Citation Nr: 21042691 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 12-04 687 DATE: July 13, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is dismissed. Service connection for chronic obstructive pulmonary disease (COPD) and emphysema is granted. Service connection for right radial nerve neuropathy is granted. Service connection for right carpal tunnel syndrome on a secondary basis is denied. Service connection for right hallux valgus, based on service aggravation, is granted. Service connection for left hallux valgus, based on service aggravation, is granted. REMANDED An initial rating in excess of 10 percent (under diagnostic code (DC) 5261) for right knee strain with medial meniscal tear and chondromalacia is remanded. A rating in excess of 20 percent (under DC 5257) for right knee instability from July 14, 2020 is remanded. An initial rating in excess of 10 percent (under DCs 5003-5261) for left knee degenerate joint disease prior to November 9, 2015 is remanded. A rating in excess of 30 percent (under DC 5055) for left total knee arthroplasty from January 1, 2017 is remanded. FINDINGS OF FACT 1. On April 19, 2019, prior to the promulgation of a decision in the appeal of entitlement to a TDIU, the Board received notification from the appellant's attorney that a withdrawal of the issue of entitlement to a TDIU is requested. 2. The Veteran's COPD and emphysema are related to service. 3. The Veteran's right radial neuropathy is related to service. 4. The Veteran does not have a disability of right carpal tunnel syndrome. 5. The Veteran's preexisting right hallux valgus was aggravated during his active service. 6. The Veteran's preexisting left hallux valgus was aggravated during his active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of entitlement to a TDIU by the appellant's attorney have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for COPD and emphysema have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for right radial neuropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 4. The criteria for service connection for right carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for right hallux valgus, based on service aggravation, have been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 6. The criteria for service connection for left hallux valgus, based on service aggravation, have been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1990 to April 1995. With respect to the increased rating claims, these are on appeal from a November 2012 rating decision. This rating decision granted service connection for right and left knee disabilities and assigned initial ratings. These claims were remanded by the Board in April 2015. A December 2015 rating decision granted service connection for left total knee arthroplasty and assigned a 100 percent rating from November 9, 2015, and a 30 percent rating from January 1, 2017. The Board remanded the increased rating claims in February 2018. A September 2020 rating decision granted service connection for right knee instability and assigned a 20 percent rating under Diagnostic Code 5257, effective July 14, 2020. The Board remanded these claims in December 2020. In that decision, the Board stated that "from November 9, 2015 until prior to January 1, 2017, the Veteran's left knee (as he was recovering from total knee replacement) was afforded a maximum 100 percent rating" and that "[a]s that represents a full grant of the appeal sought for the left knee only, that portion of the Veteran's appeal is no longer in appellate status. This portion of the Veteran's claim for an increased rating is dismissed accordingly." With respect to the service connection claims, these are on appeal from a December 2013 rating decision. The Board remanded these claims in April 2015. The Board denied these claims in February 2018. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2019 Memorandum Decision, the Court set aside the portions of the February 2018 Board decision that denied service connection for a lung disorder, a right hand disability, right carpal tunnel syndrome on a secondary basis and right and left foot disabilities other than pes planus. The Board remanded these claims in June 2020. Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 19.55. In the present case, the appellant has withdrawn his appeal with regard to issue of entitlement to a TDIU and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and entitlement to a TDIU is dismissed. Service Connection Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). COPD and emphysema With respect to the first element of direct service connection, the evidence of record during the appeal period noted diagnoses of COPD and emphysema. See December 2013 Respiratory Conditions Disability Benefits Questionnaire (DBQ) (noting a diagnosis of COPD and including diagnostic test results showing emphysema); July 2016 Respiratory Conditions DBQ (noting diagnoses of COPD and emphysema). As such, the Board finds that the first element of direct service connection has been met. With respect to the second element of direct service connection, the Veteran has contended, essentially, that his claimed lung disorders are due to in-service exposures. See December 2013 Respiratory Conditions DBQ ("Veteran states that during the Navy his respirator did not fit correctly and he could still smell paint"); February 2014 Notice of Disagreement (NOD) ("Veteran stated he was fitted for a mask that was supposed to prevent him from breathing in toxic fumes. He stated his mask did not fit correctly and he daily smelled the fumes and toxins from the environment in which he worked"); July 2016 Respiratory Conditions DBQ ("Veteran reports he was diagnosed with COPD...and that he is concerned it is due to when he did painting or corrosion control in the military. He reports he worked with paint and chemicals in enclosed spaces. He states he 'always' wore a respirator but is concerned that it may not have been fitted properly"); see also January and February 2015 Representative Statements. The Veteran's reports of in-service exposures are supported by service treatment records (STRs) and service personnel records. See Performance Evaluation Report (covering the period from September 1993 to January 1994 and noting duties and responsibilities of "Corrosion Control...Performs scheduled/unscheduled maintenance, including the detection, treatment and removal of corrosion for 14 F-14 aircraft" and also discussing the Veteran painting aircraft); October 1993 STR ("Has to wear a respirator works in corrosion control" and noting an assessment of bronchitis); January 1994 Report of Medical Examination (noting a purpose of examination of "Corrosion Control [and] Respirator Physical" and that the Veteran was qualified for corrosion control duties); January 1994 Occupational Health Summary STR (referencing respirator certification, noting present duties of corrosion control, painting, sanding and preparing aircrafts and potential hazardous exposures of isocyanate, polyurethane paint and organic vapors); January 1994 Medical Evaluation for Respirator Certification STR (noting a reason for wearing a respirator as "Corrosion Control/Polyurethane"); Undated Medical Surveillance Questionnaire STR (noting as of January 1994 job title and work activities of "Corrosion Control Sanding, Stripping, Painting of [aircraft]," potential hazards of "Inhalation of Fumes...Isocyanate...organic vapors, solvents" and protective equipment of a respirator). As the Veteran's reports of in-service exposures are consistent with the circumstances of his service, the Board finds that the second element of direct service connection has been met. With respect to the third and final element of direct service connection, a nexus between the Veteran's current COPD and emphysema and his active service, of record are multiple VA opinions. A negative VA direct service connection opinion was provided in December 2013 by Dr. M.R. This accompanying rationale, however, did not reference or discuss the Veteran's in-service exposures. As such, the Board affords this opinion minimal probative value as to the issue of whether the Veteran's claimed lung disorders are related to his in-service exposures. A negative VA direct service connection opinion was provided in July 2016 by Dr. A.M. An extensive rationale was provided in support of this opinion which did address the Veteran's in-service exposures. The August 2019 Court Memorandum Decision discussed this opinion, stating that "the examiner's opinion regarding the number of [upper respiratory infections (URIs) the Veteran] experienced in serviceand her corollary opinion as to whether that number was exceptionalwas based on an inaccurate factual premise. As such, it is entitled to no weight" and also that "[a]lthough the examiner ultimately provided a different etiology for [the Veteran's] emphysema and COPDsmokingthere is no way to know to what extent her opinion relied on her determination that [the Veteran] did not have chronic bronchitis or an unusual number of URIs during service" and "[t]hus, to the extent that the July 2016 VA examiner's opinion was based, even in part, on the inaccurate factual premise that [the Veteran] had only four in-service URIs or episodes of bronchitis, it is inadequate." In light of the Court's Memorandum Decision, the Board will afford the negative July 2016 no probative value as to the issue of nexus. A November 2020 VA opinion was provided by J.D., Family Nurse Practitioner (FNP). The opinion stated in part that "[t]he [V]eteran's COPD/emphysema are likely related to the following factors: cigarette smoking and exposure to silica (sand blasting) and noxious fumes (painting jets) in enclosed areas. Veteran reports that he wore a respirator when performing his duties, but claims that 'it didn't fit well at all and the person fitting the respirator didn't know what he was doing; he just handed them out.'" As to the specific issue of whether the Veteran's current COPD and emphysema are related to the Veteran's in-service exposures, the Board finds the November 2020 VA opinion to be the most probative evidence of record. This opinion, provided by a medical professional who reviewed the Veteran's claims file, indicated that the Veteran's COPD and emphysema were due, at least in part, to his in-service exposures. The Board notes that there is no competent and adequate opinion of record contrary to the conclusion provided by this opinion. Based on the November 2020 VA opinion, the Board finds that the third and final element of direct service connection has been met. In sum, the Board finds that the Veteran's COPD and emphysema are related to service. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for COPD and emphysema is warranted. Right radial neuropathy & right carpal tunnel syndrome In December 2012, the Veteran submitted a statement that "I request the VA open a claim for disability compensation benefits for right hand condition. My right hand is no longer able to grip as strong as my left hand. This is because I hurt my right hand while wrestling with friends while I was in the service" and that "[t]his has caused me discomfort and possible carpal tunnel in my right wrist." The Veteran was afforded a VA examination in December 2013 and a Hand and Finger Conditions DBQ was completed. It was noted that the Veteran "states he banged his right hand during active duty and he was put on light duty until it healed. He gets daily intermittent right hand pain." Under the diagnosis section, the examiner stated "[s]ymptomatic complaints of right hand pain without objective evidence of a medical condition. Normal right hand." In the December 2013 rating decision on appeal, the RO denied service connection for "right hand condition" and "right upper extremity carpal tunnel syndrome." The Board remanded these claims in April 2015 for a new VA examination, which was conducted in July 2016. A Hand and Finger Conditions DBQ was completed and under the diagnosis section it was stated that "[t]he Veteran does not have a current diagnosis associated with any claimed condition listed above," with the referenced above listing stating "recurrent right hand injury residuals." The examiner also stated that "[t]here is insufficient evidence to support a current diagnosis of the right hand. Veteran reports subjective focal pain over the MCP (metacarpophalangeal) joint of his right long finger, but there is no evidence of any pathology on physical exam or xrays." The examiner also stated "STRs do show evidence...that [V]eteran hurt his right hand when he accidentally hit the wall when wrestling with his friends in 1991...one would also not expect any persistent pain or residuals from a contusion without fracture incurred over 25 years ago." A Peripheral Nerves Conditions DBQ was also completed. It was noted that the "Veteran reports intermittent pain and paresthesias ('falling asleep') in his right index and middle fingers, especially after performing gripping activities." A diagnosis was noted of right carpal tunnel syndrome. An opinion was provided that "[i]t is less likely than not that [V]eteran's right carpal tunnel syndrome (CTS) had its onset in service because [V]eteran's current symptoms are mild and intermittent," that "[i]f [V]eteran had had CTS over 20 years ago when he was on active duty, one would expect considerably more severe symptoms and/or muscle atrophy, which is not the case" and that "[o]n the contrary, the mild and intermittent nature of [V]eteran's current symptoms supports a relatively recent onset associated with the activities that [V]eteran describes as provoking symptoms (working with tools, riding his motorcycle, and other activities involving gripping and repetitive hand movements)." In February 2018, the Board denied service connection for a right hand disability and right carpal tunnel syndrome, finding essentially that the Veteran did not have a right hand disability and that right carpal tunnel syndrome was not related to service or a service-connected disability. The Board relied primarily on the July 2016 VA examinations and opinions. The August 2019 Memorandum Decision stated that "[t]he Secretary acknowledges that, since the February 2018 Board decision issued, the U.S. Court of Appeals for the Federal Circuit clarified in Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018), that, in claims involving musculoskeletal disabilities, pain resulting in functional impairment may constitute a disability, even without an identifiable underlying pathology" and that "[o]n that basis, the Secretary concedes that the Board's statement of reasons or bases is inadequate with respect to a right hand musculoskeletal disability and that remand is warranted...The Court agrees that remand is warranted in light of Saunders." As to carpal tunnel syndrome, the Memorandum Decision stated that "the Court will construe [the Veteran's] argument as asserting that his claim for right CTS on a secondary basis is inextricably intertwined with his claim for a primary right hand musculoskeletal disability" and "that remand is warranted for right CTS on a secondary basis." The Court also stated that the Veteran "raises no argument pertinent to the Board's denial of service connection for right CTS on a direct basis...Accordingly, the Court deems that matter abandoned and will dismiss that portion of the appeal." The Board remanded these claims in June 2020 for a new VA examination, which was conducted in October 2020. A Hand and Finger Conditions DBQ was completed by J.D., FNP, and a diagnosis was noted of right radial nerve neuropathy. It was also noted that "[i]n 1991, the [V]eteran was wrestling with friends and struck his hand on a ship's metal door. He was seen and determined to not have a fractured hand" and that "[h]e continues to have right hand pain and numbness of the first 3 fingers on the right hand that occurs 3-4 times a week. This interferes with his abilities to perform fine motor activities." The examiner also referenced the "Veteran's right hand condition diagnosed today as neuropathy, particularly of the distal radial nerve." A Peripheral Nerve Conditions DBQ was also completed by the