Citation Nr: 1802218 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-15 241A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and His Spouse ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from September 1987 to December 2010. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. During the pendency of the appeal, jurisdiction was transferred to the Roanoke, Virginia, RO. In October 2014, the RO denied a claim of service connection for bilateral dry eye. The Veteran appealed the decision and a statement of the case (SOC) was issued in October 2016. The Veteran did not perfect an appeal of the issue; consequently, the matter is not currently before the Board. The Board notes the Veteran was notified that VA Form 9 received on January 17, 2017, was not going to be accepted with regard to the issue of service connection for bilateral dry eye as it was untimely. See notice dated January 20, 2017. He was further notified that he had one year from the date of the letter to appeal this decision. To date, he has not appealed that determination. The Veteran presented testimony before the Board in August 2017. The transcript has been obtained and associated with the electronic record. The Veteran submitted additional medical records in support of his claim in September 2017. He waived initial RO consideration of this evidence during the August 2017 Board hearing. Thus, they were considered in preparation of this remand. 38 C.F.R. § 20.1304(c). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran was afforded a VA examination in December 2014. The examiner opined the Veteran's current ankle condition (bilateral chronic ankle sprain) was less likely related to service because there was an "absence of documented history of ankle symptoms, trauma, or diagnoses." When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examination did not provide sufficient rationale for the opinions expressed with regard to the issue of etiology of the Veteran's bilateral ankle condition. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported with an analysis); Nieves-Rodriguez, 22 Vet. App. 295, 301(2008) (noting that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion"). Service treatment records actually show the Veteran sought treatment for right ankle sprain in February 1991, which he also reported on a March 1991 report of medical history. In May 2000, he sought treatment for his left ankle and an x-ray of the ankle revealed a likely non-unified old osteophyte fracture of the navicular bone, otherwise normal. In May 2010, he complained of bilateral ankle pain, with no known cause. In basing the opinion primarily upon the lack of in-service ankle symptoms or trauma, the examiner failed to provide a sufficient basis for the negative etiological opinion. Moreover, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. The 2014 VA examiner previously indicated that radiographic reports taken that date revealed no abnormal findings; however, subsequent x-rays show bilateral talonavicular degenerative changes. A September 2017 private treatment note has further indicated that the Veteran's bilateral degenerative joint disease, tarsal coaliation, is likely congenital and does not result in degeneration of joints, but given the Veteran's reports of jumping out of planes, he likely progressed past any natural degeneration typically observed in the general population. These new findings have not been considered by a VA examiner. Given the inadequacies in the VA examination and opinions, as well as the new medical evidence of record, a remand is warranted in order to provide the Veteran with an additional VA examination that addresses the questions delineated below. Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the Veteran for a VA examination. The electronic record, including a copy of this remand, must be made available to the examiner as part of the examination, and the examiner must indicate in his/her report whether the electronic record was reviewed. All indicated tests and studies should be completed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a bilateral ankle disability had its onset during active service or is any way related to his active duty service. Service treatment records documenting bilateral ankle complaints and the 2000 radiographic report showing a likely non-unified old osteophyte fracture of the left navicular bone, the Veteran's military service record showing he received a parachutist ribbon and airborne training, his statements regarding the history of in-service hard landings from parachute jumps, jumping off vehicles, and doing full gear marches, and continued problems with his ankles since service, the post-service radiographic findings of bilateral talonavicular degenerative changes, the September 2017 private treatment note, and any other pertinent clinical findings of record, must be considered and discussed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. The examination report must be reviewed to ensure it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. If upon completion of the above action the claims remain denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran 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 appeal must be afforded expeditious treatment. The law requires that all issues 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. §§ 5109B, 7112 (2014). ______________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2014), 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) (2017).