Citation Nr: 1318547 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 07-34 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left ankle disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from June 1991 to June 1995 and from October 1995 to March 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2008, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In August 2008, April 2009, July 2010, March 2012, and in December 2012, the Board remanded this issue to the RO via the Appeals Management Center (AMC) for additional development. The issue has been returned to the Board for appellate consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. In this regard, the record contains conflicting medical opinions as to the nature and etiology of the Veteran's left ankle symptoms, which the Veteran contends are due to an ankle sprain that he suffered during active service. November 1994 service treatment records document that the Veteran suffered a left ankle sprain. The Veteran complained of a swollen left ankle from an inversion injury. The Veteran jumped off a Humvee tailgate and landed on a root one month earlier. The Veteran complained of pain with range of motion and prolonged standing. Physical examination revealed mild edema/errythema of the left ankle and point tenderness. Limited passive range of motion due to pain. X-rays revealed that the Veteran suffered a left ankle inversion injury three weeks earlier. The impression was mild soft tissue swelling about the lateral malleoulus. Later that same month, the Veteran was again seen after he reinjured his left ankle. The assessment was recurrent left ankle sprain. An April 1995 report of medical examination for release from active service reflects that the Veteran's lower extremities and other musculoskeletal systems were evaluated as clinically normal. On contemporaneous self-report of medical history the Veteran stated that he was in good physical condition and was taking no medication. He indicated that he had swollen or painful joints. The examiner noted that the Veteran bilateral patellelfemoral syndrome for 2 years. The Veteran also indicated that he had no arthritis, bone, joint or other deformity and no foot trouble. A March 1998 report of medical examination for re-enlistment is negative for any findings pertaining to the left ankle and on contemporaneous self-report of medical history, the Veteran responded in the negative as to having swollen or painful joints, arthritis, bone, joint or other deformity or foot trouble. In December 2006, the Veteran underwent a VA compensation and pension examination of his left ankle. The examiner included findings that the Veteran had pain over the left anterior talo-fibular ligament, had excess fatigability with use, and that after repetitive motion he lost 5 degrees of functional range of motion in inversion. X-rays revealed a normal left ankle. The examiner diagnosed hypertrophic scarring of the anterior talo-fibular ligament and opined that the Veteran's left ankle pain was due to his sprain during active service. In a December 2007 rating decision, the RO denied the claim on the basis that there was no permanent residual or chornic disability shown resulting from in-service treatment of a left ankle condition. The RO furthered that service connection for left ankle pain could not be granted without an appropriate diagnosis of the etiology of the pain, noting that pain is a symptom rather than a discrete pathological entity. A January 2009 VA examination revealed that physical examination of the left ankle was normal and x-rays were normal. The diagnosis was normal ankles. In a September 2010 statement, the Veteran reported that he has had constant pain in the left ankle since the in-service sprain and that the ankle gives out on him and he loses his balance. In April 2012, a VA physician stated that the claims file had been reviewed but, given that the physician could not determine how the December 2006 examiner had determined that the Veteran had hypertrophic scarring of the left ankle anterior talo-fibular ligament, the physician could not determine the etiology of the condition. The physician stated that the December 2006 examination findings were normal and X-rays were normal and that the Veteran was found to have normal ankles during a 2009 examination. The examiner then stated that the in-service ankle sprain occurred in 1994. However, there is no documentation of chronicity in his available medical records, therefore: it is less likely than not (LESS THAN 50% PROBABILITY) that the left ankle sprain is the etiology/cause/aggravating factor of the ankle diagnosis on 12/16/2006 (12 years later). Pursuant to the Board's December 2012 remand instructions, an additional medical opinion was sought from a VA physician. In an April 2013 DBQ report, the VA physician noted that the claims file was reviewed and an in-person examination was undertaken. The VA physician checked off a box indicating that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA physician noted that the Veteran sprained his left ankle in 1994 while misstepping and twisting it on a root at Fort Bragg and that he sprained the same ankle in other incidents while on active duty. The Veteran reported chronic left ankle pain and weakness since. The examiner noted that in December 2006, the Veteran was given a diagnosis