Citation Nr: 21030487 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-31 123 DATE: May 19, 2021 REMANDED 1. Entitlement to service connection for a right ankle disability as secondary to service-connected left ankle traumatic arthritis is remanded. 2. Entitlement to service connection for a left knee disability as secondary to service-connected left ankle traumatic arthritis is remanded. 3. Entitlement to service connection for a right knee disability as secondary to service-connected left ankle traumatic arthritis is remanded. REASONS FOR REMAND The Veteran had active service from May 1985 to August 1985 and from October 1987 to April 1990. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2020 Central Office hearing in Washington, D.C., and a transcript of the hearing has been associated with the claims file. These matters were previously denied by the Board in May 2020. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). Thereafter, in December 2020, the Veteran and the Secretary of VA (parties) agreed to a Joint Motion for Partial Remand (JMPR), which was subsequently ordered by the Court. As discussed below, the Board finds that additional development is warranted pursuant to the JMPR, and the matters are remanded. 1. Entitlement to service connection for a right ankle disability as secondary to service-connected left ankle traumatic arthritis is remanded. 2. Entitlement to service connection for a left knee disability as secondary to service-connected left ankle traumatic arthritis is remanded. 3. Entitlement to service connection for a right knee disability as secondary to service-connected left ankle traumatic arthritis is remanded. In the December 2020 JMPR, the parties agreed that vacatur of the May 2020 Board decision and remand of these issues are necessary because the Board erred when it did not ensure that VA fulfilled its duty to assist by providing an adequate examination. Specifically, the parties agreed that remand is necessary to obtain clarification from the VA examiner who completed the August 2014 ankle conditions and knee and lower leg disability benefit questionnaires (DBQs). It was noted that while the August 2014 VA examiner broadly stated that there is no causal relationship between the left ankle disability and the right ankle and bilateral knee disabilities, she did not make plain whether an altered gait caused by a service-connected left ankle disability caused or aggravated a right ankle disability or a left or right knee disability, which was described in the November 2014 and March 2019 favorable private opinions. As such, the parties agreed that remand is warranted for clarification from the VA examiner, or for a new VA examination, to address whether the service-connected left ankle disability caused or aggravated a right ankle disability or a left or right knee disability. The matters are REMANDED for the following action: Return the claims file to the VA examiner who completed the August 2014 ankle conditions and knee and lower leg disability benefit questionnaires (DBQs) for an addendum opinion regarding the Veteran's claims for service connection for a right ankle and bilateral knee disabilities as secondary to service-connected left ankle traumatic arthritis. If the August 2014 VA examiner is unavailable, an equally qualified examiner may be substituted. The need for a full VA examination is left to the discretion of the examiner offering the requested opinion. The claims file and a copy of the below facts must be made available to the reviewing VA examiner. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran had active service from May 1985 to August 1985 and from October 1987 to April 1990. The Veteran is service connected for left ankle traumatic arthritis. The Veteran contends that the service-connected left ankle traumatic arthritis has caused or aggravated right ankle, right knee, and left knee disabilities. Upon VA examination in August 2014, with clinical findings documented regarding the ankles and the knees, a VA examiner opined that the Veteran's current right ankle disability and bilateral knee osteoarthritis were less likely as not secondary to the service-connected left ankle and at least as likely as not due to the natural aging process and obesity. In support of this opinion, the VA examiner stated that there is no medical evidence of a causal connection between the Veteran's left ankle disability and his right ankle or bilateral knee disabilities, and no research study that shows arthritis in one ankle causes arthritis in the other ankle or in the knees, particularly when the effects of additional factors such as aging, weight gain, and occupational/daily stresses were also considered. The examiner specifically noted that the Veteran's mild degenerative changes in both knees was consistent with aging, and that the Veteran's obesity is considered to be one of the most important risk factors for osteoarthritis in the knees, as numerous medical studies show a strong association between obesity and knee osteoarthritis. See VBMS entry with document type, "C&P Exam," receipt date 08/17/2014, with "#1" in the subject field, p. 22. Private treatment records from November 2014 document the Veteran's complaints of bilateral ankle and bilateral knee pain. The Veteran reported that his ankles hurt him throughout his Army medic career and his knee complaints began in the late 1990s, but denied any specific injury. He noted that since his disability retirement from his Post Office career of 20 years, he had worsening complaints of pain in both knees and ankles. His private physician, Dr. Howard Weiss, D.O., wrote it was his belief that the Veteran's right ankle and bilateral knee interchanges as well as pain are caused by his gait abnormality secondary to severe left ankle posttraumatic arthritis. