Citation Nr: 21027746 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 09-42 542 DATE: May 6, 2021 REMANDED Entitlement to service connection for a right knee and lower leg disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1971 to January 1979, September 1980 to November 1983, and November 1990 to June 1991. In October 2019, the Board remanded this case for additional development. The Board finds that there has not been substantial compliance with the Board's previous remand directives. Another remand for further development is required. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a right knee and lower leg disability is remanded. 2. Entitlement to service connection for a right ankle disability is remanded. 3. Entitlement to service connection for a left ankle disability is remanded. October 2019 Board Remand instructions asked the VA examiner to (1) confirm that the examiner was a medical doctor who had not previously examined the Veteran in conjunction with the claim; (2) opine whether it was at least as likely as not that any right knee, lower leg, and bilateral ankle disabilities had their onset in service, were aggravated by service, were otherwise related to any incident of service, or manifested within one year following separation from service; and (3) reconcile previous opinions and include a discussion of the medical research. A June 2020 VA examiner opined that right knee, right lower leg, and bilateral ankle disabilities were not the result of service because there was no evidence of diagnosis, treatment, or complaints of the disabilities during service or within one year of separation from service. The examiner stated that "there [was] no evidence active duty permanently aggravated an unknown bilateral ankle diagnosis." No further rationale was provided for the opinions. In an August 2020 addendum, the examiner stated that a "review of the medical record show[ed] no evidence of diagnosis, treatment or symptoms suggestive of a bilateral ankle condition while on active duty or within one year of separation. The [V]eteran was diagnosed with minimal degenerative changes to the knees many years after separation which is consistent with natural ageing. There is no evidence of any ankle condition that can be associated with active duty..." The Board finds the examiner's opinion inadequate for adjudication purposes. The examiner's opinion was based on the absence of medical records. The Board finds a rationale based exclusively on the absence of medical records without consideration of a Veteran's competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In providing the opinion, the examiner did not offer a thorough rationale to support the conclusions. In order to be entitled to probative weight, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned explanation connecting the two. Nieves-Rodrigues v. Peake, 22 Vet. App. (2008). The examiner did not consider and discuss the evidence of record which includes April 1993, June 1994, and November 1997 complaints of knee and ankle pain and popping; X-ray confirmed metallic foreign bodies noted at the anterior lateral aspect of the proximal tibia; and the Veteran's testimony that the right knee was hit with shrapnel while in service. Therefore, the June 2020 medical opinion is not supported by an analysis that the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Despite the October 2019 Remand requests, the examiner did not confirm that he had not previously examined the Veteran in conjunction with this claim, and the examiner did not reconcile previous opinions and include a discussion of the medical research. The Board notes that a remand confers on the Veteran the right to compliance with the terms of that remand. Stegall v. West, 11 Vet. App. 268 (1998). Because of the deficiencies in June 2020 VA examination, the Board finds remand is necessary to obtain a medical opinion. The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain all relevant VA and private treatment records not already associated with the claims file. All attempts to locate records must be documented in the claims file. 2. Schedule the Veteran for a VA examination with a physician who has not previously examined the Veteran in conjunction with this claim. The examiner must review the claims file, including this Remand, and should note that review in the report. The examiner must elicit a full history from the Veteran and consider the lay statements and testimony of record. A negative opinion based solely on the absence of treatment records is inadequate. Clearly stated rationales with references to the record, diagnostic tests, and medical literature or research should be provided. The examiner is asked to: (a.) Confirm that the examiner is a medical doctor who has not previously examined the Veteran in conjunction with this claim. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that any right or left ankle disability had its onset in or is otherwise related to service, to include: (1) physical duties such as running and jumping; and (2) a February 2019 report of an injury in service in which the Veteran rolled his ankle. (c.) Opine whether it is at least as likely as not (50 percent or greater probability) that any ankle disability manifested within one year following separation from service. (d.) If any right or left ankle disability is attributable to another etiology, the examiner must explain why the other etiology is more likely. (e.) Reconcile any opinions with the medical evidence and opinions of record, to include: (1) a November 1997 report of radiating pain down both legs to the ankles; (2) a November 1997 report of daily ankle popping; and (3) the opinions of the December 2015 and June 2020 VA examiners. (f.) Opine whether it is at least as likely as not (50 percent or greater probability) that any right knee or lower right leg disability had its onset in or is otherwise related to service, to include: (1) physical duties such as running and jumping; and (2) a February 2019 report of an in-service shrapnel injury. (g.) Discuss the medical evidence and opinions of record, to include (1) an April 1993 report of knee popping with use of stairs or ladders; (2) a June 1994 complaint of knee pain for two and a half years; (3) a November 1997 report of knee popping; (4) a May 2014 note of a metallic foreign body material possibly from a previous penetrating injury; (5) an April 2015 finding of metal in the proximal aspect of the right calf representing shrapnel remnants; and (6) the opinions of the February 2013, December 2015, and June 2020 VA examiners. (h.) Opine whether it is at least as likely as not (50 percent or greater probability) that any shrapnel wound residuals in the right knee or right lower leg caused any current or past diagnosed right knee or lower leg disability to include arthritis, meniscus tears, loose bodies, enchondroma, and bone bruising. (Continued on the next page) (i.) Opine whether it is at least as likely as not (50 percent or greater probability) that any metallic foreign body in the right knee or lower right leg causes functional impairment, to include pain. (j.) If any right knee or lower leg disability is attributable to another etiology, the examiner must explain why the other etiology is more likely. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., 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.