Citation Nr: 22018100 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-08 797 DATE: March 28, 2022 REMANDED Entitlement to service connection for a back disability, to include as secondary to the service-connected bilateral pes planus, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to the service-connected bilateral pes planus, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to the service-connected bilateral pes planus, is remanded. Entitlement to service connection for a right leg disability, to include as secondary to the service-connected bilateral pes planus, is remanded. Entitlement to service connection for a left leg disability, to include as secondary to the service-connected bilateral pes planus, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1994 to October 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a August 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board remanded this matter for further evidentiary development. In October 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the claims file. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Service connection for a back disability, to include as secondary to the service-connected bilateral pes planus In the August 2019 remand, the Board noted that the Veteran had not been accorded a VA examination related to his claim for service connection for a back disability. The Veteran contended he had back pain that began in service and continued to the present, and his private treatment records reflect complaints of, and treatment for, low back pain. The Board noted that an examination was needed to assess the nature and etiology of his back disability, to include addressing whether his current back disability was caused by his service-connected bilateral pes planus. A VA examination was obtained in January 2021 along with corresponding opinions provided in multiple examination report documents. A diagnosis of lumbosacral strain was given, and the examiner recorded the Veteran's medical history, including his report of back trouble beginning during his active service. The examiner recorded the Veteran's reports of trouble bending and turning as well as trouble with lifting and packing during service and that these same limitations have continued to the present. The examiner opined it was less likely than not that the Veteran's current lumbosacral strain was related to his military service, as his current disability was due to overuse. As supporting rationale for this opinion, the examiner noted that the Veteran's enlistment examination was silent for any back complaints and there were no records in service indicating any back complaints, treatment, or diagnosis for a back disability. The examiner also observed that there were no medical records between separation and the present indicating any back problems. This, however, is contrary to the evidence of record, which reflects complaints of long, ongoing back pain in 2018 and the Veteran's reports that his back pain has been ongoing since service. Also, he reported that he did not have the financial means to seek treatment for his back pain prior to 2018. The examiner relied on a lack of documentation of the Veteran's back complaints since service and found it was less likely than not related to his military service. In addressing secondary service connection, the examiner opined it was less likely than not that the Veteran's back disability was proximately due to, or the result of, his service-connected bilateral pes planus. As supporting rationale, however, the examiner provided the exact same rationale as was provided for the direct service connection opinion and did not provide any real rationale for the secondary service connection question. The only rationale the examiner provided was that there was not medical evidence indicating that the Veteran's back condition is due to his service-connected bilateral pes planus, and this is insufficient. In addressing whether the Veteran's low back disability was aggravated beyond its natural progression by his service-connected bilateral pes planus, the examiner once again provided the same rationale as was provided for the direct service connection question and did not actually address the question of aggravation. The January 2021 VA examiner failed to consider Veteran's contentions in addressing whether his low back disability is related to his service, to include whether such is caused or aggravated by his service-connected bilateral pes planus. The examiner relied on the absence of documented complaints of, or treatment for, a back disability despite the Veteran's competent reports of back pain continuing since his service and mistakenly stated that there was no documentation up to the present, despite records from 2018 reflecting long-standing back pain. The examiner failed to provide adequate rationale for the opinions, failed to address the Veteran's contentions, and included largely the same rationale for three separate etiology questions. The Board finds that the January 2021 examination to be inadequate and, as a result, there has not been substantial compliance with the August 2019 Board remand and corrective action is needed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, an additional VA opinion should be obtained to assess the etiology of the Veteran's low back disability, to include whether such is due to his service-connected bilateral pes planus. The Board additionally notes that, in April 2021, the Veteran submitted additional testimony and statements regarding his back disability and his representative submitted articles regarding the relationship between foot disabilities and the development of back disabilities and requests that the examiner address these statements and articles in providing an opinion. Service