Citation Nr: 21030402 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 12-13 317 DATE: May 18, 2021 REMANDED Entitlement to service connection for a left ankle/foot disability, to include as secondary to service-connected right ankle and right foot disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1972 to January 1975. In April 2015, the Veteran testified at a video conference hearing before a former Veterans Law Judge (VLJ). In a June 2015 decision, the Board reopened the claim and remanded it to provide the Veteran with a VA examination. In June 2017, the Board found the September 2015 medical opinion was inadequate and again remanded the claim for a new VA examination. In October 2017, the Board found the August 2017 VA medical opinion to be inadequate and again remanded for a new VA examination. In February 2018, the Veteran was informed that the VLJ who held the April 2015 hearing had retired, and he was given the opportunity to have a new hearing. The Veteran declined a new hearing. In July 2018, the Board requested a Veterans Health Administration (VHA) expert opinion, as it found that the October 2017 opinion did not fully answer the questions asked within the October 2017 Board remand directives. The expert opinion was received in September 2018. The Board then denied the claim for service connection for a left ankle/foot disability in a November 2019 decision. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Secretary of VA and the Veteran (parties) filed a Joint Motion for Remand (JMR), which was granted by the Court that same month. Therein, the parties agreed that remand was warranted for the Board to provide adequate reasons and bases with consideration of inadequacies found with the September 2018 VA examination and the Veteran's lay statements that he suffered an in-service injury and had symptoms since service. Entitlement to service connection for a left ankle/foot disability, to include as secondary to service-connected right ankle and right foot disabilities, is remanded. In the October 2020 JMR, the parties found that the September 2018 VHA expert opinion contained various inadequacies, such as the examiner did not explain why he could not offer an opinion without resorting to speculation. Additionally, the parties noted that the expert wrote there was no clear, current diagnosis and no documentation of the current state of the ankle when the evidence showed diagnoses of degenerative arthritis of the left ankle and degenerative joint disease and pes planus of the left foot. The Board finds a new opinion is needed to assist VA with adjudicating the claim. The Board will provide the examiner with background facts to assist the examiner in providing an informed opinion. Due process The Board notes that the June 2015, June 2017 and October 2017 Board remands and directives, when seeking a medical opinion as to whether the Veteran's left foot and ankle disabilities had their onset in service, gave an impression that the Veteran's allegations of an in-service injury to his left ankle and foot were potentially credible. However, the Board, in thoroughly reviewing the evidence of record, finds that the Veteran's inconsistent history of whether or not he injured his left foot and ankle in service is not credible. While seeking service connection for a right foot disability, the Veteran provided testimony at a hearing before VA that occurred in December 1987. At the hearing, the Veteran was asked, "Which foot was injured [in service]," and he responded, "It was the right foot." He then described in detail how he injured his right foot/ankle in service. The Veteran was also asked, "Do you have any knowledge of ever having injured your left foot when you were on active duty," and the Veteran responded, "No." He was asked if he had any idea of why the x-ray report from service indicated that his left foot was hurt, and the Veteran responded, "No, I don't." The Veteran's testimony was provided under oath, and the current Board finds that what the Veteran reported at that time while under oath is credible, as he described how the injury occurred to his right foot, how his right foot was bandaged up, and how he was unable bear weight on the right lower extremity and had to use crutches, which would mean he was bearing weight on his left foot. It was these same facts that caused the Board to find an in-service disease or injury involving the right foot when it granted service connection for a right foot and ankle disability. See June 2015 Board decision. As such, the Board finds that the Veteran's subsequent lay statements regarding an in-service left foot and ankle "crush" injury conflict with his December 1987 sworn testimony and are, therefore, not credible. The Board recognizes that the credibility analysis above is a departure from the June 2015, June 2017, and October 2017 Board remands. Due process requires fair notice and an opportunity to respond when the Board purports to reverse prior assertions or impressions that evidence is credible or otherwise satisfactory to establish a fact necessary to the claim. See Smith v. Wilkie, 32 Vet. App. 332, 337-39 (2020); see also Thurber v. Brown, 5 Vet. App. 119, 123 (1993) ("[t]he entire thrust of the VA's nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process."). The Board finds that this remand constitutes the notice required by caselaw, and the Veteran shall have an opportunity to respond upon remand, if he deems a response is warranted. The matter is REMANDED for the following action: 1. Obtain outstanding VA treatment records from September 2017 to the present and associate them with the claims file. 2. Refer the Veteran's claims file to an appropriate examiner to assist in determining if the left foot and ankle disabilities are caused or aggravated by the service-connected right foot degenerative joint disease and/or right ankle degenerative joint disease. The examiner should review the claims file. If the examiner finds that an in-person examination is necessary to provide the requested opinions, then schedule the Veteran for a VA examination. The examiner should be provided a copy of the below facts. