onset, nature, and severity of the Veteran’s right knee and/or low back disability. (Continued on the next page)   3. After these directives are completed, as well as any other development reasonably raised by the record, readjudicate the issues on appeal. All evidence of record must be considered. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.