connection for a right knee disability, to include as secondary to the service-connected bilateral pes planus Service connection for a left knee disability, to include as secondary to the service-connected bilateral pes planus In the August 2019 remand, the Board observed that a VA medical opinion had not been obtained addressing the etiology of the Veteran's claimed right and left knee disabilities. The Board noted that an August 2017 VA examiner found no diagnosis associated with the Veteran's knee pain and, as such, did not provide an etiological opinion. The Board observed that the Veteran's VA treatment records indicated a current bilateral knee disability and that, as such, a new VA examination was necessary to determine the nature and etiology of the Veteran's bilateral knee disabilities. The Board additionally noted that a March 2018 statement from the Veteran's private treatment provider suggested that the Veteran's knee disabilities may be secondary to his service-connected bilateral pes planus disability and requested that this theory be addressed by the VA examiner on remand. Importantly, the Board additionally noted that the Veteran's service treatment records (STRs) indicate he may have entered service with a right knee disability. Veterans are presumed to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. Id. Where a condition is not noted on entry, the presumption of soundness may be rebutted only if the examiner determines that (1) the condition clearly and unmistakably preexisted the Veteran's service, and (2) it clearly and unmistakably was not aggravated by service. A history of a fractured right patella was noted by the examiner based on the Veteran's May 1994 entrance report of medical history and the examiner indicated that the injury occurred three years prior and no information regarding any residuals or continuing disability was provided. However, no defect was listed on the Veteran's May 1994 entrance examination under the summary of defects section of the examination report. The Board indicated that the presumption of soundness would not apply to any diagnosed right patella disability but would apply to any other right knee disability. The Board requested that the VA examiner address whether there was clear and unmistakable evidence that the Veteran's pre-existing right patella disability was not aggravated during service or whether it was clear and unmistakable that any increase was due to the natural progression of the disability and that the examiner address whether any other diagnosed right knee disability also existed prior to the Veteran's service. In addition to these questions, the Board requested that the examination obtained address the nature and etiology of the Veteran's right and left knee disabilities, to include whether the Veteran's current knee disabilities were caused by his service-connected bilateral pes planus. A VA examination was obtained in January 2021 along with corresponding opinions provided in multiple examination report documents. Diagnoses of bilateral patellofemoral pain syndrome and left cartilage fissure of the medial patellar facet were indicated. The examiner recorded the Veteran's medical history, including the Veteran's report of severe pain and swelling in the knees beginning in service that have continued to present functional limitations to the present. The examiner opined it was less likely than not that the Veteran's current knee disabilities were related to his military service. The examiner explained that, although the Veteran was seen during service for complaints of knee pain, there was no diagnosis given related to the knees. The examiner relied on the absence of documented medical records from the Veteran's separation to 2017 indicating any knee problems and that, based on the lack of evidence that his knee complaints were longstanding and chronic stemming from service, it is less likely than not that the Veteran's knee disabilities are related to his service. In addressing secondary service connection, the examiner opined it was less likely than not that the Veteran's bilateral knee disabilities were proximately due to or the result of his service-connected bilateral pes planus. As supporting rationale, however, the examiner provided the exact same rationale as was provided for the direct service connection opinion and did not provide any real rationale for the secondary service connection question. In addressing whether the Veteran's bilateral knee disabilities were aggravated beyond their natural progression by his service-connected bilateral pes planus, the examiner once again provided the same rationale as was provided for the direct service connection question. The examiner additionally indicated that there was no medical evidence indicating that the Veteran's bilateral knee disabilities were aggravated by his service or by his bilateral pes planus based on the lack of evidence showing a chronic knee condition. In conjunction with both the causation and aggravation opinions, the examiner stated that it is clinically known that patellofemoral pain syndrome is caused by high impact activities such as running and jumping and would not be due to the Veteran's short period of active duty. The examiner opined that the Veteran's right knee disability clearly and unmistakably existed prior to service but did not provide rationale or reasoning for this opinion. The examiner only stated that the right knee disability existed prior to service and there are no other right knee disabilities. The examiner failed to explain, however, why the Veteran's patellofemoral pain syndrome was the same as the fractured right patella. The January 2021 VA examiner failed to consider Veteran's contentions in addressing whether his right and left knee disabilities are related