Citation Nr: 21041237 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-01 920 DATE: July 8, 2021 REMANDED Service connection for a right knee condition is remanded. Service connection for a right foot condition is remanded. Service connection for a right ankle condition is remanded. Service connection for left ear hearing loss is remanded. Service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1972 to January 1976. This matter originally came before the Board of Veterans' Appeals (Board) from September 2011 and October 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified at a January 2019 Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. This matter was previously remanded by the Board for further development in May 2019. This matter is again before the Board. The Board previously noted that the Veteran's claims file did not have evidence of an official rating decision for the right ankle claim. In addition, there was no evidence that the Veteran was notified of any rating decision denying the claim. See May 2019 BVA Decision. Attempts to find the rating decision were in vain. See November 2019 Email Correspondence. As such, the Board gives the Veteran the benefit of the doubt and finds that either VA did not make a determination on the Veteran's original service connection claim for a right ankle condition, or at least, did not notify the Veteran of a determination, until the October 2015 rating decision. As a result, the right ankle claim has remained open since March 1976. See Williams v. Peake, 521 F.3d 1348, 1350 (2008); Juarez v. Peake, 21 Vet. App. 537, 542 (2008). Additionally, the Board notes that the Veteran previously filed a service connection claim for venereal warts. See April 1978 VA 21-526. It does not appear that any development has taken place for this claim. The Board also notes that there is no evidence of official rating decisions for the Veteran's 1978 service connection claim for a right ear condition or the Veteran's 1978 service connection claim for a back condition. There is also no evidence that the Veteran was notified of any rating decisions denying the right ear condition and back condition claims. As such, the three issues are referred to the RO for appropriate action. 1. Service connection for a right knee condition is remanded. The Veteran believes that service connection for a right knee condition is warranted. See November 2020 Appellate Brief. A May 2019 Board decision remanded the right knee issue for a VA examination which, among other things, was to opine as to whether the Veteran's right knee condition was related to service. See May 2019 BVA Decision. The VA examination took place in February 2020. See March 2020 C&P Exam. The Board finds that its remand instructions were not substantially complied with. Specifically, the examination did not opine as to whether the Veteran's right knee condition was related to service. See Stegall v. West, 11 Vet. App. 268 (1998). As such, a remand is needed for a new VA examination. 2. Service connection for a right foot condition and service connection for a right ankle condition are remanded. The Veteran believes that service connection for a right foot condition and a right ankle condition is warranted. See November 2020 Appellate Brief. Generally, a VA medical examination is required for a service connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service; but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran has diagnoses of right foot pes planus and a right ankle fracture. See January 2020 CAPRI. As such, the Board finds that the first prong is met. The Veteran reported that the right foot and right ankle problems were related to a fall during service. He had right foot and right ankle problems right after he left service. They had always hurt following the fall, but he was young at the time, and his pain tolerance was high, so he didn't do anything about the problems until they worsened. See Hearing Transcript. The Veteran also reported that his service records showed treatment for an ankle condition and that he had been seen for a chronic right ankle condition since service. See March 2019 Appellate Brief. Medical records suggest that the Veteran felt that the foot was part of the ankle for purposes of reporting health problems. See November 2017 CAPRI. As such, the Board finds the second and third prongs met. Given these facts, the Board finds that a remand is necessary to obtain an examination to determine the etiology of the Veteran's right foot and right ankle conditions. See McLendon, 20 Vet. App. at 83. 3. Service connection for left ear hearing loss and service connection for right ear hearing loss are remanded. The Veteran believes that service connection for left and right ear hearing loss is warranted. See November 2020 Appellate Brief. Evidence in the claims file shows that the Veteran has been receiving disability benefits from the Social Security Administration (SSA). Currently, there are no SSA records in the claims file. As VA has notice of the existence of apparently relevant records held by SSA, VA has a duty to assist by requesting those records. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). As such, a remand is needed. Given the amount of time which will pass while on remand, updated treatment records should be obtained. The matter is REMANDED for the following action: 1. Attempt to obtain the Veteran's Social Security records, including all underlying medical records, in accordance with 38 C.F.R. § 3.159. 