same medical professional. A diagnosis was noted of "[l]esion of radial nerve, unspecified upper limb to include radial neuropathy." The same medical history from the Hand and Finger Conditions DBQ was included. Incomplete paralysis of the right radial (musculospiral) nerve was noted. The examiner also stated "[f]or the [Veteran's] claimed condition of right carpal tunnel syndrome there is no diagnosis because [t]he [V]eteran has intermittent numbness in his right hand, but not in a median nerve distribution." The examiner also marked a checkbox to provide a negative secondary service connection opinion and separately marked a checkbox to provide a negative aggravation of a preexisting service opinion. The accompanying rationales (which were the same), however, addressed direct service connection and stated: The [V]eteran was diagnosed with right CTS in 2016. Upon examination and history today, the [V]eteran's right hand condition appears to be more of a radial nerve neuropathy manifest in the numbness, pain, and weakness of the right 1st, 2nd, and 3rd fingers; CTS numbness would show in the 3rd and 4th fingers (and only on the radial side of the 4th finger). He denies symptoms consistent with CTS, but his symptoms are consistent with a right radial nerve neuropathy. Based on where the radial nerve is distributed in the hand (on the dorsal surface) and that the [V]eteran injured his right hand's dorsal surface in 1991, his current neuropathy is more likely related to that injury. Following this opinion, the RO requested a new opinion that was obtained in January 2021 from J.C., Nurse Practitioner (NP). The medical professional marked a checkbox to provide a negative secondary service connection opinion, but the accompanying rationales addressed direct service connection and stated: 7/91 hit wall with right hand accidentally wrestling with friends. Pain 3rd MCP, diagnosed hand trauma without fracture and ACE wrap, follow up as needed. No follow up noted in STRs....3/95 separation exam denied any hand or bone, joint complaints. Nothing further noted in c-file until 12/13 [bilateral] hand x-rays normal. 7/16 [bilateral] hand x-rays normal. 7/16 DBQ hand no diagnosis rendered. 12/13 DBQ diagnosed normal right hand... 10/2020 hand DBQ diagnosed right radial nerve neuropathy- notes [V]eteran is "bass guitar player (which he adores)". Medical literature supports upper extremity neuropathies are a common condition in guitar players. The symptoms of pain and decreased [range of motion] to hand are at least as likely as not due to the radial neuropathy. The 1991 injury was acute and resolved with no further complaint, diagnosis or treatment noted in service, on separation or within a year of separation. There is an 18 year gap between separation from service and next hand complaint therefore intercurrent injury/disease cannot be ruled out as etiology. A nexus has not been established. The Board finds that service connection is warranted for right radial neuropathy. With respect to the first element of direct service connection, the Board notes that there is conflicting evidence during the appeal period as to what, if any, the accurate diagnosis is for the Veteran's right upper extremity. As to the accurate diagnosis for the Veteran's right upper extremity, the Board finds the most recent VA examination and opinions to be the most probative evidence of record. In this regard, following review of the Veteran's claims file and examination of the Veteran, the October 2020 VA examiner provided a diagnosis of right radial nerve neuropathy. The examiner referenced the prior diagnosis of carpal tunnel syndrome, but explained that the Veteran "denies symptoms consistent with CTS, but his symptoms are consistent with a right radial nerve neuropathy." The subsequent January 2021 VA opinion also stated that "[t]he symptoms of pain and decreased [range of motion] to hand are at least as likely as not due to the radial neuropathy." In review of the most recent VA examination (from October 2020) and VA opinion (from January 2021), such attributed the Veteran's right upper extremity symptomatology to right radial nerve neuropathy. The Board accordingly finds that right radial nerve neuropathy is the Veteran's accurate current diagnosis for his right upper extremity symptomatology. As such, the Board finds that the first element of direct service connection has been met. With respect to the second element of direct service connection, as noted, the Veteran has contended that his claimed disability is related to an in-service event where he injured his right hand. A July 1991 STR stated that the Veteran "accidently hit wall [with right] hand when wrestling [with] friends. Now [with] pain in [right] hand" and an assessment was noted of right hand trauma without fracture. As such, the Board finds that the second element of direct service connection has been met. With respect to the third and final element of direct service connection, a nexus between the Veteran's current right radial neuropathy and his July 1991 right hand injury, the Board finds that there is at least an approximate balance of positive and negative evidence as to whether such a nexus exists. Initially, the Board notes that a negative VA direct service connection opinion was provided in December 2013 by Dr. M.R. This accompanying rationale, however, did not reference or discuss the Veteran's documented July 