to his service, to include whether such are caused or aggravated by his service-connected bilateral pes planus. The examiner relied on the absence of documented complaints of or treatment for knee disabilities despite the Veteran's competent reports of knee pain continuing since his service. The examiner failed to provide adequate rationale for the provided opinions and included largely the same rationale for separate etiology questions and wholly failed to address the Veteran's contentions. The Board finds the January 2021 examination to be inadequate and, as a result, there has not been substantial compliance with the August 2019 Board remand and corrective action is needed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, an additional VA opinion should be obtained to address the etiology of the Veteran's right and left knee disabilities, to include whether such is due to his service-connected bilateral pes planus. The Board additionally notes that, in April 2021, the Veteran submitted additional testimony and statements regarding his knee disabilities and his representative submitted articles regarding the relationship between foot disabilities and the development of knee disabilities and requests that the examiner address these statements and articles in providing an opinion. Service connection for a right leg disability, to include as secondary to the service-connected bilateral pes planus Service connection for a left leg disability, to include as secondary to the service-connected bilateral pes planus In the August 2019 remand, the Board noted that a VA medical opinion had not been obtained addressing the etiology of the Veteran's claimed right and left leg disabilities. The Veteran contended that his leg pain began in active service and has persisted since that time, and his private treatment records reflect that he had been diagnosed with Achilles' tendinitis, shin splints, and posterior tibial tendinitis. See March 2018 Private Treatment Record. A VA medical opinion was needed to assess the nature and etiology of the Veteran's right and left leg disabilities, to include addressing whether such are caused by his service-connected bilateral pes planus, as was suggested by the March 2018 private treatment provider. A VA examination was obtained in January 2021 along with corresponding opinions provided in multiple examination report documents. A diagnosis of bilateral shin splints, or medial tibial stress syndrome, was given, and the examiner recorded the Veteran's medical history, including his report of severe pain and swelling in the legs beginning in service that have continued to present functional limitations to the present. The examiner opined it was less likely than not that the Veteran's current right and left leg disabilities were related to his military service. As rationale for this opinion, the examiner focused predominantly on the Veteran's claimed knee disabilities and did not provide any rationale addressing his bilateral shin splints. The examiner only indicated that it was less likely than not that the Veteran's medial tibial stress syndrome is related to his service. In addressing secondary service connection, the examiner opined it was less likely than not that the Veteran's bilateral shin splints disability was proximately due to or the result of his service-connected bilateral pes planus. As supporting rationale, however, the examiner provided the exact same rationale as was provided for the direct service connection opinion and did not provide any real rationale for the secondary service connection question, which is insufficient. In addressing whether the Veteran's bilateral medial tibial stress syndrome disability was aggravated beyond its natural progression by his service-connected bilateral pes planus, the examiner once again provided the same rationale as was provided for the direct service connection question. The only statement the examiner provided regarding aggravation was that it is clinically known that shin splints are caused by high impact activities such as running and jumping and would not be due to the Veteran's short period of active duty. The January 2021 VA examiner failed to consider Veteran's contentions in addressing whether his right and left leg disabilities are related to his service, to include whether such is caused or aggravated by his service-connected bilateral pes planus. The examiner focused the provided opinions on the Veteran's claimed knee disabilities and failed to address the Veteran's contentions regarding the onset of his bilateral leg disabilities. The examiner failed to provide adequate rationale for the provided opinions and included the same inadequate rationale for three separate etiology questions and failed to address the etiology of the Veteran's right and left leg disabilities. The examiner additionally failed to consider the March 2018 statement provided by the Veteran's private treatment provider which suggested that medial tibial stress syndrome is a common problem associated with pes planus and failed to consider whether the Veteran's right and left leg disabilities developed as a result of his service-connected bilateral pes planus. The Board finds that the January 2021 examination to be inadequate, and, as a result, there has not been substantial compliance with the August 2019 Board remand and corrective action is needed. Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, an additional VA opinion should be obtained to assess the etiology of the Veteran's right and left leg disabilities, to include whether such are due to his service-connected bilateral pes planus. In April 2021, the Veteran submitted additional statements regarding his disabilities, and his representative submitted articles regarding the relationship between foot disabilities and the development of other disabilities, including shin splints, and requests that the examiner address these statements and articles in providing an opinion. Accordingly, these matters are REMANDED for the following action: 1. Obtain a VA medical opinion from an appropriate clinician to determine whether his diagnosed low back disability, to include lumbosacral strain, is related to his military service. The record must be made available to, and be reviewed by, the VA examiner in conjunction with this evaluation. If deemed necessary, the Veteran should be scheduled for an examination. After reviewing the claims file, the examiner is asked to do the following: a. Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's diagnosed low back disability onset in, or is otherwise related to, his military service. Is the Veteran's current low back disability consistent with his reported in-service experiences? b. Notwithstanding the above, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disabilities were caused or aggravated beyond their natural progression (worsened) by his service-connected bilateral pes planus. Causation and aggravation are two separate inquires, and both must be answered. The Veteran is competent to report his symptoms/history, and such reports must be acknowledged and considered in formulating any opinion. A clear explanation and rationale for all opinions renderedand a discussion of the facts and medical principles involvedwould be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he/she should explain why. 2. Obtain a VA medical opinion from an appropriate clinician to determine whether his diagnosed right and left knee disabilities are related to his military service. The record must be made available to, and be reviewed by, the VA examiner in conjunction with this evaluation. If deemed necessary, the Veteran should be scheduled for an examination. After reviewing the claims file, the examiner is asked to do the following: a. Opine as to whether there is clear and unmistakable evidence that the Veteran's right knee disability pre-existed service, and if so, whether it was aggravated (permanently worsened) during, or as a result of the Veteran's service. In this regard, the examiner should consider the Veteran's May 1994 enlistment examination wherein the examiner noted a right patella fracture three years before his entrance to service but did not list a right knee defect on entrance. If there was an aggravation (permanent worsening) of the preexisting disability, the examiner is asked to opine whether there is clear and unmistakable evidence that this aggravation due to the natural progression of the condition. b. For each right knee disability that is found not to have pre-existed the Veteran's service and for each left knee disability, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's diagnosed right and left knee disabilities onset in, or is (are) otherwise related to, his military service. In other words, are the Veteran's current right and left knee disabilities consistent with the Veteran's reported in-service experiences? c. Notwithstanding the above, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disabilities were caused or aggravated beyond their natural progression (worsened) by his service-connected bilateral pes planus. In this regard, the Board emphasizes that causation and aggravation are two separate inquires, and both must be answered. In providing these opinions, the examiner is asked to address the March 2018 statement from the Veteran's private treatment provider suggesting a relationship between knee pain and pes planus, as well as the articles submitted by the Veteran and his representative in April 2021. The Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation and rationale for all opinions renderedas well as a discussion of the facts and medical principles involvedwould be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 3. Obtain a VA medical opinion from an appropriate clinician to determine whether his diagnosed right and left leg disabilities, to include bilateral shin splints, are related to his military service. The record must be made available to, and be reviewed by, the VA examiner in conjunction with this evaluation. If deemed necessary, the Veteran should be scheduled for an examination. After reviewing the claims file, the examiner should: a. Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's diagnosed right and left leg disabilities onset in, or is (are) otherwise related to, his military service. In other words, are the Veteran's current right and left leg disabilities consistent with the Veteran's reported in-service experiences? b. Notwithstanding the above, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disabilities were caused or aggravated beyond their natural progression (worsened) by his service-connected bilateral pes planus. In this regard, the Board emphasizes that causation and aggravation are two separate inquires, and both must be answered. In providing these opinions, the examiner is asked to address the March 2018 statement from the Veteran's private treatment provider suggesting a relationship between medial tibial stress syndrome and pes planus, as well as the articles submitted by the Veteran and his representative in April 2021. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion requested herein. A clear explanation and rationale for all opinions renderedas well as a discussion of the facts and medical principles involvedwould be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she must explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for any VA medical examination that may be scheduled may impact the determination made. 38 C.F.R. § 3.655. He is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.