Citation Nr: 21031538 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 14-22 518 DATE: May 24, 2021 REMANDED Entitlement to service connection for bilateral heel spurs is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a heart condition, claimed as mitral valve prolapse, is remanded. REASONS FOR REMAND These matters were most recently before the Board of Veterans' Appeals (Board) in December 2020, when they were remanded for additional development; however, the Board finds further development is necessary for the reasons discussed below. 1. Entitlement to service connection for bilateral heel spurs is remanded. In December 2020, the Board remanded the Veteran's service connection claim for bilateral heel spurs for a secondary service connection opinion. The post-remand, January 2021 opinion the Agency of Original Jurisdiction (AOJ) obtained regarding the Veteran's service connection claim for bilateral heel spurs is inadequate on its face because the January 2021 examiner did not provide a conclusion regarding causation in the context of secondary service connection but rather completed the direct service connection section of the disability benefits questionnaire (DBQ). Although it appears the examiner's rationale in the direct service connection section of the DBQ relates to causation under 38 C.F.R. § 3.310(a), the record is not entirely clear in this regard because the examiner appears to have copied and pasted the same rationale in both the direct service connection section of the DBQ, which again was apparently intended to relate to causation under 38 C.F.R. § 3.310(a), as well as the secondary service connection aggravation section of the DBQ, which relates to aggravation under 38 C.F.R. § 3.310(b); however, the inadequacy of this approach is accentuated by the fact that the United States Court of Appeals for Veterans Claims (Court) has cautioned against using opinions couched in terms of causation, to include phrases such as "related to" as used by the January 2021 examiner, when analyzing aggravation under 38 C.F.R. § 3.310(b), which significantly erodes the probative value of the examiner's aggravation rationale. See El Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)) In sum, the Board is simply unable to cobble together the various sections of the January 2021 DBQ to support a finding that the DBQ contains a clear conclusion with a well-reasoned supporting rationale regarding the separate theories of causation and aggravation under 38 C.F.R. § 3.310, as required by the applicable case law, making a new secondary service connection opinion necessary regarding the Veteran's claim. 2. Entitlement to service connection for a right knee disability is remanded. Initially, the Board notes the January 2021 secondary service connection opinion the AOJ obtained regarding the Veteran's service connection claim for a right knee disability contains the same fundamental flaws as the January 2021 secondary service connection opinion regarding bilateral heel spurs, as discussed above; however, the AOJ attempted to clarify the right knee opinion, to some degree, because the Board's December 2020 remand directives required both a direct and secondary service connection opinion regarding the Veteran's service connection claim for a right knee disability. Yet, even with the additional clarification, the January 2021 right knee opinion is inadequate. In a March 2020 joint motion for partial remand (JMPR) granted by the United States Court of Appeals for Veterans Claims, which vacated the Board's prior decision regarding the issues on appeal, the parties agreed a previously obtained October 2011 opinion was inadequate to make an informed decision on the Veteran's right knee claim because the examiner failed to provide a "well-reasoned medical explanation" for her conclusion that the Veteran's in-service diagnosis of patellofemoral syndrome/chondromalacia patella resolved. In comparison, the January 2021 examiner failed to even mention the diagnosis of patellofemoral syndrome/chondromalacia patella rather vaguely noting an "acute" right knee condition in 1982 and 1986 without further discussion. The Board acknowledges a July 2020 examiner discussed the diagnosis of patellofemoral syndrome/chondromalacia patella in far greater detail than the January 2021 examiner, but the July 2020 examiner considered patellofemoral syndrome/chondromalacia patella a pre-existing condition at the time of the Veteran's entry to active service, which is inconsistent with the Board's findings regarding presumption of soundness, as outlined in its most recent December 2020 remand. Thus, a new opinion is also necessary regarding the Veteran's service connection claim for a right knee disability since the January 2021 examiner failed to adequately address the in-service diagnosis of patellofemoral syndrome/chondromalacia patella and also failed to properly complete the secondary service connection causation section of the DBQ used to report her opinion. 