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable, to assist the examiner with finding the described evidence: The Veteran served on active duty from May 1972 to January 1975. The Veteran is service connected for right foot degenerative joint disease and right ankle degenerative joint disease. While the Veteran has a diagnosis of pes planus in the right foot, it is not part of his service-connected right foot disability. The Veteran has been diagnosed with degenerative joint disease of the left foot and left ankle. The Veteran is claiming that he has a left foot and ankle disability that had its onset in service or is caused or aggravated by the service-connected right foot degenerative joint disease and/or right ankle degenerative joint disease. There are missing service treatment records, but an October 1972 service treatment record shows that an x-ray of the Veteran's lateral left foot showed no fracture, but showed some tissue swelling. See VBMS entry with document type, "STR Medical," receipt date 08/04/1975, with "#1" in the subject field, p. 4. An August 1984 private treatment record shows that the Veteran reported experiencing an inversion injury to the left ankle the day before. He was seen with complaints of swelling and pain on the lateral malleolus and along the dorsum of the foot. The examiner wrote that physical examination revealed swelling limited to lateral malleolus with moderate to severe pain on palpation or inversion of the foot. There was no swelling over the dorsum of the foot, no ecchymoses, and no crepitance. The examiner described the x-ray as negative. The assessment was ankle sprain, and the examiner noted the plan was for crutches and wrap and no activity for a week and no vigorous physical activity for one month. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 05/09/1995, p. 11. The August 1984 left ankle x-ray showed soft tissue swelling, laterally. There was no evidence of fracture. No other significant bony abnormality was noted. Small calcification was seen just dorsal to the anterior talus, which may represent calcification in a tendoligament. The impression was soft tissue swelling laterally, otherwise essentially normal. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 05/09/1995, p. 14. In 1987, the Veteran filed a claim for service connection for a right foot disability, claiming he injured his right foot in service. At a December 1987 hearing related to the claim for service connection for a right foot disability, which hearing was before three individuals with one of them being a medical doctor, the Veteran testified that he injured his right foot in service and not the left foot. He described the in-service injury as he was lining up a pallet up for a fork-truck, and the guy went to pick up the pallet and his right foot was in between the pallet and a safety rail and that his foot got caught between the safety rail and the pallet. He stated his upper ankle was injured. See VBMS entry with document type, "Hearing Testimony," receipt date 12/17/1987, pp. 1-2. At the December 1987 hearing, the Veteran was asked, "Do you have any knowledge of ever having injured your left foot when you were on active duty?" The Veteran answered under oath, "No." He was also unable to explain why the service x-ray was of the left foot. See VBMS entry with document type, "Hearing Testimony," receipt date 12/17/1987, p. 6. At the December 1987 hearing, the Veteran also reported having twisted both ankles a few times after service. See VBMS entry with document type, "Hearing Testimony," receipt date 12/17/1987, p. 7. A September 1994 VA treatment record shows that the Veteran was seen for bilateral ankle pain, which he reported was off and on for 10 years. The examiner wrote that the Veteran's ankles had no effusion or crepitus and had full range of motion. (While the date of the record seems to look like it was in September 1998, the year is 1994 based on the Veteran's age described within this record (42 years old), and all the records in this entry are dated in 1994, which further supports that the record is from 1994.) See VBMS entry with document type, "CAPRI," receipt date, 02/22/1995, p. 2. September 1994 x-rays of the right and left ankles showed no evidence of fracture or dislocation or bony erosion identified. There was relatively osteolytic density seen at the medial aspect of both distal tibia, which most likely represented normal variant. The soft tissue was unremarkable. A bone scan was advised if clinically indicated. See VBMS entry with document type, "CAPRI," receipt date, 02/22/1995, p. 9. An April 1995 VA examination report shows that the Veteran reported he suffered bilateral ankle injuries in 1973 while on a ship when both of his ankles were pinned with a pallet against the safety rail while being picked up by a fork lift. He reported he was on crutches for "quite some time." The Veteran reported he was working for the postal service, which he had worked since 1977. The examiner found that