Citation Nr: 21032700 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 14-08 708 DATE: May 27, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a disability manifesting in pain of the bilateral feet is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1971 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran presented testimonial evidence at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In November 2017, the Board remanded the issues on appeal for additional development. In October 2020, the Board remanded the issues on appeal for additional development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). On October 2, 2020, the Veteran was sent a letter informing him that virtual hearings were available and inquired if he wanted to schedule a hearing. This letter was sent in error, a hearing was not pending in this case. Thus, this matter is appropriately before the Board. Regrettably, more development is still necessary for the Veteran's claims of entitlement to service connection for his bilateral knee and feet disabilities. The Veteran asserts that he suffers from bilateral knee and foot pain caused by his military service. Specifically, the Veteran contends that injuries to his feet and lower back during service have led to alterations in his gait resulting in disabilities manifesting in knee and leg pain. The Veteran testified that his feet started bothering him in basic training and that he has continued to have chronic foot pain since that time. He described an incident in service where he fell from a climbing rope and landed feet-first, resulting in pain of the feet and legs, in addition to significant back pain. The Veteran was previously granted service connection for left L5-1 facet degenerative changes with lumbar strain ("low back disability"). At the May 2017 Board hearing, the Veteran contended that his low back injury in service and pes planus, which he asserts was aggravated during service, have led to an alteration of gait which has resulted in pain and disability of the legs, knees, and feet. 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. The Board acknowledges the Veteran's representative's contention that he should have access to the "Up-to-Date" third party resources, beyond what the medical examiner provided. However, VA has no obligation to ensure the Veteran or his representative have access to third-party websites. The medical examiner is responsible for providing citations and identifying specific information that he/she is relying upon in making a determination. However, the examiner is not required to give the Veteran access to these databases. However, the VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist was not met when the VA failed to obtain an adequate medical opinion for the Veteran's bilateral knee condition. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In April 2018, the Veteran was afforded a VA examination for his bilateral knee condition. The examiner noted that the Veteran reported that he had knee surgery in 1976 or 1977, and a second surgery in 2008. The Veteran also reported that the second surgery was due to locking episodes. The Veteran stated that he has had a decreased range of motion, and has been experiencing right knee weakness, because the right knee is "compensating," and he has right knee pain standing. The April 2018 examiner indicated that he was unable to locate a left knee surgical report in the Veteran's service treatment records. The examiner opined that the Veteran's bilateral degenerative joint disease (DJD) condition claimed was less likely than not (less than 50 percent probability) incurred during service. The examiner's rationale was that, there is "no objective evidence or documentation of knee condition in service, complaints, or treatment." In February 2021, the Veteran was afforded a VA examination for his bilateral knee condition. The examiner noted that the Veteran was diagnosed with bilateral arthritis, other than post-traumatic in 2008. The Veteran was diagnosed with s/p left medial meniscectomy and debridement in 1997 and 2006. The Veteran reiterated his claim that he underwent surgery in his left knee in 1976 or 1977. The examiner opined that the Veteran's bilateral knee condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. As to the rationale, the examiner stated that, "there are no medical providers notations for symptoms of, evaluation for, diagnosis of treatment for a chronic left or right knee during or after service until 2008." The examiner cites to information from "AAOS" and "Up-To-Date" but does not apply this information to the Veteran's specific conditions. The examiner notes that the incident the Veteran described when he fell may have resulted in foot and back pain but that there are no records corroborating the incident. The examiner also opined that the Veteran's bilateral knee condition was less likely than not (less than 50 percent probability) caused by the Veteran's service connected back condition. The examiner also stated that the Veteran's hallux valgus or degenerative joint disease of the feet would cause degenerative joint disease in another joint. However, the examiner did not provide an opinion as to whether the Veteran's back or foot condition aggravated his bilateral knee condition. A medical opinion as to secondary service connection is inadequate for the Board's decision as to aggravation if the issue of aggravation is not sufficiently addressed by the examiner. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). An examiner's determination that the disease or injury at issue is not "related to" the service-connected condition is not sufficient to address the aggravation issue. Id. Thus, this medical opinion is inadequate, because it only addresses the causation prong of secondary service connection. The Board cannot make a fully informed decision on the issue of the Veteran's bilateral knee condition because no VA examiner has opined to whether it was aggravated by his service connected back condition, or his foot condition, that is still being adjudicated. In addition, the April 2018 and February 2021 examiners relied solely upon the absence of documentary evidence and did not adequately respond to the Veteran's contention's that he fell from a rope and landed on his feet during service, he had chronic pain throughout his tenure of service, and that he self-treated his conditions. Therefore, the VA examiner's opinion regarding the Veteran's bilateral knee condition is inadequate because the examiner did not consider all of the evidence, and the claim must be remanded to obtain an adequate opinion. Barr, 21 Vet. App. at 311. The examiner must apply the medical research to the Veteran's contentions, and not merely list the research, and then set forth a conclusion that because there is no objective evidence, that in of itself means that the Veteran's knee conditions are not related to service. 3. Entitlement to service connection for a disability manifesting in pain of the bilateral feet is remanded. In April 2018, the Veteran was afforded a VA examination for his bilateral feet to determine if his condition was service connected. The examiner noted that the Veteran reported that he developed pain in his feet, caused by his left great toe deviation laterally (left) prior to his period of military service. The Veteran also reported that the pain in his feet, was aggravated by his activities in service, including marching, and he experienced flares while standing for long periods of time. The examiner indicated that there is no clinical evidence to support a diagnosis of pes planus. However, in October 2008, the Veteran was diagnosed with hallux valgus, and arthritis. The April 2018 examiner opined that the Veteran's hallux valgus or arthritis was less likely than not (less than 50 percent probability) incurred in, or caused, or aggravated by his military service. The examiner's rationale was that, There is no objective evidence of bilateral hallus valgus and right foot DJD until [October 1, 2008], 33 after coming off active duty orders, therefore, there is nothing to establish that this condition began in, occurred due to, or was worsened by military service. There is no clinical evidence of left foot DJD until [March 9, 2018], therefore, there is nothing to establish that this condition began in, occurred due to, or was worsened by military service. In February 2021, the Veteran was afforded a VA examination for his foot conditions. The examiner noted that the Veteran was diagnosed with hallux valgus in 2008 and arthritis degenerative (other than post-traumatic) in 2008 for the right foot and 2018 for the left foot. The Veteran reiterated the same reports as in the April 2008 VA examination, including that he developed bilateral foot pain during service. The examiner opined that the Veteran's bilateral feet DJD and hallux valgus were less likely than not (less than 50 percent probability) incurred in or caused by military service. As to the rationale, the examiner stated that there is no objective evidence of bilateral hallus valgus and right foot DJD until 2008, and 2018 for the left, which was over 30 years after coming off active duty orders, and thus there is nothing to establish that the condition began in, occurred due to, or was worsened by military service. The examiner stated that the Veteran's DJD is likely age related, and provides a plethora of medical research, but did not explain how the Veteran's specific condition was related to this research. The examiner included the notation that there are no available medical records demonstrating chronic recurrent foot pain during or after service after each of the Veteran's contentions, but the examiner fails to adequately address the Veteran's contentions. The examiner explained that there is no clinical evidence to support a diagnosis of pes planus. The examiner stated that, "objective radiographic evaluation is more accurate than subjective visualization which is neither as sensitive or specific as objective radiologic interpretation." But the examination did demonstrate hallus valgus deformity bilaterally. The examiner reiterated that there are no available medical records that demonstrate chronic recurrent foot pain during or after service until 2008. However, the examiner did not comment or address the Veteran's contentions that he fell from a rope and landed on his feet during service, he had pain throughout his tenure of service, and that he self-treated his conditions. The examiner only stated that there was no objective evidence to support the Veteran's contentions but