Citation Nr: 21030565 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-67 575 DATE: May 19, 2021 REMANDED Entitlement to service connection fora right knee disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a right foot/toe disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from November 1976 to October 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran and his spouse testified during a Board hearing before the undersigned Veterans Law Judge. In January 2020, the Board remanded the appeal for further development. 1. Entitlement to service connection for a right knee disability is remanded. Pursuant to the Board's January 2020 remand directives, an addendum opinion was obtained in January 2021. The Board asked the examiner to opine on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed right knee osteoarthritis status post right total knee arthoplasty had its onset during service or is otherwise related to service. In addressing this question, the Board instructed the examiner to note the Veteran's service treatment records (STRs) document a motor vehicle accident and comment on the Veteran's contention that he injured his right knee during this accident. See June 1980 STR and October 2019 Board Hearing Transcript at 15. However, the examiner failed to address the Veteran's contention that he injured his right knee during a motor vehicle accident, as specifically requested by the Board, and instead relied on lack of documented complaints, treatment, or injuries of the right knee during service. Thus, for this reason, an addendum opinion is needed from a different examiner on remand to ensure substantial compliance with the Board's January 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998); see also Dalton v. Nicholson, 21 Vet. App. 23(2007) (holding that a VA examination was inadequate because the examiner relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion). 2. Entitlement to service connection for a right ankle disability is remanded. Pursuant to the Board's January 2020 remand directives, the Veteran was afforded a VA examination in January 2021. The Board asked the examiner, in relevant part, to opine on whether it is at least likely as not (a 50 percent or greater probability) that a right ankle disability had its onset in service or is otherwise related to service. In addressing this question, the Board instructed the examiner to please acknowledge and comment on the Veteran's June 1980 STRs, which document a right ankle sprain and note symptoms of pain with movement and swelling. Additionally, please comment on the Veteran's lay statement that his ankle disability was incurred during service due such injury and that problems with his ankle have been continuous since that time. See October 2019 Board Hearing Transcript at 20. However, the examiner failed to address the Veteran's lay statement that his ankle disability was incurred during service due to his right ankle sprain and that problems have been continuous since that time, as specifically requested by the Board, and instead related his right ankle as proximately due to his right knee disability. Thus, for this reason, an addendum opinion is needed from a different examiner on remand to ensure substantial compliance with the Board's January 2020 remand directives. Stegall, 11 Vet. App. 268. 3. Entitlement to service connection for a right foot/toe disability is remanded. Pursuant to the Board's January 2020 remand directives, the Veteran was afforded a VA examination in January 2021. The Board asked the examiner, in relevant part, to opine on whether it is at least likely as not (a 50 percent or greater probability) that each diagnosed right foot/toe disability had its onset in service or is otherwise related to service. In addressing this question, the examiner was instructed to comment on the Veteran's lay statement that his skin condition in his bilateral toes was incurred during service and has been continuous since that time. See October 2019 Board Hearing Transcript at 18. However, the examiner failed to address the Veteran's lay statements outlined above, as specifically requested by the Board. Additionally, the examiner's negative opinion regarding right foot bunions relied on lack of documented symptomatology during service and although he indicated diagnoses of right foot hallux valgus and status post second toe hammertoe arthoplasty, no opinions were rendered regarding these diagnoses. Thus, for these reasons, an addendum opinion is needed from a different examiner on remand to ensure substantial compliance with the Board's January 2020 remand directives and to adequately address all theories of entitlement. Stegall, 11 Vet. App. 268. Any outstanding VA treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Obtain an addendum opinion from a VA examiner other than the March 2016 and January 2021 VA examiners to determine the etiology of the Veteran's right knee disability. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner should address the following: (a) Please opine on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed right knee osteoarthritis status post right total knee arthoplasty (see March 2016 and January 2021 VA examination reports) had its onset during service or is otherwise related to service. In addressing this question, the examiner should note the Veteran's service treatment records (STRs) document a motor vehicle accident and concede the Veteran's report that he injured his right knee during this accident. See June 1980 STR and October 2019 Board Hearing Transcript at 15. (b) Please provide a discussion of whether a nexus between right knee osteoarthritis status post right total knee arthoplasty and service is medically consistent with his conceded right knee injury during a documented motor vehicle accident during service. See June 1980 STR and October 2019 Board Hearing Transcript at 15. Otherwise, the opinion will be rendered inadequate. A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Obtain an addendum opinion from a VA examiner other than the January 2021 VA examiner to determine the etiology of the Veteran's right ankle disability. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner should address the following: (a) Please opine on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed right ankle tendonitis (see January 2021 VA examination report) had its onset during service or is otherwise related to service. In addressing this question, please acknowledge and comment on the Veteran's June 1980 STRs, which document a right ankle sprain and note symptoms of pain with movement and swelling. Additionally, please concede and discuss the Veteran's lay statement that his ankle disability was incurred during service due such injury and that problems with his ankle have been continuous since that time. See October 2019 Board Hearing Transcript at 20. (b) Please provide a discussion of whether a nexus between right ankle tendonitis and service is medically consistent with his documented right ankle sprain and reported symptoms of pain with movement and swelling during and continuously since service. See June 1980 STRs. Otherwise, the opinion will be rendered inadequate. (c) If and only if a right knee disability is service-connected in part (2) above, then please also opine on whether it is at least as likely as not (50 percent probability or greater) that right ankle tendonitis is (i) proximately due to service-connected right knee joint osteoarthritis or (ii) has been aggravated (worsened) by service-connected right knee joint osteoarthritis. In addressing question (c), the examiner is advised that two separate opinions are necessary for: one for proximate causation and one for aggravation. The examiner should note that primary disability (right knee joint osteoarthritis) need not be service-connected, or even diagnosed, when the secondary disability (right ankle tendonitis) is incurred and reliance on this fact will render the opinion inadequate. A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Obtain an addendum opinion from a VA examiner other than the January 2021 VA examiner to determine the etiology of the Veteran's right foot/toe disability. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner should address the following: (a) For diagnosed (i) right foot missing second toenail (ii) right first toe bunion status post Chevron procedure/bunionectomy (iii) right foot hallux valgus and (iv) right foot second toe status post hammertoe arthroplasty (see January 2021 VA examination reports), please opine on whether it is at least likely as not (a 50 percent or greater probability) that such disability had its onset in service or is otherwise related to service. In addressing this question, please concede the Veteran's lay statement that his skin condition in his bilateral toes was incurred during service and has been continuous since that time (see October 2019 Board Hearing Transcript at 18) and note the Veteran is service-connected for left foot/toenail onychomycosis. (b) Please provide a discussion of whether a nexus between any right foot/toe disability and service is medically consistent with the Veteran's reported in-service incurrence of his bilateral toe condition and continuous symptoms of that condition since service. Otherwise, the opinion will be rendered inadequate. A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.