1991 right hand injury. As such, the Board affords this opinion minimal probative value as to the issue of whether the Veteran's right radial neuropathy is related to this in-service injury. Similarly, while the July 2016 VA examiner provided an opinion stating in part that "STRs do show evidence...that [V]eteran hurt his right hand when he accidentally hit the wall when wrestling with his friends in 1991...one would also not expect any persistent pain or residuals from a contusion without fracture incurred over 25 years ago," this opinion did not specifically address the more recent diagnosis of right radial neuropathy. As such, as to the distinct issue of whether the Veteran's right radial neuropathy is related to his July 1991 right hand injury, the Board affords this opinion limited probative value. The remaining VA opinions of record addressing the issue of nexus are the October 2020 opinion from FNP J.D. and the January 2021 opinion from NP J.C. These opinions, essentially, offered opposite conclusions, with the October 2020 opinion linking the Veteran's current right radial neuropathy to the July 1991 right hand injury and the January 2021 opinion stating that the Veteran's neuropathy was not related to the July 1991 right hand injury. The Board finds that these two opinions are the most probative evidence of record as to the specific issue of whether the Veteran's right radial neuropathy is related to his July 1991 right hand injury, as they are the only two opinions that clearly addressed this distinct issue. Upon review of these opinions, the Board finds no clear reason to favor one opinion over the other and that there is at least an approximate balance of positive and negative evidence as to whether a nexus exists between the Veteran's right radial neuropathy and his July 1991 right hand injury. As such, and resolving any reasonable doubt in the Veteran's favor, the Board finds that such a nexus exists and that the third and final element of direct service connection has been met. See 38 U.S.C. § 5107(b) ("When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, [VA] shall give the benefit of the doubt to the claimant"); 38 C.F.R. § 3.102. In sum, the Board finds that the Veteran's right radial neuropathy is related to service. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for right radial neuropathy is warranted. The Board further finds that the scope of the Veteran's December 2012 claim on appeal is entirely encompassed by the diagnosis of right radial neuropathy, for which service connection has been granted in this decision. As noted, in the Veteran's December 2012 claim he generally referenced a claim "for right hand condition" and the Board has found that the most probative evidence of record has attributed the Veteran's right upper extremity symptomatology to right radial nerve neuropathy. The Board acknowledges that the Veteran included in his December 2012 claim a reference to "possible carpal tunnel in my right wrist." The Veteran is not, however, competent to provide such a diagnosis or to limit his claim to carpal tunnel syndrome. See 38 C.F.R. § 3.159(a)(2) (defining competent lay evidence); Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) ("As a self-represented layperson at the time his claim was filed, the appellant had neither the legal or medical knowledge to narrow the universe of his claim or his current condition to" a specific diagnosis). To the extent that the specific issue of service connection for carpal tunnel syndrome remains on appeal following the grant of service connection for right radial neuropathy, the Board finds that this claim must be denied because the most probative evidence of record showed that the Veteran does not have right carpal tunnel syndrome, but rather that his symptomatology is attributable to right radial neuropathy. Lacking a disability of right carpal tunnel syndrome, service connection for right carpal tunnel syndrome must be denied. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Right hallux valgus & left hallux valgus A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment. See 38 U.S.C. § 1111, 38 C.F.R. § 3.304(b). This concept is often referenced as the presumption of soundness. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during that service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. See 38 C.F.R. § 3.306(b). Under 38 U.S.C. § 1153, a veteran "bears the burden of showing that his preexisting condition worsened in service" and "[o]nce the veteran establishes worsening, the burden shifts to [VA] to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease." See Horn v. Shinseki, 25 Vet. App. 231, 235 n.6 (2012) (citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004)). Stated differently, a "veteran must initially establish only that a preexisting condition worsened during the period of active duty, and at that point the veteran has the benefit of the presumption of aggravation." See Smith v. Shinseki, 24 Vet. App. 40, 48 (2010). If VA cannot show by clear and unmistakable evidence that the worsening of the preexisting condition was due to the natural progress of the disease, then "the increase is presumed to have been caused by active duty service." See id. In December 2012, the Veteran submitted a statement that "I request the VA open a claim for disability compensation benefits for bunions on my feet. This is a condition that