did not address the actual contentions. Therefore, the VA examiner's opinion regarding the Veteran's bilateral feet conditions is inadequate because the examiner did not consider all of the evidence, and the claim must be remanded to obtain an adequate opinion. Barr, 21 Vet. App. at 311. The Board cannot make a fully informed decision on the issue of entitlement to service connection for the Veteran's bilateral feet disability without obtaining an addendum opinion addressing the lay testimony, and regarding the Veteran's contentions. Thus, a remand is necessary to obtain an addendum opinion to determine if there is a basis to grant service connection for the Veteran's bilateral feet disability. The matter is REMANDED for the following action: 1. If possible, return the Veteran's complete record, to include a copy of this remand, and the claims folder to the examiner who reviewed the file and provided the April 2018 and February 2021 medical opinions hereinafter "examiner," for an addendum opinion. If it is not possible to obtain clarification from the examiner, then forward the Veteran's claim file to another appropriate medical professional who has the requisite experience to render the requested medical opinions. No examination of the Veteran is necessary unless the examiner deems otherwise. Following a review of the evidence of record, to include the Veteran's lay statements, the examiner should opine: 2. Whether it is at least as likely as not (50 percent or greater probability) that the diagnosed hallux valgus or arthritis conditions arose during or was otherwise related to the Veteran's military service. The examiner may not simply rely on the absence of objective evidence in order to provide a medical opinion and must note and address that the Veteran stated that: i. The Veteran testified that his feet started bothering him in basic training and that he has continued to have chronic foot pain since that time. ii. The Veteran reports that his foot pain was exacerbated by marching. iii. The Veteran described an incident in service where he fell from a climbing rope and landed feet-first, resulting in pain of the feet and legs, in addition to significant back pain. iv. The Veteran testified in reference to not seeking treatment during service, "I wasn't, I'm not, raised up we didn't go to doctors. When you're hurt you just basically just try to walk it off or wait for it to stop hurting, and basically that's what I did." b. Whether it is at least as likely as not (50 percent or greater probability) that the diagnosed degenerative arthritis, or s/p left medial meniscectomy and debridement (knee conditions) arose during or were otherwise related to the Veteran's military service. c. Whether the Veteran's bilateral knee conditions are at least as likely as not (50 percent or greater probability) (1) proximately due to his service-connected back condition (2) aggravated beyond its natural progression by his service-connected back condition. d. Whether the Veteran's bilateral knee conditions are at least as likely as not (50 percent or greater probability) (1) proximately due to his bilateral foot conditions (2) aggravated beyond its natural progression by his bilateral foot conditions. The examiner must provide the underlying reasons for any opinions provided. If the examiner is unable to provide this opinion without resorting to speculation, he or she must indicate why this is so. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. The question of secondary aggravation must be addressed separately from the question of secondary causation. The examiner must note that an opinion to the effect that one disability is not "caused by," "a result of," or "secondary to" another disability does not answer the question of aggravation and will necessitate a further opinion. The examiner must note and address that the Veteran stated that: i. The Veteran contends that he had knee surgery in 1976 or 1977. The Veteran indicated that the hospital where he had the procedure has since closed, and thus he cannot provide those records. ii. The Veteran described an incident in service where he fell from a climbing rope and landed feet-first, resulting in pain of the feet and legs, in addition to significant back pain. iii. The Veteran testified in reference to not seeking treatment during service, "I wasn't, I'm not, raised up we didn't go to doctors. When you're hurt you just basically just try to walk it off or wait for it to stop hurting, and basically that's what I did." iv. The Veteran contends that the alteration of gait and continued weight from shifting from [his back and feet conditions], along with in-service events, have caused chronic knee conditions of the right and left knees, and that the resulting pain associated with the arthritis, which is in his right and left knee is a secondary condition to [his feet conditions]. 3. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. 4. The AOJ must review this opinion to ensure it is adequate and complies with the Board's specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 5. After completing the above, and conducting any further development deemed necessary, readjudicate the claim for service connection for his bilateral knee and feet disabilities. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.