Citation Nr: 21041167 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-61 252 DATE: July 8, 2021 REMANDED Entitlement to service connection for a left ankle disability, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities is remanded. REASONS FOR REMAND The appellant is a Veteran who had active service from March 1978 to March 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2015 Department of Veterans Affairs (VA) rating decision). In January 2020, the Board remanded these matters for further development Service connection for right and left ankle and right and left knee disabilities. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (CAVC) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand instructions. The CAVC held that the Board itself errs when it fails to ensure compliance with the terms of its remand. The Board finds that the AOJ did not substantially comply with the Board's January 2020 remand directives because the opinions did not adequately address the aggravation theory of entitlement. The Board finds that another remand is required to fairly decide these claims. The Veteran asserts that his service-connected bilateral foot arthrosis with plantar fasciitis has led him to develop gait changes which have caused strain and pressure on his knees and ankles. He also contends that during service he had to complete a 30-mile march during which he walked on the sides of his feet, which affected his ankles. The Veteran's service treatment records (STRs) show that in March 1978 he reported right knee pain and giving way following physical training. Possible chondromalacia was noted. In July 1978, he was seen and treated for a right ankle sprain. During a November 2015 VA knee examination, the examiner opined that the Veteran's diagnosed knee disability was not caused by his plantar fasciitis; and it is less likely than not that the knee disability is proximately due to or the result of his service connected arthrosis of the bilateral feet with plantar fasciitis. A March 2016 VA orthopedic consult notes the Veteran's complaints of right knee pain and right ankle instability. He reported that whenever he walks on uneven surfaces his ankles will roll in, with the right much more than the left. The examiner noted that he agreed with the Veteran's podiatrist that the Veteran should receiving orthotics and upright support to stabilize his ankles. In November 2016 an addendum opinion was requested. The examiner opined that neither the claimed bilateral knees strains and right knee ACL and meniscus surgical residuals with degenerative arthritis conditions; nor the claimed bilateral ankle strains with right ankle instability conditions, were aggravated beyond expected normal progression by the service connected plantar fasciitis of both feet because both knees and ankle strains in service went without documented major symptoms or treatment for approximately 10 years after discharge despite the chronic service-connected plantar fasciitis. The examiner noted that the records made no mention of chronic antalgia/gait abnormalities, weakness or falls. The examiner attributed that Veteran worsening of knee and ankle pain to weight gain and duties associated with his occupation as a nurse. The examiner explained that plantar fasciitis pain while walking is not significant direct mechanical stress upon the other [lower extremity] joints or lumbar spine; and that it is likely that the plantar fasciitis conditions themselves would be worsened by these same factors. On January 2020 VA knee and ankle examinations, the knee examiner opined that it is less likely than not) that the Veteran's claimed knee disabilities were incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that he did not have a bilateral knee disability, and that the disability appeared to be confined to his right knee. On ankle examination it was noted that the Veteran did not have a current diagnosis of any claimed ankle disability, and that there was no evidence of degenerative change in the ankle joints. The examiner opined that it was not likely that the Veteran had current ankle disabilities that were incurred in service (noting that heel spurs are foot, and not ankle, disabilities). The examiner attributed the Veteran's post service ankle sprains to his unstable right knee. He noted that a June 2014 VA provider found that the Veteran's medial ankle symptoms were most likely secondary to gait deviations; however, he did not reconcile that finding with his conclusion to the contrary and did not address the Veteran's lay statements regarding continuity of symptoms (or his symptoms in general) or that ankle supports were prescribed due to inversion of his feet. In July 2020, the January 2020 examiner was asked to provide a medical opinion addressing aggravation (for both the knee and the ankle disabilities). In the August 2020addendum opinion received in response, the examiner opined that it was less likely than not that the Veteran's bilateral knee conditions are due to, caused by, or aggravated by an in service injury, event or disease because there were no complaints of knee pain, documentation of an ACL tear, meniscal injury or any other condition affecting the knee during or within one year of service. The examiner opined that it was less likely than not that the Veteran's right ankle instability is due to, caused by, or aggravated by an inservice injury, event or disease, or by his service-connected plantar fasciitis, and indicated that the Veteran's right ankle instability is most likely due to compensating for his multiple right knee injuries; noting that there was no documentation of foot or ankle injuries in service (contrary to what is shown in service records in the file). The provider also did not reconcile his assertion that there is no clear left ankle condition, with the evidence of record that he received bilateral ankle supports and braces for complaints from inversion of his feet. Neither the January 2020 nor August 2020 opinions clearly addressed whether the claimed knee and ankle conditions were aggravated beyond their natural progression by a service-connected disability. Each opinion was (at least in part) based on inaccurate facts (such as that there were no reports of right knee pain/right ankle pain on service and there was no current ankle disability). Additionally, the Board notes that in June 2021, the Veteran was awarded service connection for degenerative arthritis of the lumbar spine and bilateral peripheral neuropathy associated with the lumbar spine condition. Development for an opinion addressing whether his claimed knee and ankle disabilities were caused or aggravated beyond their natural progression by his newly service -connected disabilities is necessary. The matters are REMANDED for the following: 1. Arrange for the Veteran's claims file to be forwarded to an appropriate clinician (in orthopedics) for review and fully adequate medical opinions addressing whether his claimed right and left knee and right and left ankle disabilities were incurred or aggravated in service, or caused or aggravated, by his now service-connected bilateral foot arthrosis with plantar fasciitis, low back, and/or lower extremity peripheral neuropathy disabilities. [If further examination of the veteran is deemed necessary for an opinion sought, such should be arranged.] The consulting clinician should provide opinions that respond to the following: (a) Identify by diagnosis each right and left knee and right and left ankle disability shown by the record during the pendency of the instant claim (or found on examination if one was found necessary and conducted). If a diagnosis of a right or left knee or a right of left ankle disability is not found, reconcile that conclusion with the clinical notations in the record that suggest that the Veteran has been receiving treatment (including with foot orthotics and braces for bilateral knee and ankle complaints). (b) Identify the likely etiology of each right and left knee and right and left ankle disability entity diagnosed. Specifically, is it at least as likely as not (a 50 percent or better probability) that it was incurred or aggravated in service or was caused or aggravated, by the Veteran's service connected (i) bilateral foot, (ii) low back, and/or (iii) bilateral peripheral neuropathy disabilities. All opinions must include a complete explanation of rationale that cites to supporting factual data and medical principles. The rationale must acknowledge that the Veteran was seen for right knee complaints and a right ankle sprain in service (supporting that there was right ankle injury in service and suggesting a possible right knee injury in service) and the Veteran's lay reports of a 30 mile forced march in service when he alleges inversion trauma occurred. It should also acknowledge his reports of related complaints continuing since service. The rationale on the secondary service connection alternate theory of entitlement must address both the causation and aggravation (worsening of the disabilities beyond their natural progression) aspects of the secondary service connection theory of entitlement (considering each of the service-connected back and lower extremity disabilities identified above). Specifically address the theory that the disabilities resulted from an abnormal gait due to the service-connected foot disabilities. Any opinion that concludes that a claimed knee or ankle disability was not caused or aggravated by an abnormal gait due to his service-connected disabilities because he is not shown to have had an abnormal gait (or does not have an ankle disability) must be reconciled with the evidence in the record showing he was provided orthotics and upright ankle supports to stabilize his ankles (he was provided ankle supports for inversions of his feet), that his complaints that his feet roll over when he walks, . GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.