existed prior to my service in the military but it got worse during my military service and has worsened over time." The Veteran's May 1990 enlistment Report of Medical Examination noted upon clinical evaluation that the Veteran's feet were abnormal, with a notation of "[h]allux valgus bilat[eral] mild." This same finding was repeated under the section of the form titled "summary of defects and diagnoses." As noted, the May 1990 enlistment examination report characterized the Veteran's bilateral hallux valgus as mild. A February 1993 left foot x-ray report noted an impression of mild hallux valgus. A January 1994 Report of Medical Examination noted upon clinical evaluation that the Veteran's feet were abnormal, with a notation of "lateral deviation [at metatarsophalangeal joints] is marked bilaterally." Under the section of the form titled "summary of defects and diagnoses," reference was made to the previously quoted finding regarding the feet. A recommendation was also noted of "consider podiatry eval[uation]." On the accompanying Report of Medical History form, the Veteran stated "I am in good health" and he denied ever having or having now foot trouble. The Veteran's March 1995 separation Report of Medical Examination noted upon clinical evaluation that the Veteran's feet were normal, but also noted that the Veteran's feet were "[with] bilateral hallux valgus." Under the section of the form titled "summary of defects and diagnoses," nothing was noted related to the Veteran's feet and it was noted that there was a normal limit physical exam. On the accompanying Report of Medical History Form, the Veteran stated "I am in good health" and he denied ever having or having now foot trouble. In the section of the form completed by a medical professional, it was noted "all conditions resolved, no current complaints." In the February 2014 NOD, the Veteran's representative stated that the "Veteran stated he had bunions on his feet before he went into the military and his big toes slanted inward" and that "[h]e stated, however, that his condition worsened or was aggravated while he was in the service. He stated his big toes became even more slanted and overlap his second toes and his bunions became more severe and painful as a result of running in combat boots." Following a July 2016 VA examination, an opinion was provided that: It is less likely than not that [V]eteran's bilateral hallux valgus increased in severity beyond its natural progression during active service because bilateral hallux valgus typically progresses with normal weightbearing over time. Although [V]eteran has pronounced bilateral hallux valgus now, he has had this condition for over 36 years, and his time in active duty was only 4.5 years of those 36 years. In addition, he worked as an electrician (a non-sedentary position) for approximately 25 years. While his hallux valgus is undoubtedly worse than it was in 1990, its current level of severity is consistent with normal age-related progression. In February 2018, the Board denied service connection for right and left foot disabilities, finding essentially that feet disabilities were not incurred in or aggravated by active service. The Board relied primarily on the July 2016 VA examination and opinions. In the August 2019 Memorandum Decision, the Court stated that the Veteran "highlights the difference between 'mild' hallux valgus noted at entry to service in 1990 and the 'marked' deformity noted in January 1994" and that "[t]he Secretary agrees that the evidence cited 'does fairly suggest that [the Veteran's] hallux valgus may have worsened during his service." The Court further stated that: The Secretary further concedes that the Board's statement of reasons or bases is deficient because it appears the Board found the presumption of aggravation rebutted but did not explain how the 2016 VA examiner's opinion that hallux valgus was 'less likely than not' aggravated by service met the 'clear and unmistakable evidence' standard necessary to rebut the presumption...Under the presumption of aggravation, where a preexisting medical condition was noted on entry into serviceas hallux valgus was in [the Veteran's] caseand the veteran establishes worseningas the Secretary concedes is suggested herethe burden shifts to VA to show, by clear and unmistakable evidence, a lack of aggravationi.e., that any increase in disability was due to the natural progress of the disease...Because the Secretary concedes that the Board's analysis did not address the correct standard, the Court agrees that remand is warranted to correct this deficiency. The Board remanded these claims in June 2020 for a new VA opinion. The remand directives stated in part that "[i]n providing this opinion, the examiner should discuss the Veteran's [STRs]. Specifically, the May 1990 enlistment examination report notes that the Veteran has mild bilateral hallux valgus. The January 1994 Corrosion Control and Respirator Physical examination report notes a finding that 'Lateral deviation @ M-T-P's is marked bilaterally.'" The requested opinion was obtained in April 2021 by Dr. P.G., who provided substantively the same opinions regarding the right and left feet (only the right foot opinion will be quoted below). A checkbox was marked that "the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." The accompanying rationale stated: There is no documentation in the [V]eteran's available