Citation Nr: 21026376 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 09-08 693 DATE: April 30, 2021 REMANDED Entitlement to service connection for a bilateral knee/leg disability, to include as secondary to service-connected bilateral pes planus, is remanded. Entitlement to service connection for a bilateral ankle disability, to include as secondary to service-connected bilateral pes planus, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from August 1974 to August 1977. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2007 Department of Veterans Affairs (VA) rating decision, which in pertinent part denied service connection for bilateral disabilities of the knees, legs, and ankles. In November 2012, the Board remanded the case to the Regional Office (RO) to afford the Veteran a Travel Board hearing, which was held before the undersigned in March 2013. In July 2014, the Board remanded the case to the RO for additional development. A March 2016 Board decision denied service connection for a bilateral knee/leg disability and a bilateral ankle disability, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). A March 2017 CAVC Order, granted a March 2017 Joint Motion for Remand (JMR) of the parties, thereby vacating the Board’s decision and remanding the matters to the Board for action consistent with the terms of the JMR. In July 2017, August 2019, and October 2020, the Board remanded the case to the RO for additional development. 1. and 2. Entitlement to service connection for a bilateral knee/leg disability and a bilateral ankle disability, to include as secondary to service-connected bilateral pes planus The Board cannot make a fully-informed decision on the appealed matters because the November 2020 VA opinions were deficient in various ways. The examiner did not comment on the disparate diagnoses reflected in the previous examination reports, as was requested. The examiner also did not provide rationale for some of her conclusions, as was requested. For example, she opined that the Veteran’s bilateral knee/leg and ankle pain and disabilities were not caused or aggravated by pes planus because the “available evidence suggests” they were “likely due to his documented history” of post-service conditions and injury (she did not explain how such evidence of record informed her conclusions). Her findings in some respects appear to be based on whether there is documentation in the file pertaining to complaints, evaluation, diagnosis, and treatment for the claimed disabilities (she cited to whether there was “continuity of care”), without consideration of the Veteran’s lay assertions of continuing bilateral knee and ankle pain after separation from service (see VA examination report of April 2011). Additionally, the examiner stated that she was unable to locate documentation of complaints, evaluation, diagnosis, or treatment for a right or left knee condition in service and stated the records for bilateral knee pain date back to the early 2000s; yet, as was noted in the remand, an August 1976 service treatment record shows he was seen for a “trick knee” for two months. Therefore, the examiner’s conclusions on that issue are based on lack of familiarity with the complete record. An addendum opinion should be sought. The matters are REMANDED for the following action: Return the claims file to the VA examiner who furnished the November 2020 opinion, for re-review and an addendum opinion regarding the nature and etiology of the Veteran’s knee/leg and ankle disabilities. [If she is unavailable or unable to provide the addendum opinions sought, send the claims file to another appropriate clinician in orthopedics, for such opinion (and an examination of the Veteran, if one is deemed necessary). Upon review of the claims file, the provider is (again) asked to respond to the following: (a). Identify (by diagnosis) each knee/leg and ankle disability the Veteran now has or has had since the filing of his claim in March 2005. Regarding each diagnosed disability, furnish an opinion whether it is at least as likely as not (a 50 percent or greater probability) that the disability is (a) related to the Veteran’s service from August 1974 to August 1977, to include the documented ankle and knee complaints in 1976; and, if not, (b) caused or aggravated by his service-connected bilateral pes planus. (b). Explain the rationale for all opinions, with reference, as appropriate, to pertinent supporting factual data, supporting medical literature, and prior medical opinions. (For example, if a current disability is due to post-service injury, she should explain what factors, elements, and/or circumstances informed that conclusion.) Comment on (reconcile) the disparate diagnoses reflected in examination reports of April 2011, January 2012, October 2017, April/May 2019, January 2020, and November 2020. (c). The examiner is advised that aggravation is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms. If aggravation by a service-connected disability is found, the examiner should identify, to the extent possible, the approximate baseline level of disability before the onset of the aggravation as well as the level of severity of the disability after the aggravation was completed. (d). The examiner should review the Veteran’s lay reports of continuing bilateral knee and ankle pain after separation from service (see, e.g., VA examination report of April 2011) and opine how the statements comport with generally accepted medical norms. (If a statement is rejected as not credible, there must be explanation why that is so (cite to clinical findings/medical principles that support that conclusion.) The absence of documentation during or after service cannot be the sole basis for rejecting a possible nexus to service, but providing an [alternate] likely etiology, beyond an assertion that there was no documentation of the disability during service and for year after service, may overcome this. For example, a finding that there was no “continuity of care” between a period of military service and 2003 (for knee complaints) or 2000 (for ankle complaints) is not determinative of whether there was continuity of symptomatology of a disability (the lay reports of continuity must be addressed). If an opinion sought cannot be given without resort to mere speculation, (to satisfy legal requirements) state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts) or by a deficiency in the record or examiner (additional facts are required, or the examiner lacks the requisite knowledge or training). All opinions must include a thorough explanation of rationale with citation to supporting clinical data and medical principles. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.