the ankles were "completely normal to exam with normal internal external rotation and flexion and extension with no presence of erythema, heat, or tenderness. The examiner entered a diagnosis of mild degenerative joint disease of the ankles, bilaterally, by history only, with normal exam. See VBMS entry with document type, "VA Examination," receipt date 04/01/1995, pp. 1-2. An April 1995 x-ray of the right ankle showed mild degenerative changes about the ankle and tarsal bones. Very small bony density projects adjacent to the medial malleolus and is probably related to an old avulsion injury. No acute fractures. See VBMS entry with document type, "VA Examination," receipt date 04/01/1995, p. 12. An April 1995 x-ray of the left ankle shows mild degenerative changes about the ankle. No acute fracture. Small achilles spur. See VBMS entry with document type, "VA Examination," receipt date 04/01/1995, p. 14. A January 2008 private treatment record shows that the Veteran presented for a "complete physical." The Veteran reported feeling well with minor complaints, which complaints did not involve either ankle or foot. A review of systems showed that the Veteran denied joint pain. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 06/02/2010, p. 57. The treatment records in this entry are dated from January 2008 to May 2010, which show multiple medical complaints, including left knee pain, but which did not include right or left ankle or foot pain. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 06/02/2010. A June 2010 VA treatment record shows the Veteran complained of bilateral ankle and foot pain. See VBMS entry with document type, "CAPRI," receipt date 08/17/2010, pp. 1. July 2010 x-rays of the "bilateral ankles" documented the following findings: "Neither side shows any evidence of fracture or other acute abnormality. Bone density normal. Right mild degenerative osteoarthritis tibiotalar and fibular talar joints. Also mild DJD in dorsal portions of tarsal arches and low grade calcaneal spurring. Left minimal DJD tibiotalar joint, tarsonavicular joint and mild calcaneal spurring." The impression was degenerative changes as described above. No major abnormality. See VBMS entry with document type, "CAPRI," receipt date 08/17/2010 p. 32. July 2010 x-rays of the "bilateral feet" documented the following findings: "Neither side shows any evidence of fracture or other acute abnormality. Overall bone density normal. Right: Moderate to marked flexion contractures second through fifth toes, mild degenerative osteoarthritis first metatarsophalangeal and midtarsal bones: Tarsal arch is normally preserved. Left: Lesser flexion contractures toes. Mild DJD 1st metatarsophalangeal joint." The impression was flexion contractures tones, Mild degenerative changes as above. See VBMS entry with document type, "CAPRI," receipt date 08/17/2010 pp. 33. An August 2011 VA treatment record shows that the Veteran presented with a generalized achy pain to both ankles. The examiner wrote, "Onset is 5 years ago." See VBMS entry with document type, "CAPRI," receipt date 07/07/2016, pp. 33 34. An October 2011 private treatment record shows that the Veteran presented with a complaint of foot pain, which had been gradual and had been occurring for one year. He described the foot pain as being located in the entire foot "(bilateral)" and heel. The examiner noted the right foot had no warmth, erythema, or rashes. Pain was in the midfoot. He had no plantar fasciitis tenderness. The assessment was pain in the joint involving the ankle and foot. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 11/07/2011, p. 6. At an April 2015 hearing before the Board, the Veteran reported injuring the right foot and ankle while in service. See VBMS entry with document type, "Hearing Testimony," receipt date 04/20/2015, pp. 3-4. In June 2015, following the hearing, the Board requested a VA examination with medical opinions addressing whether the left foot and ankle disabilities had their onset in service or were caused or aggravated by the service-connected right foot disabilities. See VBMS entry with document type, "BVA Decision," receipt date 06/29/2015, pp. 6-7. A September 2015 VA ankle examination report shows a diagnosis of osteoarthritis of both the right and left ankles. X-rays of the right ankle showed no fracture or dislocation is seen. The joint spaces were well-maintained. There was no soft tissue swelling. There were enthesophytes on the plantar surface of the calcaneus and at the Achilles tendon attachment. The impression was degenerative changes as described. X-rays of the left ankle showed no fracture or dislocation is seen. The joint spaces were well-maintained. There was no soft tissue swelling. There were enthesophytes on the plantar surface of the calcaneus and at the Achilles tendon attachment. The impression was degenerative changes as described. See VBMS entry with document type, "C&P Exam," receipt date 09/17/2015, with "DBQ MUSC Ankle" in the subject field. A September 2015 VA foot examination report shows the examiner diagnosed bilateral pes planus and degenerative arthritis. X-rays of the right and left foot showed the same findings, which were: no fracture or dislocation. There was narrowing of the interphalangeal joint spaces. There was narrowing of the first metatarsal phalangeal joint. There was no hallux valgus. There was severe pes planus. There was an enthesophyte on the plantar surface of the calcaneus and at the Achilles tendon attachment. The impression was degenerative changes as described. See VBMS entry with document