Citation Nr: 21040385 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-61 783 DATE: July 3, 2021 REMANDED Entitlement to service connection for a left ankle disability, to include as secondary to service-connected left knee and/or left foot disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1985 to April 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified before a Veterans Law Judge (VLJ) at a video conference hearing. A transcript of the hearing is of record. In April 2021, the Board notified the Veteran that he was entitled to another Board hearing because the VLJ who conducted his hearing is no longer employed at the Board. The Veteran did not respond to the offer for another hearing. The Board remanded this matter in January 2020 for additional development. At that time, the Board also remanded service connection claims for a left knee disability and a left foot disability. However, these claims were granted in an October 2020 rating decision; as such, they are no longer on appeal before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with its prior remand as to the issue remaining on appeal. Therefore, the appeal must be remanded once again. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a left ankle disability, to include as secondary to service-connected left knee and/or left foot disabilities, is remanded. The Veteran contends that his left ankle disability is caused or aggravated by his service-connected left knee disability. At the October 2019 Board hearing, the Veteran testified that the unstable structure of his knee causes his entire leg, to include his ankle and foot, to be "off kilter." Moreover, according to a December 2019 VA orthotics prosthetics consultation, the Veteran was found to "pronate severely, left greater than right, with left ankle pain," due to his left foot disabilities. Given the foregoing, the theory of entitlement to secondary service connection due to both the left knee and left foot disabilities have been reasonably raised by the record. Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004) (when a theory of entitlement is raised by the record, the Board must consider it). Pursuant to the January 2020 Board remand, the Veteran was afforded a VA examination in October 2020. The Veteran reported to the VA examiner that he began having pain in his left ankle during basic training, though he could not pinpoint any specific injury, and that his symptoms have progressively worsened ever since. Upon examination of the left ankle, the VA examiner confirmed diagnoses of degenerative arthritis and chronic ankle sprain. With regard to direct service connection, the examiner opined that the left ankle disability was less likely than not incurred in or caused by an in-service injury, event, or illness. In making this finding, the examiner remarked that the Veteran's service treatment records are silent as to a left ankle injury and that the Veteran did not seek treatment for his ankle until 2004. With regard to secondary service connection, the examiner opined that the left ankle disability is less likely than not proximately due to or the result of a service-connected condition, remarking that "arthritis in one joint does not cause arthritis in another joint. A thorough review of medical literature fails to show such causal relationship. It is not unusual for two joints to share properties in the same person, but one joint's disease does not spread to another or cause damage to it." An addendum opinion was obtained from a different VA examiner later in October 2020. Upon review of the claims file, the VA examiner concluded that it is less likely than not that the Veteran's current chronic strain and arthritis of the left ankle was aggravated beyond its natural progression by the service-connected knee condition. The examiner remarked that "there is no credible medical evidence to support any mechanism for aggravation as the Veteran's knee condition is not of the severity to result in a prolonged, significant altered gait." In a March 2021 appellate brief, the Veteran's representative challenged the adequacy of the first October 2020 VA medical opinion, stating that "research demonstrates that an altered gait caused by one joint of the extremity can actually impact the manifestation of arthritis in another...such as the knee impacting the hip as well as the ankle." The representative also argued that "arthritis is not the immediate result that is revealed at the onset of an injury but rather shows up some time after the injury has occurred, and [this] was not considered by the examiner in the performance of the exam." The Board agrees that the first VA opinion obtained in October 2020 is inadequate. With regard to direct service connection, the examiner did not consider whether the Veteran's current degenerative arthritis is a manifestation of an earlier injury to the left ankle, nor did the examiner consider the Veteran's report of first experiencing pain in his left ankle during service. With regard to secondary service connection, the examiner did not consider the Veteran's lay statements or medical evidence of record which indicate that the Veteran walks with an antalgic gait due to his left knee and left foot disabilities, nor did the examiner consider the matter of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140. The Board also finds the second VA opinion obtained in October 2020 to be inadequate as well, for similar reasons. The VA examiner's finding that the Veteran's knee condition is not severe enough to result in a significant altered gait is not consistent with the medical evidence of record which shows that the Veteran does, in fact, have an antalgic gait due to his left knee and foot disabilities. See March 2020 VA urgent care note; see December 2019 VA orthotics prosthetics consultation. An opinion based upon an incomplete or inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In light of the above, the Board finds that the record does not contain a medical opinion that is sufficient to fairly decide the Veteran's service connection claim for a left ankle disability. Therefore, the claim must be remanded once again because the RO did not comply with the Board's prior remand directive to obtain an adequate medical opinion on the Veteran's behalf. See Stegall, 11 Vet. App. at 268. On remand, an addendum medical opinion must be obtained, if possible from an orthopedic specialist, that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Accordingly, the matter is REMANDED for the following action: Obtain an addendum opinion from a qualified VA examiner (i.e. an orthopedist) who has not yet provided an opinion in this case. A VA examination need not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. Thereafter, the examiner should provide a fully-articulated medical opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left ankle disability was incurred in or caused by an in-service injury, event, or illness? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left ankle disability was caused by his service-connected left knee and/or left foot disabilities? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left ankle disability was aggravated by (increased in severity beyond its natural progression) his service-connected left knee and/or left foot disabilities? In providing SEPARATE responses to questions (b) and (c), the examiner must specifically consider and discuss the following evidence: (i) the Veteran's Board hearing testimony that the unstable structure of his knee causes his entire leg, to include his ankle, to be "off kilter"; (ii) the December 2019 VA orthotics prosthetics consultation which found the Veteran to "pronate severely, left greater than right, with left ankle pain," due to his left foot disabilities; (iii) the March 2020 VA urgent care note documenting that the Veteran has an antalgic gait due to his left knee disability; and (iv) arguments put forth by the Veteran's representative in a March 2021 appellate brief that an altered gait due to arthritis in one joint of an extremity (i.e. knee) can impact or cause arthritis in another joint of the same extremity (i.e. ankle), and the article cited therein, Joint Health Magazine, Everything You Need To Know About Arthritis Leg Pain, available at: https://www.jointhealthmagazine.com/arthritis-leg-pain.html. In addressing the matter of aggravation, the examiner should note that it is not required that the left ankle disability is shown to be aggravated beyond its natural progression "predominantly" by the left knee and/or left foot disabilities, but rather, whether there is any contributing degree of aggravation beyond natural progression by the service-connected disabilities. The examiner is advised that the Veteran's hearing testimony and lay contentions of record must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. It should be noted that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The examiner must provide a complete rationale for any opinions offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.