of "hypertrophic scarring anterior talo-fibular ligament" and it was that examiner's opinion that his left ankle condition was connected to service. However, it appears that the rate disregarded this diagnosis and opinion and the Veteran had a repeat VA examination years later in April 2012. At that time, the VA examiner did not agree with the diagnosis and could not establish pathology based on his examination. The current VA examiner stated that she was asked to review the records and form an opinion on whether "left ankle hypertrophic scarring anterior talo-fibular ligament is related to the Veteran's in-service November 1994 left ankle sprain." The VA examiner stated that her answer is that she could not answer this question without resorting to mere speculation. The VA examiner furthered that part of the problem is that the original diagnosis "hypertrophic scarring anterior talo-fibular ligament" is confusing and bizarre, and not a well accepted diagnosis in medicine. It makes no sense to diagnose a scar on a ligament and that also clinically. Significantly, moreover, the VA examiner stated that she did not examine the Veteran herself, the diagnosis in question is "confusing and bizarre, and not a well accepted diagnosis in medicine" and thus, she could not answer the question posed by the Board in the December 2012 remand without resorting to mere speculation. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). Without further clarification, the Board is without medical expertise to ascertain whether the Veteran has a current left ankle disability, and if so, the actual diagnosis, and if such disability is related to service, specifically, the left ankle sprain sustained in service. Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). It is noted that a VA medical examination is not inadequate merely because the medical examiner states he or she cannot reach a conclusion without resort to speculation. Jones v. Shinseki, 23 Vet. App. 382 (2010). Thus, while VA has a duty to assist a veteran by providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from the procurable medical evidence. Nevertheless, the Court did find in Jones that simply concluding that the etiology of a disability could not be resolved without speculation without providing any explanation why, was inadequate. The phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Further, the Court indicated the examiner should clearly identify precisely what facts cannot be determined. For example, it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes. In this case, the April 2013 VA examiner clearly stated that she did not examine the Veteran (despite checking a box on the first page of the DBQ indicating that an in-person examination had been undertaken) and indicated that she could not provide an opinion without resorting to mere speculation without actually performing a medical examination of the Veteran. As such, the Board finds that the April 2013 examiner has indicated that an actual examination could enable an opinion to be provided. In light of the above, the Board finds that an additional VA examination is warranted by a panel of physicians with the appropriate expertise to clarify the medical evidence of record, reconcile the conflicting medical opinions, and provide an etiological opinion as to any diagnosed left ankle disability. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for an examination by a panel of two physicians with the appropriate expertise, to include the April 2013 VA examiner, if available, for an etiological opinion. The claims files must be provided to the examiners for their review in connection with this examination, and the examination report must state that the claims file was reviewed. All necessary tests and clinical evaluations should be performed as part of this examination of the Veteran. The examiners should specifically identify all disabilities of the left ankle. Then, for each left ankle disability, the examiners are requested to provide a consensus opinion as to whether it is as likely as not (a 50 percent or greater probability) that any diagnosed left ankle disability is etiologically related to service, to include the in-service left ankle sprain. In rendering this opinion, the examiners must take into account all of the Veteran's statements as to whether his left ankle condition has persisted since service. In providing the above, the examiners are requested to discuss and reconcile the December 2006 VA examiner's diagnosis of hypertrophic scarring of the anterior talo-fibular ligament that he related to the Veteran's active service and the contrary findings by subsequent examiners' that such diagnosis was not supported by the record and that such diagnosis was not well accepted in the medical community. A complete rationale for all opinions must be provided. If the examiners cannot provide the above requested opinions without resort to speculation, or a consensus opinion cannot be achieved, supporting rationale must be provided. 2. To help avoid future remand, ensure that the requested opinion is responsive to the questions in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken by the RO/AMC. Stegall v. West, 11 Vet. App. 268 (1998). 3. Then, readjudicate the issue on appeal. If the benefit sought is not allowed, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).