Citation Nr: 22018535 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 10-43 116 DATE: March 29, 2022 REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right foot disorder other than tinea pedis is remanded. Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the U.S. Army from July 1978 to July 1981. This matter comes to the Board of Veterans' Appeal (Board) on appeal from August 2009 and August 2013 rating decisions of Department of Veterans Affairs (VA) Regional Offices (RO). The Veteran testified at a Board hearing in August 2014 related to the issue of entitlement to service connection for a back disorder before a Veterans Law Judge (VLJ) other than the undersigned. In October 2017, the Veteran was informed that that VLJ was no longer employed by the Board. In November 2017 correspondence, the Veteran elected to have a second Board hearing. The Veteran presented testimony on all issues in August 2018 before the undersigned VLJ. Transcripts of both proceedings are of record. The claims were previously before the Board, most recently in December 2019, and remanded for additional development. The matters have since been returned for further appellate review. 1. Entitlement to service connection for a low back disorder is remanded. Remand is warranted to obtain an adequate etiological opinion. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The 2019 Board remand requested that the examiner do the following: (a) Clarify all diagnosed lumbar spine disorders. (b) For each diagnosed condition, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder had onset in, or is otherwise related to, active service, to include as due to playing sports after the 1979 accident. (c) The examiner's attention is the following: December 1979 STRs documenting no injuries following a car accident; April 1981 reports of medical examination and history; August 2008 VA treatment records noting a one month history of back pain with remote history of a motor vehicle accident and mild degenerative changes of the lumbar spine; October 2009 lay testimony of chronic back pain since service; December 2011 VA treatment notes and imaging studies with a finding that the Veteran's body mass index contributed to his accelerated back degeneration; May 2013 VA bone scan showing bilateral acetabular degenerative disease; a September 2014 VA rheumatology note reporting onset of back pain 2 years after the 1979 car accident made worse by playing sports in service; February 2016 VA treatment notes attributing the Veteran's back pain to lumbar spondylosis; July 2016 VA rheumatology notes documenting L2-L3 small right foraminal disc protrusion and impingement of the L2 nerve root; and the July 2017 VA examination report. See BVA Decision (August 2019). In the February 2020 VA addendum, the examiner opined that it is less likely as not that the veteran's lumbar spondylosis is service connected as there are no medical records showing diagnosis, treatment for the back condition or any related lumbar condition that would progress to lumbar spondylosis while veteran was still in service. The examiner also noted that the Veteran had no back complaints following the MVA, the Veteran did continue to play sports following the MVA, and never complained of the back until 2008 which was decades after separation from service. However, the Board notes that Veteran initially filed a claim for a back disability in 2005. Additionally, the 2009 VA treatment records include assessment of chronic back pain. Furthermore, the examiner's rationale appears to rest solely on the lack of an in-service diagnosis, which is not required. A new opinion is necessary. 2. Entitlement to service connection for a right knee disorder is remanded. 3. Entitlement to service connection for a left knee disorder is remanded. According to the February 2017 VA opinion, the examiner determined that because the medical literature does not support that the sporadic, self-limited episodes of right and/or left knee pain, such as the Veteran experienced in 1978 and 1980, which the examiner determined was resolved because there was no evidence of disease noted on the separation examination report, caused or resulted in knee crystalline arthropathy and/ or knee mild degenerative change, such as the Veteran currently has. However, the Board notes that the July 2016 VA treatment records assesses the Veteran to have recurrent, self-limited oligoarthritis of the large and small joints of the upper and lower extremities, now with clear precipitation by high purine foods and also episodic, self-limited attacks of oligoarthritis of the knees in the setting of hyperuricemia consistent with gout. Therefore, as the examiner provided a similar description to the Veteran's in-service knee pain to the current assessment, and in light of the Veteran's contentions that his knee pain began in service, an addendum opinion is warranted to reconcile whether the sporadic, self-limited episodes of knee pain in service are the same as or related to the recurrent, episodic, self-limited knee pain consistent with oligoarthritis and/or gout currently noted. 4. Entitlement to service connection for a right foot disorder other than tinea pedis is remanded. 5. Entitlement to service connection for a left foot disorder is remanded. Remand is required to obtain compliance with the prior remand. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the 2019 remand, the Board directed the VA examiner to do the following: (a) Clarify all diagnosed conditions of the left and right foot. (b) For each diagnosed condition, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the condition had onset in, or is otherwise related to, active service, to include as due to physical training and marching in combat boots. (c) The examiner's attention is directed to the following: November 1995 treatment records documenting bilateral foot tinea pedis; a September 1996 private treatment record noting a 1987 distal fibular fracture healed without sequelae; a December 1999 private record noting mild right hallux; a March 2002 private treatment record noting a history of right little toe pain assessed as chronic retrograde pressure on the nail; February 2007 private treatment records showing left ankle soft tissue swelling; the April 2009 VA examination report and evidence cited therein; and the August 2009 VA examination report. See BVA Decision (December 2019). The examiner essentially did none of these requested actions. Additionally, the examiner appeared to rely only on a lack of a diagnosis during service. A new opinion is required. 6. Entitlement to service connection for a psychiatric disorder is remanded. Remand is required as this disability is inextricably intertwined with the claim of service connection for a back disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). This is because, in part, a private examiner has opined that chronic pain may have caused the Veteran's depressive or anxiety disorders. Accordingly, remand is required. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion regarding the etiology of the claimed right and left foot conditions from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) Clarify all diagnosed conditions of the left and right foot, to include gout, hyperkeratosis, dermatophytosis, mild hallux/varus positional deformity, and any disabilities. (b) For each diagnosed condition, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the condition had onset in, or is otherwise related to, active service, to include as due to physical training and marching in combat boots. (c) The examiner's attention is directed to the following: November 1995 treatment records documenting bilateral foot tinea pedis; a September 1996 private treatment record noting a 1987 distal fibular fracture healed without sequelae; a December 1999 private record noting mild right hallux; a March 2002 private treatment record noting a history of right little toe pain assessed as chronic retrograde pressure on the nail; February 2007 private treatment records showing left ankle soft tissue swelling; the April 2009 VA examination report and evidence cited therein; the August 2009 VA examination report; and the July 2016 VA treatment records noting the Veteran has recurrent flares of arthritis affecting midfoot, and recurrent self-limited oligoarthritis of large and small joints of the upper and lower extremities. 2. Obtain an addendum opinion regarding the etiology of the claimed lumbar spine disorders from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) Clarify all diagnosed lumbar spine disorders. (b) For each diagnosed condition, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder had onset in, or is otherwise related to, active service, to include as due to playing sports after the 1979 accident. (c) The examiner should address the following: December 1979 STRs documenting no injuries following a car accident; April 1981 reports of medical examination and history; August 2008 VA treatment records noting a one month history of back pain with remote history of a motor vehicle accident and mild degenerative changes of the lumbar spine; October 2009 lay testimony of chronic back pain since service; December 2011 VA treatment notes and imaging studies with a finding that the Veteran's body mass index contributed to his accelerated back degeneration; May 2013 VA bone scan showing bilateral acetabular degenerative disease; a September 2014 VA rheumatology note reporting onset of back pain 2 years after the 1979 car accident made worse by playing sports in service; February 2016 VA treatment notes attributing the Veteran's back pain to lumbar spondylosis; July 2016 VA rheumatology notes documenting L2-L3 small right foraminal disc protrusion and impingement of the L2 nerve root; and the July 2017 VA examination report. 3. Obtain an addendum opinion regarding the etiology of the left and right knee disabilities from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the left and/or right knee disability had onset in, or is otherwise related to, active service. Consider whether in-service symptoms described at least as likely as not represent the onset of the current recurrent symptoms and indicate whether such symptoms are more likely than not due to other causesexplain. The examiner must address the following: 1) episodes of right and left knee pain and knee chondromalacia in 1978 and 1980; 2) the lay statements at the 2018 Board hearing that his knee pain began during basic training and he sought treatment for his knees in the 1980's; and 3) July 2016 VA treatment records assessment of the Veteran to have recurrent, self-limited oligoarthritis of the large and small joints of the upper and lower extremities, now with clear precipitation by high purine foods and also episodic, self-limited attacks of oligoarthritis of the knees in the setting of hyperuricemia consistent with gout. 4. Ensure that the medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. K. MILLIKAN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Williams, 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.