Citation Nr: 21030980 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-89 827A DATE: May 20, 2021 REMANDED The issue of entitlement to service connection for a bilateral foot disability, to include degenerative disease of the bilateral feet, is remanded. The issue of entitlement to service connection for a right knee disability, to include right knee arthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1967 to November 1969. In December 2018, the Veteran testified under oath before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. In March 2019, the appeal was remanded for additional development. For the reasons outlined below, the Board finds that remand is again needed in this matter. 1. Entitlement to service connection for a bilateral foot disability, to include degenerative disease of the bilateral feet. 2. Entitlement to service connection for a right knee disability, to include right knee arthritis. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. First, the Board finds that additional development is needed regarding the private treatment records identified by the Veteran in VA Forms 21-4142 and 21-4142a, received in January 2020. For example, the Veteran identified treatment by a Dr. G and a Dr. A. R. February 2020 Reports of Contact indicate that no records were found for these providers. The Board acknowledges a February 2020 VA letter, dated the same day as the Reports of Contact, that informs the Veteran that private medical records had been requested from a number of providers, including Dr. G. and Dr. A. R. However, this letter does not inform the Veteran that these records were not found. Upon remand, the Board asks that the Veteran be informed of the status of his records request. In addition to the above, the Board finds that new VA opinions are needed. The Board acknowledges that VA opinions were obtained following the March 2019 remand. However, the Board finds them to be inadequate for the following reasons. First, regarding the December 2019 VA opinion for the claimed bilateral foot disability, it states that "though Dr. [H.] noted mid foot arthritis in a 2013 letter, there is no corroborating imaging evidence to confirm that." However, a March 2013 treatment record from Dr. H. notes "Foot X-Ray Findings:... Moderate mid foot arthritis." This suggests that there is "corroborating imaging evidence." A new opinion is needed to adequately address the evidence of record. In addition, the June 2020 addendum VA opinion for the feet does not adequately address the Veteran's lay contentions. In the March 2019 remand, the Board requested that the examiner specifically address "the Veteran's own account of his feet pain, which he states continued through the 1970s post-service." However, the June 2020 VA addendum opinion rests primarily on the timeline of treatment, as is seen in the opinion's conclusion: "Therefore, based on the time from discharge from service in 1969 until the podiatry visit of 1999, being 30 years, it is less likely than not that the bilateral foot conditions would be service related." Accordingly, upon remand, the Board asks that a new VA opinion be obtained that addresses the Veteran's contentions. Further, regarding the Veteran's claimed right knee disability, the December 2019 VA opinion rationale does not appear to align with the conclusion reached. For example, the December 2019 VA opinion states: [T]he medical record notes that the veteran was treated in service for pre patellar bursitis that was causing him pain and he was evaluated for that in 1968. The veteran was noted to have ongoing right knee pain after service and was treated in 2011 for a right torn medial meniscus and prepatellar bursitis of right patella. The right knee pain can be attributable to his previous pre patellar bursitis and be related to his in-service complaint. (Emphasis added). Thus, it appears that the opinion connects the Veteran's documented in-service diagnosis to his current right knee pain. However, the opinion concludes that "the veteran's meniscal tear and bursitis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." (Emphasis in original). Because the rationale for this opinion appears to contradict the conclusion reached, the Board finds that a new one is needed. Similarly, the June 2020 VA addendum opinion for the right knee indicates that: "The claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness." (Emphasis in original). However, the rationale provided does not explain the conclusion reached. This is the rationale provided: Veteran was initially diagnosed with right knee pain in 1968 while in service. He had diffuse swelling of the right knee and was diagnosed with prepatellar bursitis (PPB). There are no other STR where he is diagnosed with PPB during service. The diagnosis was based on a physical examination. This rationale does not address the Veteran's present diagnosis or explain a potential nexus with service. Adding to the confusion, the examiner then provides a nexus opinion regarding secondary service connection, indicating that: "The claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition." (Emphasis in original). It is unclear to the Board to which service-connected disability the opinion refers. The rationale states: The prepatellar bursitis (PPB) does not have a causative relation to either the meniscus tear or the DJD, as the etiology of all three is different. PPB is an inflammatory condition where DJD and meniscal tear are mechanical, not inflammatory conditions. The Board notes that the Veteran is not service connected for any of these disabilities at present. Finally, the Board notes that the December 2019 VA opinion, for both disabilities, indicates that they "clearly and unmistakably existed prior to service." However, the opinion does not provide a rationale as to why it was determined that they existed prior to service. The Board notes that the service treatment records contain an August 1967 Report of Medical Examination that indicates normal feet and lower extremities. Given the lack of a supporting rationale, as well as evidence suggesting that the Veteran did not have a pre-existing disability, the Board finds this opinion to be inadequate. Based on the above, the Board finds that new VA opinions for both claimed disabilities are needed. Accordingly, the matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. In particular, the Board asks that the Veteran be informed of the status of his records requests for treatment providers, Dr. G and Dr. A. R. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for the following VA examinations: (a) A VA examination to clarify the diagnosis of his bilateral foot disability and to address the etiology of any diagnosed disability(ies). For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran's active duty service or, if pre-existing service, was aggravated therein. The examiner is asked to specifically address: (a) the Veteran's in-service treatment; (b) the post-service treatment and diagnoses, including calcaneal heel spurs of bilateral feet; (c) the private opinions of record; (d) the Veteran's own account of his feet pain, which he states continued through the 1970s post-service; and (e) clarification of the statement, made in the Veteran's private treatment records, that the Veteran "has aching in his feet, which he says has been present for almost his entire life." See Private treatment record, March 2013. (b) A VA examination to clarify the diagnosis of his right knee disability and to address the etiology of any diagnosed disability(ies). For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran's active duty service. The examiner is asked to specifically address: (a) the Veteran's in-service treatment; (b) the post-service treatment and diagnoses; (c) the private opinions of record; and (d) the Veteran's own account of his knee pain, which he states continued through the 1970s post-service. In particular, the Board notes that the Veteran was diagnosed with prepatellar bursitis in service. See STR, April 1968. Please clarify whether the Veteran has a present diagnosis of prepatellar bursitis. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. (Continued on next page) 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.