Citation Nr: 18143342 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 15-40 537 DATE: October 18, 2018 REMANDED Entitlement to service connection for a right ankle disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1991 to January 1996. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in April 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board observes that, subsequent to the issuance of the October 2015 statement of the case, additional evidence consisting of the Veteran’s vocational rehabilitation file was associated with the record. While he did not waive Agency of Original Jurisdiction (AOJ) consideration of such evidence, it is irrelevant to the instant matter and, therefore, there is no prejudice to him in the Board proceeding with a review of his appeal at this time. 38 C.F.R. § 20.1304(c)(1). Entitlement to service connection for a right ankle disorder. At his April 2016 Board hearing and in documents of record, the Veteran reported that he sprained his right ankle during service; however, no X-rays were taken at such time. He further indicated that he has experienced symptoms, to include pain and limited range of motion, since such time and, while he did not seek medical care on a consistent basis over the years, he self-treated his right ankle with home remedies and over-the-counter medication. The Veteran also denied any pre- or post-service injury to his right ankle. Therefore, he contends that service connection for a right ankle disorder is warranted. The Veteran’s service treatment records reflect complaints of right ankle pain for a day in July 1992. At such time, it was noted that he twisted it inward and was having a sharp constant pain, which increased with weight bearing. He denied a history of a fracture. The impression was mild lateral ankle sprain. A September 2013 post-service private treatment record reflects the Veteran’s report that he injured his right ankle, among other things, while running full speed and accidently fell in a 3-foot hole during military service and had experienced symptoms since time. Other specified inflammatory polyarthropathies, probable early traumatic arthritis of multiple joints following an accident during military service, was assessed. A VA treatment record dated the same month reflects the Veteran’s report that he had an injury when he fell out of a truck and has experienced chronic pain since such time. X-rays showed no acute bony abnormality or significant arthritis change. Chronic joint pain was assessed. At an April 2014 VA examination, an old avulsion fracture of the right ankle was diagnosed based upon an X-ray that showed a small bone density consistent with an old avulsion fracture adjacent to the medial malleolus. The examiner observed that the Veteran reported that his right ankle disorder began when he sprained it multiple times from running and marching on all types of terrain. However, she opined that the Veteran’s right ankle disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the examiner noted that the Veteran’s in-service treatment was for a right ankle sprain and his current X-ray findings were consistent with an old avulsion fracture, and found that, given the lack of evidence noting that the fracture occurred during service, such was less likely than not related to any in-service injury. In an April 2014 statement, the Veteran’s private physician, Dr. Ng, indicated that he had reported an in-service injury to his right ankle and currently had a coalition in his subtalar joint. In this regard, Dr. Ng opined that such most likely was injured or fractured when he had his injury in the military. Based on a review of the record, the Board finds that a remand is necessary in order to obtain an addendum opinion so as to clarify the nature of the Veteran’s current right ankle disorder and whether such is related to his military service. In this regard, there appears to be some question as to whether he has a diagnosis of an old avulsion fracture as a September 2013 X-ray revealed no pertinent findings and an April 2014 X-ray showed a small bone density consistent with an old avulsion fracture adjacent to the medial malleolus. Furthermore, while the April 2014 VA examiner found that the Veteran’s current right ankle disorder was not related to his military service, she based her rationale primarily on the fact that the Veteran was treated for a sprain rather than a fracture, and did not consider his lay statements regarding other in-service injuries or his reports of a continuity of symptomatology since service. Furthermore, while Dr. Ng determined that the Veteran’s right ankle disorder was related to an injury during military service, he did not offer a rationale for such opinion. Therefore, in light of the conflicting diagnoses and opinions of record, an addendum opinion is necessary to decide the claim. Furthermore, the Veteran testified at his Board hearing that he had been treated by Dr. Ng for at least five years; however, his complete records are not on file. Therefore, such should be obtained on remand. The matter is REMANDED for the following action: 1. Request that the Veteran submit, or authorize VA to obtain, all records from Dr. Ng. After obtaining any necessary authorization from the Veteran, make at least two (2) attempts to obtain records from Dr. Ng. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Return the record to the VA examiner who conducted the April 2014 examination of the Veteran’s right ankle. The record and a copy of this Remand must be made available to the examiner. If the April 2014 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should address the following inquiries: (A) Identify all right ankle disorders found to be present at any point pertinent to the Veteran’s September 2013 claim, even if such is asymptomatic or resolved. In this regard, the examiner should clarify whether the Veteran has a diagnosis of old avulsion fracture in light of the fact that a September 2013 X-ray showed no pertinent findings. If the examiner finds that the Veteran does not have a diagnosed right ankle disorder, he or she should offer an opinion as to whether his reported complaints of pain and limited range of motion of the ankle result in functional impairment. If so, the examiner is advised that he or she should accept that the Veteran has a disability related to the right ankle for the purposes of offering the opinion requested in (B). (B) For each right ankle disability, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that such had its onset in, or is otherwise related to, the Veteran’s military service, to include his documented July 1992 treatment for an ankle sprain, his report of an injury when he fell into a hole or off a truck, or running and marching. In offering such opinion, the examiner should consider the Veteran’s statements that he has experienced pain and limited range of motion in his right ankle since military service, and he did not have a pre- or post-service injury to the ankle. He or she is further advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to right ankle disorder after July 1992 or a lack of post-service medical records demonstrating a continuity of care. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Gardner Gaye, Associate Counsel