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," receipt date 03/22/2016. In March 2019, the Veteran's private physician, Dr. Mark Gould, M.D., opined that the Veteran's right ankle and bilateral knee arthritis are more likely a secondary condition to the service-connected left ankle due to the Veteran's gait change. See VBMS entry with document type, "Correspondence," receipt date 04/09/2019. Similarly, in February 2021, Dr. Gould wrote that the Veteran's significant loss of range of motion in the left ankle over the years has adversely impacted his gait and ambulatory status, which resulted in worsening of his bilateral knees and right ankle due to the significant limitation in motion and inability to bear weight through the left ankle. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," receipt date 02/18/2021. A CAPRI entry within the file has VA treatment records from December 2006 to January 2021 with 1265 pages. Within this record are numerous comments and findings describing the Veteran's gait (more than 100 comments/findings). His gait was described as being within normal limits, labored, limping with pain behavior, having a mild limp, pronated, slow and steady, coordinated and smooth, and mildly antalgic. The finding that his gait was "within normal limits" was documented approximately 50 percent of the time. See VBMS entry with document type, "CAPRI," receipt date 02/04/2021. 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. Following a review of the claims file, including the relevant evidence discussed above, the VA examiner is asked to render the following opinions: 1. Right Ankle: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right ankle disability is caused by the service-connected left ankle traumatic arthritis? Please state upon what facts and medical principles and/or medical literature you base this opinion. b) If the answer to (a) is negative, is it as likely as not (a 50 percent probability or greater) that the Veteran's right ankle disability is aggravated by the service-connected left ankle traumatic arthritis? 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 and medical principles and/or medical literature you base this opinion. c) If the answer to (b) is positive with the examiner finding that the service-connected left ankle traumatic arthritis aggravates (causes an increase in severity that is not due to the natural progress of the disability) the right ankle 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 right ankle disability prior to aggravation. If the examiner is unable to establish a baseline for the right ankle disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. 2. Left Knee: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's left knee disability is caused by the service-connected left ankle traumatic arthritis? Please state upon what facts and medical principles and/or medical literature you base this opinion. b) If the answer to (a) is negative, is it as likely as not (a 50 percent probability or greater) that the Veteran's left knee disability is aggravated by the service-connected left ankle traumatic arthritis? 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 and medical principles and/or medical literature you base this opinion. c) If the answer to (b) is positive, and the examiner finds that the service-connected left ankle traumatic arthritis aggravates (causes an increase in severity that is not due to the natural progress of the disability) the left knee 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 knee disability prior to aggravation. If the examiner is unable to establish a baseline for the left knee disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. 3. Right Knee: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right knee disability is caused by the service-connected left ankle traumatic arthritis? Please state upon what facts and medical principles and/or medical literature you base this opinion. b) If the answer to (a) is negative, is it as likely as not (a 50 percent probability or greater) that the Veteran's right knee disability is aggravated by the service-connected left ankle traumatic arthritis? 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 and medical principles and/or medical literature you base this opinion. c) If the answer to (b) is positive, and the examiner finds that the service-connected left ankle traumatic arthritis aggravates (causes an increase in severity that is not due to the natural progress of the disability) the right knee 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 right knee disability prior to aggravation. If the examiner is unable to establish a baseline for the right knee disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. In rendering the requested opinions 1 3 above, the examiner is asked to consider and discuss the relevant lay and medical evidence of record, including but not limited to the conflicting medical evidence discussed above. 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 D. Chad Johnson, 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.