type, "C&P Exam," receipt date 09/17/2015, with "DBQ MUSC foot," in the subject field. A VA examiner was asked if the Veteran's left foot/ankle disability was at least as likely as not aggravated by the right foot disability. In a September 2015 opinion, the VA examiner found that there was no evidence to support aggravation of left foot/ankle by right foot/ankle condition. The examiner found that the Veteran's testimony regarding the right foot/ankle injury during service was that the onset of left foot/ankle disability was unknown. She noted the first report of bilateral foot/ankle pain was in 2010 with findings of bilateral DJD to feet and ankles. She concluded there is no evidence to support aggravation of the left foot/ankle due to right foot/ankle without resort to mere speculation. See VBMS entry with document type, "C&P Exam," receipt date 09/17/2015, with "DBQ Medical Opinion" in the subject field. When the case was returned to the Board, it found that the questions it had asked in the June 2015 remand were not answered and remanded the claim again for more responsive medical opinions. See VBMS entry with document type, "BVA Decision," receipt date 06/20/2017. An August 2017 VA ankle examination report shows that the examiner diagnosed degenerative arthritis of both ankles. The examiner documented the Veteran reported that he started having pain in the ankle "a few years back." He reported he felt the left ankle was related to walking with a limp in the right foot. He denied an in-service injury. Both ankles were found to have full range of motion on both dorsiflexion and plantar flexion. See VBMS entry with document type, "C&P Exam," receipt date 08/23/2017, with "DBQ MUSC Ankle" in the subject field. An August 2017 VA foot examination report shows the examiner diagnosed bilateral pes planus and degenerative arthritis. The Veteran reported to the examiner that he started having pain "a few years back." The examiner documented the Veteran reported he felt the left foot was related to walking with a limp in the right foot. He denied an in-service injury. The Veteran reported he had worked as a file clerk and employment as a postal worker as a letter sorting operator for 37 years. See VBMS entry with document type, "C&P Exam," receipt date 08/23/2017, with "DBQ MUSC foot," in the subject field. The VA examiner was asked whether the current left foot and ankle disability was the result of an injury in service and whether the current findings were consistent with the "crush" injury the Veteran had reported in 1994 that had occurred in service. In a September 2017 opinion, the examiner found that the left foot and ankle condition was not likely the result of an injury in service. The examiner noted that the Veteran had stated during the examination that he experienced no injury to the left foot/ankle. The examiner noted he was unable to find and review the 1994 report of bilateral crush injury as mentioned above. The examiner noted that the Veteran had reported that it was the right foot that was injured in service. See VBMS entry with document type, "C&P Exam," receipt date 09/05/2017, with "DBQ ADMIN BVA" in the subject field. That same VA examiner was asked whether the left foot and ankle disability was caused by the service-connected right foot and ankle disability, and the examiner answered it was not, although the examiner did not explain upon what facts and medical principles he based the opinion. See VBMS entry with document type, "C&P Exam," receipt date 09/05/2017, with "DBQ ADMIN BVA" in the subject field. That same VA examiner was asked whether the left foot and ankle disability was aggravated by the service-connected right foot and ankle disability, and the examiner found that it was not likely that the left foot had been aggravated by the right foot. The examiner noted the Veteran worked and retired with 37 years in the postal service. The examiner found that the changes noted to the left and right foot and ankle were more likely attributable to changes associated with age and similar to findings in the general population. See VBMS entry with document type, "C&P Exam," receipt date 09/05/2017, with "DBQ ADMIN BVA" in the subject field. The September 2017 opinions were found to be insufficient. See VBMS entry with document type, "BVA Decision," receipt date 10/20/2017. At October 2017 foot and ankle examinations, the Veteran now reported having in-service injuries to his left foot/ankle during service. See VBMS entries with document type, "C&P Exam," receipt date 10/31/2017, with "DBQ MUSC Ankle" and "DBQ MUSC Foot" in the subject lines. In an October 2017 opinion, as to whether the Veteran's left foot and ankle disability had its onset in service, the examiner noted the Veteran had left foot severe pes planus, 1MTP DJD and left ankle DJD. The examiner wrote there were no available medical evidence to support that remote injury to the foot and ankle in service or that such injury can cause his current foot/ankle conditions. The examiner wrote the Veteran's mild left ankle DJD, left 1st MTP joint DJD and severe pes planus are likely a consequence of aging, increased weight, and working as a postal worker for 37 years, which required periods of prolonged weight bearing. The examiner concluded the Veteran's left foot and left ankle conditions are less likely than not incurred in or caused by claimed remote in-service foot/ankle injury. See VBMS entry with document type, "C&P Exam," receipt date 10/31/2017, with "DBQ Medical Opinion" in the subject field. The examiner was also asked whether the Veteran's