Citation Nr: 21032029 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 15-12 849 DATE: May 25, 2021 REMANDED Entitlement to service connection for a bilateral ankle condition, to include as secondary to service-connected congenital absence of right and left great toe, is remanded. Entitlement to service connection for a bilateral knee condition, to include as secondary to service-connected congenital absence of right and left great toe, is remanded. Entitlement to service connection for a low back condition, to include as secondary to the service-connected congenital absence of right and left great toe, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1968 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge during a January 2019 hearing. A transcript of the hearing is associated with the Veteran's claim file. The Veteran also appealed a decision for entitlement to service connection for a bilateral foot condition, to include a bilateral big toe condition. The Veteran was granted service connection for congenital absence of right great toe and congenital absence of left great toe in a subsequent rating decision by the RO in January 2021. Since entitlement to service connection for this condition has been already granted, this issue is not under appeal and therefore, is not before the Board. This matter was previously before the Board in December 2019. The matter has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Entitlement to service connection for a bilateral ankle condition, bilateral knee condition, and low back condition, to include as secondary to service-connected congenital absence of right and left great toe The Veteran contends that his bilateral ankle condition, bilateral knee condition, and low back condition are the result of carrying heavy rucksacks and field marching during his military service that caused enormous strain on his back and caused his feet to give out beneath him. He also asserts that his knees could not support his body weight, which caused him to fall repeatedly and that the pounding from the marching and running in the Army caused extreme pressure on his feet with the pain radiating up to his ankles. See December 2012 Notice of Disagreement. In the alternative, the Veteran maintains that his service-connected congenital absence of the right and left toes contributed to his knee and back disabilities as he had problems with his balance and inability to walk straight. See December 2011 Statement in Support of Claim. The December 2019 Board decision remanded the issues as there appeared to be outstanding VA treatment records from 1972, outstanding treatment records from the Veteran's private physician, and to obtain VA examinations. As stated above, the December 2019 Board decision remanded the issues for outstanding VA treatment records from 1972. The Veteran's claim files contain VA treatment records from as early as 1978, but no earlier. In January 2020, the RO requested VA treatment records from 1972 to 1999. In April 2020, the RO received VA treatment records, but the earliest records were dated from January 1988. The RO must make another attempt to determine if there are records from 1972 to 1978. Additionally, in a December 2019 correspondence, the RO requested the Veteran identify or submit any outstanding private treatment records to include, Dr. A.W. The Veteran did not respond to the letter. However, on remand, he should be afforded another opportunity to identify or submit the requested records. The Veteran was afforded VA ankle examination in January 2021. The Veteran was diagnosed with bilateral lateral collateral ligament strain. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated that there is no evidence to support that the Veteran's claim of a bilateral ankle condition was incurred in or caused by service or the foot condition diagnosed as congenital absence of bilateral great toe. She found that there has been no medical evidence submitted showing that the Veteran's ankle condition was aggravated by his military service. The examiner explained that a lateral collateral ligament stain occurs when there is a tear in the ligaments on the outside of the ankle and therefore, it is less likely than not due to service or the foot condition during service diagnosed as congenital absence of bilateral great toe. The examiner also stated that the evidence failed to show the Veteran had a bilateral ankle condition in service and failed to show that he was currently being treated for a bilateral ankle condition. Furthermore, for secondary service connection, the VA examiner also opined that the condition was less likely than not (50 percent probability or greater) that such was caused or aggravated by the Veteran's bilateral toe condition. She stated that there is no evidence that the Veteran's non-service-connected bilateral foot condition, to include a bilateral toe condition, diagnosed as congenital absence of bilateral great toe, aggravated the bilateral lateral collateral ligament sprain. As rationale, she noted that medical records do not support this, therefore a nexus cannot be established, and the opinion is less likely than not. The Veteran underwent a VA examiner in January 2021 for his bilateral knee condition and was diagnosed with status post left knee arthroscopy and status post right knee arthroscopy. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in caused by the claimed in-service injury, event, or illness. She specified that the medical records do not support that the Veteran's claim of a bilateral knee condition was incurred in or caused by service or the congenital absence of bilateral great toe. She stated that the Veteran's knee replacements, also known as knee arthroscopy, is a surgical procedure to replace the weight-bearing surfaces of the knee joint to relieve pain and disability. The examiner concluded that the Veteran's claim for service connection for a bilateral knee condition failed to show that the Veteran had a bilateral knee condition in service and failed to show that he was currently being treated for a bilateral knee condition. Regarding secondary service connection, the VA examiner opined that the Veteran's condition was less likely than not (50 percent probability or greater) that such was caused or aggravated by the Veteran's bilateral toe condition. She explained that there was no evidence that the Veteran's bilateral non-service-connected bilateral foot condition, to include a bilateral toe condition, diagnosed as congenital absence of bilateral great toe, aggravated the diagnosed bilateral knee disabilities. She concluded that the medical records do not support this, and therefore, a nexus cannot be established, and the opinion is less likely than not. The Veteran was also examined by the VA for his low back condition in January 2021. The Veteran was diagnosed with lumbosacral strain. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. She stated that there was no evidence to support the Veteran's claim of a low back condition, diagnosed as lumbosacral stain, was incurred in, or caused by service or the congenital absence of bilateral great toe. She rationalized that there has been no medical evidence submitted showing that the Veteran's low back condition was aggravated by his military service. The examiner explained that a lumbosacral strain is an injury that results in damaged tendons and muscles that can cause spasms, pain, and soreness and is less likely than not due to service or the foot condition during service. She also stated that the evidence failed to show the Veteran had a low back condition in service and the evidence failed to show that he was currently being treated for a lower back condition. Medical records are silent for back issues during service, and therefore, a nexus cannot be established between the diagnosed lumbosacral strain and service. As for secondary service connection, the VA examiner also opined that the condition was less likely than not (50 percent probability or greater) that such was caused or aggravated by the Veteran's bilateral toe condition. She stated that there is no evidence that the Veteran's non-service-connected bilateral foot condition, to include a bilateral toe condition, diagnosed as congenital absence of bilateral great toe, aggravated the lumbosacral strain. As rationale, she noted that medical records do not support this, therefore a nexus cannot be established, and the opinion is less likely than not. Here, the February 2021 VA examinations are inadequate as the examiner did not fully consider all the Veteran's lay statements and assertions. The VA examiner also relied on the absence of medical evidence during service and lack of treatment following service to provide a negative nexus opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate when the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). In this regard, the Veteran had stated that his bilateral ankle condition, bilateral knee condition, and low back condition are the result of carrying heavy rucksacks and field marching during his military service that caused enormous strain on his back and caused his feet to give out beneath him. He also stated that his knees could not support his body weight, which caused him to fall repeatedly and that the pounding from the marching and running in the Army caused extreme pressure on his feet with the pain radiating up to his ankles. The Board notes that the Veteran is competent to attest to these events in service and finds his statements to be credible. See Layno v. Brown, 6 Vet. App. 465 (1994). In short, the VA examiner failed to take into consideration the credible lay statements of the Veteran when forming her opinions. The February 2021 VA examinations are also inadequate regarding secondary service connection as the VA examiner's rationale was conclusory and lacked substantive rationale. She merely stated that there is no evidence that the Veteran's conditions were aggravated by the congenital absence of bilateral great toe and that the medical records do not support this. However, she did not indicate what medical records she was referring to in offering her opinion. Furthermore, the VA examiner did not address the Veteran's contentions that his service-connected congenital absence of the right and left toes contributed to his knee and back disabilities as he had problems with his balance and inability to walk straight. Moreover, it is unclear whether the VA examiner reviewed the Veteran's file as the diagnoses rendered at the February 2021 VA examination do not seem to consider the evidence of record. At the Board hearing, the Veteran testified that he was diagnosed with arthritis in his knees, ankles, and low back. See January 2019 Board hearing testimony at pg. 17-18. Furthermore, a January 2013 VA Medical Center x-ray shows that the Veteran had arthritis noted at the medial, lateral, and anterior ankle joints bilaterally. However, at the February 2021 VA examination, the VA examiner stated that the Veteran was not diagnosed with arthritis. Imaging studies for the lower back and ankle were not conducted. The December 2019 Board remand instructed the VA examiner to identify all diagnosis associated with the Veteran's claim for a low back condition, bilateral ankle condition, and bilateral knee condition during the appeal period. The law mandates that where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. 268, 271 (1998). As the February 2021 opinions are based on an inaccurate factual premise, namely that there is no medical evidence of arthritis during the relevant appellate period, they are inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding a medical examination based on an inaccurate factual premise inadequate for rating purposes). As such, the matters must be remanded so that an adequate addendum medical opinion can be obtained. The matters are REMANDED for the following action: 1. Obtain VA treatment records from March 2021 to present. Additionally, obtain VA treatment records for the period from 1978 to 1988. All reasonable attempts should be made to obtain any identified records. 2. The Veteran should also be afforded the opportunity to identify and submit any outstanding private treatment records that relate to the issues on appeal. Specifically, the Veteran should be asked to provide records from his private physician, Dr. A.W., or in the alternative, provide a release so that VA can attempt to obtain those records. If he provides the necessary release, assist him in obtaining the records. All attempts to obtain these records and responses must be associated with the claims file. 3. Once the above has been completed, obtain an addendum opinion from the VA provider who issued the February 2021 medical opinions to address the claims for a bilateral ankle condition, a bilateral knee condition, and lower back condition (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) The examiner should identify any current diagnoses the Veteran has presented related to the bilateral ankle, bilateral knee, and lower back disabilities at any time during the claim period (i.e., from September 2011 to the present). b) For each diagnosis, the examiner shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such condition had its onset during the Veteran's service or otherwise results from or was caused by any injury or disease that occurred in service, to include carrying heavy rucksacks, field marching, climbing, feet giving way beneath him, and falling repeatedly in service. c) For each diagnosis, the examiner shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such condition was caused or aggravated by the Veteran's service-connected congenital absence of right and left great toes. If aggravation is found, the examiner should quantify the degree of aggravation, if possible. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. In rendering an opinion for secondary service connection, the examiner must consider the Veteran's statement that his service-connected congenital absence of the right and left toes contributed to his disabilities as he had problems with his balance and inability to walk straight. d) For each diagnosis of arthritis, provide an opinion as to whether such manifested within the first year following the Veteran's separation from active service in February 1969. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In rendering the opinions requested above, the examiner must consider the competent lay assertions of pertinent symptomatology, to include the Veteran's testimony at the January 2019 Board hearing of in-service injuries to his back, knees, and ankles. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.