2. Make another attempt to obtain the Veteran's medical treatment records from the Gainesville/Lake City VAMC from 1980 to 2004 in accordance with 38 C.F.R. § 3.159. The Board notes that a previous request for these records contained an error concerning the date range requested, making it possible that outstanding records remain. See March 2015 VA 10-7131. 3. Update VA and private treatment records. VA treatment records appear current up to December 2019. 4. Schedule one or more appropriate VA examinations for the Veteran's right knee, right foot, and right ankle conditions. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following: (A) Identify all right knee, right foot, and right ankle related disabilities existing at any point during the pendency of the appeal (i.e. since March 1976 for the right ankle issue and since December 2010 for the right knee and right foot issues), even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is related to the Veteran's service? (C) Is it at least as likely as not (a 50 percent or greater probability) that any right knee, right foot, and/or right ankle arthritis manifested to a compensable degree within one year following the Veteran's separation from service? If so, which ones? (D) Is it at least as likely as not (a 50 percent or greater probability) that any right knee, right foot, and/or right ankle arthritis was noted during service/within one year following the Veteran's separation from service, with continuity of symptomatology since? If so, which ones? (E) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's pes planus was aggravated beyond its natural progression by the Veteran's service? (F) If any of the Veteran's identified disabilities are found to be related to service, is it at least as likely as not (a 50 percent or greater probability) that such disability/disabilities (including but not limited to any medications taken for such disability/disabilities) caused or aggravated any or all of the Veteran's remaining identified disabilities beyond their natural progression? If aggravation is found, state whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (G) If any of the Veteran's remining identified disabilities are found to be caused/aggravated by any identified disabilities which were found to be related to service, is it at least as likely as not (a 50 percent or greater probability) that such disability/disabilities (including but not limited to any medications taken for such disability/disabilities) caused or aggravated any or all of the Veteran's remaining identified disabilities beyond their natural progression? If aggravation is found, state whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record: Right knee (1) The Veteran's report that a right knee condition was documented at the time of discharge from service. See July 2020 Congressionals. (2) A medical record from 2020 showing slight flattening and irregularity of the articular surface of the medial and lateral tibial plateaus; minimal osteopenia; minimal narrowing of the patellofemoral articulation; minimal narrowing of the medial compartment; minimal hypertrophic lipping of the articular periphery of the patella; and a diagnosis of degenerative arthritis. See March 2020 C&P Exam. (3) A medical record from 2020 showing the Veteran's report of first recalling increasing problems with the right knee about midway through service. One of his tasks during service was to respond to fires. He was wearing heavy equipment and was in the process of stepping off a shipboard crane when he stumbled and fell down the steps for several feet. He injured the right knee and has had problems with the right knee ever since with worsening symptoms over the years. Id. (4) Medical records from 2004 showing that the Veteran's knees ached. Medical records from 2011 showed chronic right knee pain and arthritis. Medical records from 2012 showed that apparently no imaging had been done in the past. Medical records from 2014 showed the Veteran's report of a right knee injury, which occurred during service and was documented in his record. Medical records from 2016 showed the Veteran's report of right knee pain for many years. See January 2020 CAPRI. (5) The Veteran's report that following the October 1973 severe right knee sprain during service, the right knee continued to hurt throughout the rest of service, continued to hurt in 1976 following discharge from service, and has continued to hurt up through the present. See January 2019 Hearing Transcript. (6) The Veteran's report that during service, he fell off a high crane on a boat and his right knee hit the deck. He had fallen a couple of feet down onto his hands and knee. He hobbled to sick bay and they wrapped the knee. There was no time off on the ship. He went back to sick bay a couple of times for the problem during service. Even though the knee was having problems, the Veteran was young and did not really pay attention to it. He tried to work through it, but there was always something wrong. The knee continued to hurt after the incident. The pain was not constant, but something was clearly wrong. It would come back during service when he had to do physical stuff like training, jogging, and running. He saw outside doctors for the problem. When he filed a claim in 1976, he had knee pain. He saw a private doctor for the problem in 1976, which was a little less than one year from leaving service. Doctors in Florida around 1977 told him that the right knee needed surgery because it was dragging around and hurting the left knee. The left knee ended up being operated on. The Veteran also reported that when a knee gets busted, arthritis sets in. Further information is provided. Id. (7) A medical record from 2017 showing that the Veteran first