Citation Nr: 21028806 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 13-09 856 DATE: May 12, 2021 REMANDED Entitlement to service connection for a bilateral foot disorder is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1969 to September 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran testified that at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript from that proceeding is associated with the claims folder. In May 2016 and August 2019, the Board remanded the case for further development. With regard to the December 2020 and February 2021 examinations obtained in connection Veteran's claims for service connection for bilateral foot and bilateral knee disorders, the Board finds that there has not been substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that additional development is needed based on the information obtained during the last remand. Thus, these claims will be addressed in the remand portion of the decision. 1. Entitlement to service connection for a bilateral foot disorder is remanded. 2. Entitlement to service connection for a bilateral knee disorder is remanded. The Veteran contends that service connection is warranted for bilateral foot and bilateral knee disorders. The Board's August 2019 remand directed that an examiner determine whether there was clear and unmistakable evidence that a foot and/or knee disorder preexisted service. If so, the examiner was instructed to determine whether the preexisting disorder did not undergo an increase in severity beyond the natural scope of the disability during service and, if not, the examiner was instructed to determine whether it was at least as likely than not that the Veteran's foot and/or knee disorder was incurred in or is otherwise related to service. In forming such opinions, in relevant part, the examiner was also instructed to elicit a full history from the Veteran regarding his bilateral foot and knee symptoms. The Veteran was afforded VA examinations for the bilateral knees and feet in December 2020. Diagnoses of bilateral knee osteoarthritis and degenerative arthritis of the bilateral feet were noted. During the knee examination, the Veteran reported that his condition onset between 2002 and 2003 and that it worsened since onset. During the foot examination, the Veteran reported that his bilateral foot pain onset in 1990, gradually increased since that time, and that his pain worsens at night and with prolonged standing. As to both conditions, the examiner opined that it was less likely than not that the Veteran's bilateral knee and foot disorders clearly and unmistakably existed prior to service and were clearly and unmistakably not aggravated beyond their natural progression by an in-service injury, event, or illness. In support of the opinion, the examiner stated there was no evidence of chronicity or continuity since discharge and that no treatment sought within twelve months of discharge had been shown within the medical record. In a January 2021 Exam Rework Scheduling Request, addendums to the December 2020 DBQs were requested for several reasons. First, the RO noted that while the prior examination request stated that the Veteran's bilateral foot and knee conditions clearly and unmistakably existed prior to service and asked for an opinion only on aggravation of a preexisting condition, the evidence did not show that either condition was a preexisting condition. Additionally, addendum medical opinions addressing direct, secondary, and/or aggravation were requested. And lastly, the RO noted that the December 2020 examinations did not comply with Mitchell v. Shinseki, relating to functional limitations. In February 2021 DBQs, the examiner opined that there was not clear and unmistakable evidence that a bilateral foot or knee disorder existed prior to service and that it was less likely than not that the Veteran's bilateral foot and knee disorders were incurred in or caused by the claimed in-service injury, event, or illness. The examiner also opined that it was less likely than not that the Veteran's disorders were proximately due to or the result of a service-connected right hip, left hip, or back disability. Here, the examiner reasoned that there was no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5 cm so that the individual's gait pattern was altered to the extent that clinically there is an obvious Trendelenburg gait. While the examiner noted this level of severity was not shown, the Veteran testified that he loses balance and falls and was prescribed a walker. Additionally, VA treatment records, dated in 2019, cite to an abnormal gait, characterized in some records as an antalgic, forward flexed gait. The examiner also opined "it is not unusual for two joints to share properties in the same person, but one joint's disease does not 'spread' to another or cause damage to it." As the opinion appears somewhat inconsistent, additional clarification is needed. The Board sincerely regrets the additional delay and is cognizant of the fact that this claim has already been remanded twice. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it is essential for a full and fair adjudication. See Ascherl v. Brown, 4 Vet. App. 371, 377 (1993) (where the record before the Board is inadequate, a Remand is mandatory rather than permissive.) The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an orthopedic physician, or other qualified clinician, to determine the etiology of the Veteran's left and right foot disabilities. If further examination of the Veteran is deemed necessary, it such should be arranged. The examiner should review the entire claims file and a copy of this remand. (a) The examiner should first identify all diagnosed left and right foot disabilities of record. (b) For each identified disorder, is it at least likely as not (a 50 percent or better probability) that the Veteran's foot disorder was incurred in, or is otherwise related to the Veteran's active service, to include the Veteran's injury involving his armored personnel carrier hitting a landmine. (c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral foot disorder was (i) caused or (ii) aggravated by (increased in severity due to) any service-connected disability. [The opinion must address aggravation.] If it is found that a service-connected disability did not cause, but aggravated, a diagnosed foot disorder, specify, to the extent possible, the degree of disability (symptoms/impairment) that has resulted from such aggravation. (d) If a diagnosed foot disorder is determined to be unrelated to service, and not caused or aggravated by a service-connected disability, identify the more likely etiology of the foot disorder(s) and explain why that is so. ** In providing an opinion, the examiner should address the August 1971 Report of Medical History in which the Veteran reported foot trouble and the Veteran's lay statements of record, to include the February 2016 hearing testimony. 2. Next, obtain an addendum medical opinion from an orthopedic physician, or other qualified clinician, to determine the etiology of the Veteran's left and right knee disabilities. If further examination of the Veteran is deemed necessary, it such should be arranged. The examiner should review the entire claims file and a copy of this remand. (a) The examiner should first identify all diagnosed left and right knee disabilities of record. (b) For each identified disorder, is it at least likely as not (a 50 percent or greater probability) that the Veteran's bilateral knee disorder was incurred in, or is otherwise related to the Veteran's active service, to include the Veteran's injury involving his armored personnel carrier hitting a landmine. (c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral knee disorder was (i) caused or (ii) aggravated by (increased in severity due to) any service-connected disability. [The opinion must address aggravation.] If it is found that a service-connected disability did not cause, but aggravated, a diagnosed knee disorder, specify, to the extent possible, the degree of disability (symptoms/impairment) that has resulted from such aggravation. (d) If a diagnosed knee disorder is determined to be unrelated to service, and not caused or aggravated by a service-connected disability, identify the more likely etiology of the knee disorder(s) and explain why that is so. **In providing the opinion, the examiner should address the following: (1) the August 1971 Report of Medical History in which the Veteran reported a "trick" or locked knee; (2) the November 1971 VA examination in which the Veteran reported a history of right knee discomfort; (3) the September 2001 VA examination for psychiatric disorders in which the Veteran reported that his knees buckled on a regular basis; and (4) the Veteran's lay statements, to include the February 2016 hearing testimony. ** All opinions must include rationale. The rationale should also address the apparent inconsistencies in the prior opinions indicating on the one hand that an altered gait sufficient to impact the knees was not shown, and on the other hand the 2019 treatment records which indicated that the Veteran had an altered/abnormal gait. If the examiner is unable to provide any requested opinion without resorting to mere speculation, the examiner must provide a reasoned explanation for such conclusion. 3. Re-adjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson, 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.