3. Entitlement to service connection for a heart condition, claimed as mitral valve prolapse, is remanded. Although the January 2021 examiner provided an adequate opinion attributing the Veteran's lay reports of chest pain to his service-connected hypertension, when considering her February 2021 addendum to the initial DBQ, the Board finds a second addendum to the report is necessary to ensure compliance with the terms of the previously noted March 2020 JMPR. Although not specifically referenced in the Board's prior remand directives, the parties to the March 2020 JMPR agreed the opinion the Board relied upon in its prior decision regarding the Veteran's service connection claim for mitral valve prolapse was inadequate, in pertinent part, because the author failed to address the Veteran's lay reports that he experiences "symptoms of a heart attack" such as pain in his chest, shortness of breath, and tingling in his arm. The Board acknowledges the record currently suggests the Veteran's lay reports of chest pain are a symptom of his service-connected hypertension rather than a separate disability for which service-connected can be granted; however, the current expert evidence of record does not account for the Veteran's lay reports of shortness of breath and tingling in his arm, as contemplated by the terms of the March 2020 JMPR. Thus, the Board finds further development is necessary in this regard to ensure compliance with the terms of the March 2020 JMPR. The matters are REMANDED for the following action: 1. Obtain a new opinion regarding the Veteran's service connection claim for bilateral heel spurs, preferably with an examiner who has not previously provided an opinion regarding the Veteran's claim. The selected examiner must address whether the Veteran's bilateral heel spurs are at least as likely as not (50 percent probability or greater) proximately due to, or aggravated by, his service-connected lumbar spine disability and associated radiculopathy. The opinion must explicitly address theories of both causation and aggravation separately to be deemed adequate. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. When discussing aggravation, the examiner is asked to avoid phrases such as "not due to," "not caused by," and "not related to" since the United States Court of Appeals for Veterans Claims has held such language is insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b). The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. 2. Obtain a new opinion regarding the Veteran's service connection claim for a right knee disability, preferably with an examiner who has not previously provided an opinion regarding the Veteran's claim. The selected examiner must provide an opinion addressing whether the Veteran's current right knee disability is at least as likely as not (50 percent probability or greater) the result of an in-service disease or injury, to include his in-service diagnosis of patellofemoral syndrome/chondromalacia patella; or proximately due to, or aggravated by, his service-connected lumbar spine disability and radiculopathy. In the context of direct service connection, if patellofemoral syndrome/chondromalacia patella or a residual thereof is found presently, the examiner must provide a well-reasoned medical explanation for the conclusion that the well-documented in-service condition resolved without further issues. If direct service connection is not established, the examiner must address secondary service connection. The secondary service connection opinion must explicitly address theories of both causation and aggravation separately to be deemed adequate. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. When discussing aggravation, the examiner is asked to avoid phrases such as "not due to," "not caused by," and "not related to" since the United States Court of Appeals for Veterans Claims has held such language is insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b). The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion, specifically the Veteran's reports of a continuity of symptomatology since his separation from active service. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examiner may not dismiss the Veteran's solely on the basis that they are not recorded in contemporaneous treatment records. The examination report must include a complete rationale for the opinion provided. 3. Obtain a second addendum to the January 2021 examiner's report that addresses the Veteran's lay reports of shortness of breath and tingling in his arm, to include a discussion of whether such symptoms are suggestive of or attributable to a current heart condition or are attributable to another condition. If the symptoms are suggestive of or attributable to a current heart condition, the examiner should identify this condition and provide an opinion addressing whether the condition is at least as likely as not the result of an in-service disease or injury. The addendum must include a full rationale for the conclusion reached therein. If the January 2021 examiner is unavailable or cannot otherwise provide the requested addendum, it may be obtained from another examiner with the Veteran only being scheduled for a new examination if deemed necessary by the newly selected examiner. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.