medical records indicating that the [V]eteran suffered any flare-ups or injuries that worsened, aggravated, or altered the natural progression of his pre-existing hallux valgus. As the symptoms[] the [V]eteran complained of during his military career are consistent with the natural progression of his pre-existing condition. Hence it is less likely than not that the [V]eteran's pre-existing right foot hallux valgus was aggravated beyond its natural progression by an in-service injury, event, or illness. Initially, the evidence of record during the appeal period demonstrated right and left hallux valgus. See July 2016 Foot Conditions DBQ (noting a diagnosis of bilateral hallux valgus). The Board finds that the Veteran had right and left hallux valgus that preexisted his active service. In this regard, as noted, the May 1990 enlistment examination report specifically noted bilateral hallux valgus. As such, the presumption of soundness is not for application in this case and the Board finds that the Veteran's bilateral hallux valgus preexisted service. As outlined above, service connection may be granted for a disability resulting from a disease aggravated by active service and a preexisting disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1110, 1153; 38 C.F.R. § 3.306. As such, the crucial question in this claim is whether the Veteran's preexisting right and left hallux valgus were aggravated during his active service. Initially, the Board finds that, resolving any reasonable doubt in the Veteran's favor, there was an increase in disability or severity of the Veteran's preexisting right and left hallux valgus during service. As noted, while the May 1990 enlistment Report of Medical Examination noted "mild" bilateral hallux valgus, the January 1994 Report of Medical Examination noted "lateral deviation [at metatarsophalangeal joints] is marked bilaterally." The August 2019 Memorandum Decision referenced this evidence and stated that "[t]he Secretary agrees that the evidence cited 'does fairly suggest that [the Veteran's] hallux valgus may have worsened during his service." The Court also stated, regarding whether the Veteran established worsening of his preexisting bilateral hallux valgus, that "the Secretary concedes [this] is suggested here." In light of the increased severity suggested by the descriptive words used on the January 1994 Report of Medical Examination ("marked") when compared to the May 1990 Report of Medical Examination ("mild"), considering VA's concession when this issue was before the Court and resolving any reasonable doubt in the Veteran's favor, the Board finds that there was an increase in disability or severity of the Veteran's preexisting right and left hallux valgus during service. As outlined above, once worsening of a preexisting disability is shown, the presumption of aggravation applies and clear and unmistakable evidence is required to rebut this presumption. The Board finds that sufficient evidence to rebut the presumption is not present in this case. The August 2019 Memorandum Decision noted that "[t]he Secretary further concedes that the Board's statement of reasons or bases is deficient because it appears the Board found the presumption of aggravation rebutted but did not explain how the 2016 VA examiner's opinion that hallux valgus was 'less likely than not' aggravated by service met the 'clear and unmistakable evidence' standard necessary to rebut the presumption." This language suggests that the July 2016 VA opinion as to aggravation was insufficient to rebut the presumption of soundness based on the use of the "less likely than not" language. In light of the August 2019 Memorandum Decision and VA's concession to the Court in this appeal, the Board will also find the July 2016 VA opinion insufficient to rebut the presumption of aggravation based on the "less likely than not" language used. The subsequently obtained April 2021 VA opinion is problematic for the same reason. While marking a checkbox that included the clear and unmistakable evidence standard, the accompanying rationale for the opinion also used the same language cited in the July 2016 opinion, specifically that "it is less likely than not that the [V]eteran's pre-existing...hallux valgus was aggravated." Consistent with the August 2019 Memorandum Decision and VA's prior concession to the Court in this appeal, the Board finds that the April 2021 VA opinion is insufficient to rebut the presumption of aggravation based on the "less likely than not" language used. Moreover, the Board finds that the April 2021 VA opinion also did not substantially comply with the June 2020 Board remand directives, as the opinion did not discuss the January 1994 Report of Medical Examination as was specifically requested. As clear from the above discussion, this record has been found to be particularly relevant by the Veteran and his representative, VA and the Court. Lacking specific discussion of this particular record, the Board finds that the April 2021 VA opinion did not substantially comply with the June 2020 Board remand. Accordingly, based on the "less likely than not" language used and the lack of discussion of the January 1994 Report of Medical Examination, the Board finds that the April 2021 VA opinion was not adequate or sufficient to rebut the presumption of soundness in this case. The Board further finds that the remaining evidence of record did