Citation Nr: 21028559 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 14-28 530A DATE: May 11, 2021 REMANDED Entitlement to a rating in excess of 10 percent for left knee internal derangement disability is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from April 1990 to January 1993. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board remanded these claims for additional development. 1. Entitlement to a rating in excess of 10 percent for left knee internal derangement disability The Veteran seeks a higher rating for his left knee disability. He contends that his left knee disability is more severe than reflected by the currently assigned 10 percent rating. He reports that he is unable to walk or stand for prolonged periods of time, that his left knee gives out on him, and that he experiences flare-ups of pain which result in functional impairment. See Correspondence (December 2010) and (July 2014); see also VA examination (December 2010) and (February 2013), and C&P Exam (May 2019) The Veteran is currently assigned a 10 percent disability rating for left knee disability based on limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Code 5260. This claim was remanded by the Board in July 2018 to afford the Veteran a VA examination that complied with Correia v. McDonald, 28 Vet. App.158 (2016) and determined the current severity of his left knee disability, to include clarification of the Veteran's flare-ups. The Veteran was afforded a VA examination in May 2019. The examiner stated that pain was noted on examination and caused functional loss on flexion, however, the degree at which pain occurred was not noted in the examination report. The veteran was again afforded a VA examination in September 2020. The examiner stated that pain was noted on examination and caused functional loss on flexion, however, the degree at which pain occurred was not noted in the examination report. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, on remand, the Veteran should be afforded an examination for his right knee that includes the degree at which pain occurs during range of motion tests. These findings are necessary to adequately rate the Veteran's disability according to DeLuca. Id. Additionally, the Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). On remand, the examiner should ensure that all signs and symptoms necessary to rate the Veteran's disability under the revised rating criteria are included in the examination report. 2. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected disabilities, is remanded. 3. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected disabilities, is remanded. The Veteran contends that his bilateral ankle disorder is secondary to his service-connected knee disabilities. He asserts that he has had to alter the way he walks, stands, and sits to compensate for his service-connected left knee disability, and that such compensatory measures have caused or aggravated his bilateral ankle condition. See Correspondence (July 2014) and (February 2015). The Veteran contends that he sustained repetitive trauma to his ankles as result of favoring one ankle which, in turn, inevitably leads to favoring of the other ankle, because of his service-connected knee disabilities. See Appellate Brief (April 2021) The Veteran's representative further contends that the rationale used to support secondary service connection for right knee disability also supports the secondary claim for service connection for right ankle disorder, which then in turn, favors the secondary service connection for left ankle. The record shows that VA awarded service connection for a right knee disability, as secondary to the Veteran's service-connected left knee disability, based on an October 2020 VA medical opinion that determined the left knee disability resulted in additional stress on the opposite joint during ambulation. See Appellate Brief (April 2021) For reasons explained below, the Board finds that remand is necessary. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board previously remanded the claims in July 2018 for a supplemental VA medical opinion, and the examiner was instructed to address whether it is at least as likely as not that the Veteran's right ankle and left ankle disorders are proximately due to, the result of, or aggravated by his service-connected left knee disability, to include the measures he takes to compensate for that disability. See BVA Decision (July 2018). In the May 2019 and May 2020 VA medical opinion reports, the VA examiner concluded it was less likely than not that the Veteran's bilateral ankle disorder was proximately caused or aggravated by his service-connected left knee disability. See C&P Exam (May 2019) and (May 2020). The medical conclusions were based in part on the VA examiner's finding that a "typical strain of the ankle joint is associated with direct acute or repetitive trauma to that ankle and is unlikely due to or aggravated by left knee disability based on most recent [DBQ] evaluation of left knee with regard to stability and range of motion." See C&P Exam (May 2020). However, the same VA examiner later concluded that the Veteran's left knee disability "would cause significant favoring and placement of additional weight bearing on the right knee, and asymmetry with walking, climbing, stooping, and bending, resulting over time with additional physical stress load on the right knee and progression of right knee strain beyond natural progression." See C&P Exam (October 2020). It is unclear to the Board why the same VA examiner would conclude that the Veteran's left knee disability resulted in additional physical stress load on the right knee but would not result in similar additional physical stress load on the right ankle. Given the above, the Board may not rely upon the May 2019 and May 2020 VA medical opinions in their present form and, therefore, finds that an addendum VA medical opinion is needed to reconcile these opinions with the conflicting October 2020 VA medical opinion. Accordingly, as the Board has a duty to ensure compliance with the terms of its remand, remand is again required. See Stegall, 11 Vet. App. 268. Second, a remand is needed to obtain a VA medical opinion on whether the Veteran's bilateral ankle disorder is proximately caused or aggravated by his service-connected right knee, lumbar spine, and left lower extremity sciatic disabilities. During the pendency of the appeal, VA awarded service-connection for right knee, lumbar spine, and left lower extremity sciatica disabilities. See Rating Decision (October 2020). The Veteran asserts that pain from his lumbar spine and knee disabilities have altered his gait mechanics, which places additional stress on his ankles, and has resulted in his current bilateral ankle disorder. See Correspondence (July 2014); see also Appellate Brief (February 2021). VA's duty to obtain a VA with a medical opinion has been triggered. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand, a VA medical opinion should be obtained that addresses the Veteran's assertions. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Afford the Veteran a VA examination for his left knee disability. The examiner should identify and completely describe all current symptomatology. The examiner should provide a detailed review of the Veteran's current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran's disability. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the left knee and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees) pursuant to DeLuca. *Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain in BOTH knees on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the knees cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. *In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding her flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran. 3. Obtain an addendum VA medical opinion for the Veteran's bilateral ankle disorder. The examiner must review the claims file. Based on review of the record, to include medical and lay evidence, please opine as to the following: (a.) Whether it is at least as likely as not that the Veteran's bilateral ankle disorder is proximately due to or aggravated beyond its natural progression by the Veteran's service-connected left knee and/or right knee disabilities, to include overcompensation and altered biomechanics. Any opinion given must reflect consideration of the Veteran's assertions that he has altered the way he walks, stands, and sits to compensate for the service-connected knee disability. In doing so, the clinician is asked to attempt to reconcile, or explain, the October 2020 examiner's conclusion that the Veteran's service-connected knee disability resulted, over time, in additional physical stress load on the opposite joint in conjunction his opposing ankle, and then in turn, his other ankle. (b.) Whether it is at least as likely as not that the Veteran's bilateral ankle disorder is proximately due to or aggravated beyond its natural progression by service-connected lumbar spine and/or left lower extremity sciatica disabilities, to include overcompensation and altered biomechanics. (c.) Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Murray 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.