Citation Nr: 21041017 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-41 284 DATE: July 7, 2021 REMANDED Service connection for a right ankle disability is remanded. Service connection for a left knee disability (including as secondary to a right ankle disability) is remanded. REASONS FOR REMAND The Veteran who served honorably on active duty from March 1963 to September 1963. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision. In July 2018, a hearing was held before the undersigned; a transcript of the hearing is associated with the record. The Board remanded this appeal in February 2019 and December 2020 and the appeal has since been returned to the Board. Although the Board sincerely regrets the additional delay, another remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran's claim so that every possible consideration is afforded. Service connection for a right ankle disability is remanded. Service connection for a left knee disability, including as secondary to a right ankle disability is remanded. Remand is required for an addendum medical opinion. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The issue was remanded in December 2020 VA examination. The examiner was instructed to consider and discuss the Veteran's statements. Additionally, the examiner was instructed to provide an opinion with a detailed rationale. The Veteran attended a February 2021 VA examination. Regarding the right ankle, the examiner diagnosed lateral collateral ligament sprain and degenerative arthritis of the right ankle. The examiner opined that it is less likely than not the Veteran's right ankle disability is related to military service. The reasoning provided by the examiner was that both the STRs and post service medical records are silent for any complications, residual, intermittent, recurrent, or chronic right ankle condition. Regarding the left knee, the examiner diagnosed left patellofemoral arthrosis and left medial femoral condyle. The examiner opined the left knee disability is less likely incurred in or caused by service based on the fact that the STRs are silent for treatment during service, nor was there any left knee condition the year following discharge. The examiner acknowledged the October 2020 positive nexus statement from Dr. K. However, the examiner indicated the opinion was contrary to the Veteran's previous medical history and no medical records for review were provided; therefore, the statement from Dr. K. was not considered for the opinion rendered. The examiner opined the Veteran's left knee disability it is less likely than not proximately due to or the result of acute right ankle cellulitis without evidence of residuals which occurred in April 1963, based on the assumption that there is no evidence of recurrence or chronicity. The examiner opined the Veteran's left knee disability is less likely than not aggravated by the acute episode right ankle cellulitis without evidence of residuals. The examiner reasoned that there is no evidence of a right ankle condition (chronic, intermittent, or recurrent) and, because the condition did not exist, it could not aggravate another condition. First, the reasoning provided by the examiner failed to consider and discuss the Veteran's allegations. Next, the rationale provided by the examiner is inadequate. By law, a Veteran may still obtain service connection for a disability absent documentation in the service treatment records. The examiner must elicit from the Veteran any relevant statements pertaining to the in-service event, injury, or disease. Further, the examiner's reasoning of no post-service medical evidence noting treatment for the Veteran's right ankle is incorrect because the Veteran's private treatment record from Dr. K indicated treatment for the Veteran's ankle for more than 10 years. Also, the examiner indicated that Dr. K's October 2020 statement was not based on a review of medical records; however, the examiner did not consider or address the January 2021 private statement from Dr. K that contained treatment records. Also, it is unclear whether, in finding there is no gait disturbance due to right ankle disability, the examiner properly considered the Veteran's subjective reports, because the rationale relies only an absence of relevant clinical evidence. Finally, in February 2021 the Veteran's private treating orthopedist (Dr. K) submitted a letter and treatment records indicating the Veteran has osteoarthrosis in his right ankle and provided a positive causal link (nexus) opinion but did not provide a rationale supporting these opinions. Although the private medical opinion provides a sufficient "indication" that the Veteran's diagnosed conditions might be related to military service the private medical opinion does not provide enough evidence or information for the Board to decide the Veteran's claim. The matters are REMANDED for the following action: 1. Please note that this Veteran's case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. Inform the Veteran that he may submit an addendum opinion from Dr. K. that will be considered as evidence supporting the claim if Dr. K. is able to provide a rationale (explanation) for why Dr. K. believes these conditions are at least as likely as not (50% or greater likelihood) caused by service. 3. Obtain an addendum medical opinion from an orthopedist or other appropriate clinician to determine the nature and cause of any left knee or right ankle disabilities. The examiner should review the claims file (including this remand) and note that this review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify all right ankle or left knee disability entities found on examination OR documented in the record. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record, INCLUDING BUT NOT LIMITED TO notations of bilateral ankle arthrosis, ankle osteoarthrosis, and degenerative knee and ankle conditions in the record. IF ANY PREVIOUSLY DOCUMENTED DIAGNOSES NO LONGER APPLY, THE EXAMINER MUST EXPLAIN WHY, CITING TO THE PERTINENT DIAGNOSTIC CRITERIA AS APPROPRIATE. (b.) For each right ankle and left knee disability identified, please opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran's military service, to include (but not limited to) documented ankle and reported left knee injuries therein. The examiner MUST SPECIFICALLY CONSIDER AND DISCUSS the Veteran's allegations and suggestions in the service records that left ankle problems contributed to his development of right ankle problems during service and that left knee and right ankle problems first began during basic combat training. (c.) For each left knee disability identified, please also opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such is CAUSED BY OR PROXIMATELY DUE TO his right ankle disability, to include alleged gait disturbances. (d.) For each left knee disability diagnosed, please also opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such is AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION, REGARDLESS OF PERMANENCE) BY his right ankle disability, to include the reported gait disturbances. [CONTINUED ON NEXT PAGE] All opinions must include a detailed rationale. Providing an opinion or conclusion without enough explanation will delay processing of the claim and require further clarification. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.