Citation Nr: 22018016 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 20-02 541 DATE: March 27, 2022 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left foot disability, to include flat foot, hallux valgus, or plantar fasciitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1979 to July 1982. The Department of Veterans Affairs (VA) is grateful for his service. A brief mention is warranted of the divided review statuses between the Veteran's claims, including those currently the subject of appeal before the Board of Veterans' Appeals (Board). The above-listed issues now before the Board arise as legacy appeals (under the "legacy appeal process") of a November 2018 VA Regional Office (RO) rating action. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new AMA framework for veterans to appeal VA decisions with which they are not satisfied and includes various options for appealing an initial rating decision to the Board. The prior system for deciding such appeals is now referred to as the "legacy framework" or "legacy appeal process." In the course of this appeal, multiple other issues were also the subject of appeal to the Board. However, those other issues subject to initiated appeals became the subject of submitted AMA higher level review requests via VA Forms 20-0996 submitted in March 2020 and May 2020. They are accordingly not presently in appellate status for review by the Board. Pursuant to the Form 20-0996 submitted in May 2020, the Veteran's claim for service connection for right foot flat foot, hallux valgus, and plantar fasciitis is subject to higher-level review under the AMA, whereas the claim for service connection for left foot flat foot, hallux valgus, and plantar fasciitis is presently before the Board as a legacy appeal. 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left foot disability, to include flat foot, hallux valgus, or plantar fasciitis, is remanded. The Veteran was afforded VA examinations in May 2018 addressing right knee and bilateral foot disabilities. The examiner assessed that right knee strain and bilateral pes planus, hallux valgus, and plantar fasciitis were causally related to service based on aggravation by strenuous activities in service. However, the examiner based these opinions on his erroneous belief that the Veteran had active duty from 1979 to 1982 and July 1984 to 1990, rather than the Veteran's actual active military service period from July 1979 to July 1982. The interval from 1984 to 1990 was Reserves membership, not active service. Different service connection rules apply for claims based on active duty for training (ACDUTRA) and inactive duty for training (INADTRA) during National Guard or Reserves membership. Injury during INACDUTRA is a basis for service connection but disease during INACDUTRA is not. 38 U.S.C. § 101 (24). Service connection may be granted for injury or disease incurred or aggravated while on ACDUTRA. 38 U.S.C. § 101 (24). INACDUTRA is defined as duty (other than full-time duty) under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23). A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (per curiam). Due to the incorrect service interval relied upon by the May 2018 examiner, the opinions provided are not probative. Additional VA medical opinions were obtained in October 2018 addressing claimed right knee disability and left foot flat foot, plantar fasciitis, and hallux valgus. The examiner opined that these conditions were not at least as likely as not (not approximately 50 percent probability or greater) causally related to service. However, these opinions were based only on the fact that records from service did not document findings or treatment for right knee strain or flat foot, plantar fasciitis, or hallux valgus. The October 2018 examiner supported opinions against a link between claimed right knee or foot disabilities and service on their being "no factual evidence" to support a link. However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (where lay evidence provided is credible and competent, the absence of contemporaneous medical documentation does not preclude further evaluation as to the etiology of the claimed disorder). The examiner's failure to consider the Veteran's lay histories of right knee disability and left foot disabilities renders these examination opinions inadequate for rating purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, new VA examinations are required with due consideration of the Veteran's periods of active service and his self-reported histories of disability. The matters are REMANDED for the following actions: 1. Obtain any VA treatment records and any pertinent private treatment records not yet associated with the claims file. The Veteran's authorization or assistance should be requested, as appropriate. All requests, responses, and records received should be documented in the claims file. If any records cannot be obtained the Veteran and his representative should be appropriately notified. 2. Then, an in-person examination should be undertaken by an examiner qualified to address the nature and etiology of claimed right knee disability and flat foot, hallux valgus, and plantar fasciitis disabilities of the left foot. Contralateral parts (left knee and right foot) should also be examined for comparison purposes. The examiner should carefully review the record including service treatment records, post-service treatment records, and past examinations. If any tests or studies are necessary to address the questions posed, then these should be accomplished, and pertinent findings should be reported in detail in the examination report. The examiner should be advised that prior examinations in May 2018 were not probative because the examiner based opinions on the mistaken belief that the Veteran had active military service from 1979 to 1990. The examiner should note that the Veteran had active military service only from July 1979 to July 1982, which was followed by Army Reserve membership. The examiner should be advised that prior examinations in November 2018 were inadequate because the examiner failed to consider lay statements when considering whether claimed disability were related to service. Thus, the examiner must also document and consider the Veteran's own statements regarding his disabilities, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. Separately for any right knee disability and for any flat foot, hallux valgus, or plantar fasciitis of the left foot present during the claim period, the examiner should provide an opinion whether it is at least as likely as not (approximately 50 percent probability or greater) that the disability developed in service or is otherwise causally related to service. For any arthritis of the right knee or left foot, the examiner should separately opine whether it is at least as likely as not (approximately 50 percent probability or greater) that the disability was present to a disabling degree within a year following the Veteran's separation from service in July 1982. A complete rationale must be provided for all opinions expressed. 3. Thereafter, readjudicated the remanded claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.