service-connected right foot and ankle disability caused or aggravated the left foot and ankle disabilities. The examiner wrote that the Veteran's stance and gait is not adequately altered by right foot/ankle condition to place sufficiently abnormal forces on his left foot/ankle to cause a left foot/ankle condition. The examiner added there was no objective evidence or insufficient clinical findings to support the belief that the Veteran's left foot/ankle condition was aggravated (underwent an increase in underlying disability) as a result of the right foot and ankle disability. See VBMS entry with document type, "C&P Exam," receipt date 10/31/2017, with "DBQ Medical Opinion" in the subject field. The Board found that the October 2017 opinions were not in compliance with the opinion request and sought a Veterans Health Administration expert opinion. The opinion request addresses the various medical opinions obtained since 2015 and asked the same questions to the expert on whether the Veteran had a left foot and ankle disability that had its onset in service or was caused or aggravated by the service-connected right foot and ankle disabilities. See VBMS entry with document type, "Medical Opinion," receipt date 07/03/2018. In a September 2018 response, the director of the VA Center for Limb Loss and MoBility, who is a professor in orthopedics and sports medicine noted that had reviewed 100+ pages and that three providers had examined the Veteran and drew similar conclusions. He wrote he did not feel he could add any new medical information. He stated that any connection of a current disability to an injury from 40 years ago would need some documentation at the time of the event to be more than speculation. He explained that a fracture in or near the ankle in the 1970s or 1980s would certainly support a diagnosis of degenerative arthritis 20 to 40 years later. The expert stated that, "Conversely, there is no support for the premise that an injury to one foot causes a problem in the other." The expert felt he could not answer the question about whether the left foot and ankle had its onset in service without some record of that injury. As to whether the right foot/ankle caused or aggravated the left foot/ankle, he wrote he could not prove it and had no documentation of what injury had occurred. See VBMS entry with document type, "Medical Opinion," receipt date 09/14/2018. This September 2018 opinion has been determined to be inadequate because the expert did not adequately explain why he was unable to offer an opinion without resorting to speculation. For example, was the inability to offer an opinion based on a need for more information or whether he or she had exhausted the limits of current medical knowledge in providing an answer to that particular question. Accordingly, the Board is seeking another opinion in order to assist with determining whether the left foot and ankle disabilities are caused by the service-connected right foot and ankle disabilities or whether the left foot and ankle disabilities have increased in severity beyond the natural progress of the disability due to the right foot and ankle disabilities. The Board will not be asking the question of whether the current left foot and ankle disabilities had their onset in service from May 1972 to January 1975, as the Board finds as fact that the Veteran did not injure his left foot and ankle in service. He testified under oath in December 1987 that he did not recall injuring his left foot while on active duty and specifically stated he had no recollection of injuring his left foot in service even though there is an x-ray documented in the service treatment records. While he later changed his story to stating he injured his left foot and/or ankle in service, the Board finds such allegation not credible. Thus, the Board seeks opinions only on whether the service-connected right foot and ankle disabilities caused or aggravated the left foot and ankle disabilities. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. The examiner is asked to answer the following: (a) Is it at least as likely as not (50 percent or greater likelihood) that the left foot and ankle disabilities were caused by the service-connected right foot degenerative joint disease and/or right ankle degenerative joint disease? Please state upon what facts, medical principles, and/or medical literature support the opinion. (b) If the answer to (a) is negative, is it at least as likely as not (50 percent or greater likelihood) that the left foot and ankle disabilities were aggravated by the service-connected right foot degenerative joint disease and right ankle degenerative joint disease? Aggravation is different from causation in that it did not cause the disability but rather caused an increase in severity that is not due to the natural progress of the disability. Please state upon what facts, medical principles, and/or medical literature support the opinion. (c) If the examiner finds that the service-connected right foot degenerative joint disease and right ankle degenerative joint disease caused an increase in severity of the left foot and ankle that is not due to the natural progress of the disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the left foot and ankle disabilities prior to aggravation. If the examiner is unable to establish a baseline for the left foot and ankle disabilities, he or she should state such and explain why a baseline cannot be determined. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. McDaniels, 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.