hurt the right knee during service. See November 2017 CAPRI. (8) Medical records from 2016 showing the Veteran's report of right knee pain for many years. The Veteran also reported left knee surgery about 10 years prior due to the wear and tear of the right leg. There was an assessment of apparently some length tension relationship difference with "HS" and "Quad" creating additional compression in the joints causing increased pain with "WB." This may have been altering the arthrokinematics of the knee joint, compromising gait, and diminishing balance and stability in the right leg. See September 2017 CAPRI. (9) A medical record from 2015 showing the Veteran's report of hurting the right knee after a fall during service and having worn a brace for a short time. The problem got worse and the Veteran was diagnosed with bone-on-bone joint disease after service. He received multiple injections. The problem has progressively worsened since onset. See November 2015 C&P Exam. (10) Medical records from 2015 showing that the right knee had a varus deformity. See August 2015 CAPRI. (11) A medical record from 2015 showing a severe right knee strain during service. See June 2015 C&P Exam. (12) Medical records from 1993 showing pain in both knees and degenerative joint disease. See March 2015 VA 10-10 Forms. (13) Medical records from 1992 showing cramps in the lower extremities. See March 2015 Medical Treatment Record. (14) Service records showing complaints of joint pain and an in-service right knee injury diagnosed as a severe right knee sprain. During service, the Veteran complained of joint pain and had muscle aches. See December 2014 STR Medical. (15) All other relevant lay and medical evidence. Right foot (16) Medical records from 2015 showing an antalgic gait on the right. The Veteran had long-term issues with pes planus causing an altered gait. See January 2020 CAPRI. (17) The Veteran's report of having problems with the right foot right after leaving service. It always hurt, but he was young, and his pain tolerance was high, so he did not do anything about it, and it got worse. The right foot may have been a problem since the fall during service. The Veteran also reported that since service, the right knee has been hurting the right foot, including but not limited to, a more recent fall around 2015, which was due to the right knee giving out, which worsened the right foot problem. Further information is provided. See Hearing Transcript. (18) A medical record from 2017 showing that the Veteran thought that the foot was part of the ankle. The right foot had been more recently broken because the right knee wore out. See November 2017 CAPRI. (19) The Veteran's report that right knee pain caused him to slip and fall and break a bone in the right foot. See January 2016 Congressionals. (20) Medical records from 1992 showing cramps in the lower extremities. Medical records from 1993 showed that ibuprofen was needed for foot pain. Medical records from 1994 showed the use of medication for foot pain. See March 2015 Medical Treatment Record. (21) Service records showing that pes planus was listed as a defect upon entry into service. During service, the Veteran complained of joint pain and had muscle aches. See December 2014 STR Medical. (22) All other relevant lay and medical evidence. Right ankle (23) The Veteran's report that the right ankle problem was documented at the time of discharge from service. See July 2020 Congressionals. (24) Medical records showing that around 2015, the right knee gave way and caused the Veteran to fall and break his right ankle. See January 2020 CAPRI. (25) The Veteran's report that his service records show treatment for a right ankle condition and that he has been seen for a chronic right ankle condition since service. See March 2019 Appellate Brief. (26) The Veteran's report of having problems with the right ankle right after leaving service. It always hurt, but he was young, and his pain tolerance was high, so he did not do anything about it, and it got worse. The right ankle may have been a problem since the fall during service. The Veteran also reported that since service, the right knee has been hurting the right ankle, including but not limited to, a more recent fall around 2015, which was due to the right knee giving out, which worsened the right ankle problem. Further information is provided. See Hearing Transcript. (27) A medical record from 2017 showing a diagnosis of a right ankle sprain during service and that the Veteran submitted claims for a right ankle sprain in 1976 and 1978. During service, on the flight deck, the right ankle swelled up. It has bothered him ever since. During service, he had a slip and fall. The right ankle has been worked on ever since service. The right ankle broke more recently because the right knee wore out and caused the Veteran to fall. See November 2017 CAPRI. (28) The Veteran's report of treatment for the right ankle in 1976 and that the right ankle was hurt in 1976. See July 2015 Fully Developed Claim. (29) Medical records from 1994 showing tenderness and swelling of the right ankle. See March 2015 VA 10-10 Forms. (30) Service records showing complaints of joint pain and that the Veteran had muscle aches. See December 2014 STR Medical. (31) The Veteran's 1978 report of hurting his right ankle during service and receiving treatment for it. See April 1978 VA 21-526. (32) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has 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. 5. Readjudicate the issues on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, 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.