not otherwise rebut this presumption. In sum, the Board finds that there was an increase in disability or severity of the Veteran's preexisting right and left hallux valgus during service and that accordingly the presumption of aggravation applies. The Board further finds that this presumption has not been rebutted by the required clear and unmistakable evidence. These findings are warranted particularly so when reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for right and left hallux valgus, based on service aggravation, is warranted. The Board further finds that the scope of the Veteran's December 2012 claim on appeal is entirely encompassed by this grant. In this regard, as noted, in December 2012 the Veteran submitted a statement that "I request the VA open a claim for disability compensation benefits for bunions on my feet. This is a condition that existed prior to my service in the military but it got worse during my military service and has worsened over time." In review, the Veteran specifically sought compensation for bilateral bunions (hallux valgus) of his feet as preexisting service and being aggravated and this is the benefit granted by the Board in this decision. REASONS FOR REMAND Initially, in pertinent part, it is noted that 38 C.F.R. § 4.71a Diagnostic Code 5257 and Diagnostic Code 5262 were revised effective February 7, 2021. The Veteran should be afforded an examination that considers the revised criteria. Right knee strain with medial meniscal tear and chondromalacia & right knee instability The Veteran was last afforded a VA examination for his service-connected right knee disability in July 2020. A subsequent September 2020 VA primary care note stated "[right] knee pain...He feels that his pain is getting worse." Physical examination findings did not document information pertaining to range of motion (relevant under DC 5261) or instability (relevant under DC 5257). An assessment was noted of "[right] knee pain" and a right knee x-ray was ordered; a later November 2020 VA treatment record noted that this x-ray request was discontinued based on the age of the request. A September 2020 VA screening treatment record accompanying the September 2020 VA primary care note stated "having trouble wi[th] pain in the right knee," as well as "[r]eported new onset of weakness or worsening of weakness in the last 60 days" and "[n]ew onset or worsening of range of motion in the last 60 days." In light of the clear reported worsening of the Veteran's right knee disability since the last VA examination, the Board finds that remand is warranted to afford the Veteran a new VA examination to determine the current severity of such disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Left knee degenerate joint disease & left total knee arthroplasty The Board finds that the left knee increased rating claims are inextricably intertwined at this time with the right knee increased rating claims being remanded and that accordingly remand of the left knee claims is also warranted. See Harris v. Derwinski, 1 Vet. App. 180 (1991). In this regard, the right knee examination requested on remand likely will contain findings that also pertain to the left knee and the VA treatment records requested on remand could also contain findings pertaining to the left knee. The matters are REMANDED for the following actions: 1. Obtain all outstanding VA treatment records from April 16, 2021. 2. Schedule the Veteran for an orthopedic examination to assess the severity of his left and right knee disabilities. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination of the left and right knees should include range of motion studies. Regarding range of motion testing, the examiner should report the point (in degrees) at which pain is elicited, as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should perform stability testing, report whether there is instability or subluxation, and express an opinion as to the severity of such instability or subluxation. The examiner should comment on whether the Veteran has a prescription from a medical provider for a brace, cane, or walker due to recurrent instability. The examiner should provide an opinion as to whether the Veteran has sustained cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. The examiner should comment on the period of time he has required treatment, to include whether it is less than or more than 12 consecutive months, and whether the shin splint disabilities have been unresponsive to either shoe orthotics or other conservative treatment, and whether the shin splint disabilities have been unresponsive to surgery. The examiner should comment on whether there is nonunion of the tibia and fibula, with loose motion, requiring a brace. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. The Court has held that an inability to observe a flare-up is an insufficient basis for not providing an estimate on additional functional limitation. The examiner is to provide a statement concerning how the left and right knee disabilities affect his functioning and activities. The examiner is asked to describe the types of limitations he would experience as a result of his left and right knee disabilities. The examiner must provide a comprehensive rationale for the opinions. M.W. KREINDLER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoopengardner, 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.