Citation Nr: 18150994 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 15-27 554 DATE: November 16, 2018 REMANDED Entitlement to a rating in excess of 20 percent prior to March 14, 2014, and in excess of 10 percent thereafter, for left ankle sprain with traumatic arthritis (including the propriety of the reduction from 20 percent to 10 percent) is remanded. Entitlement to service connection for back disability (claimed as ankylosing spondylitis) is remanded. Entitlement to service connection for right ankle disability including as secondary to service-connected left ankle disability is remanded. Entitlement to service connection for right foot disability including as secondary to service-connected left ankle disability is remanded. Entitlement to service connection for perforated diverticulitis with abdominal abscess, to include under 38 U.S.C. § 1151, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1988 to May 1992. 1. Entitlement to a rating in excess of 20 percent prior to March 14, 2014, and in excess of 10 percent thereafter, for left ankle sprain with traumatic arthritis (including the propriety of the reduction from 20 percent to 10 percent) is remanded. 2. Entitlement to service connection for back disability (claimed as ankylosing spondylitis) is remanded. 3. Entitlement to service connection for right ankle disability including as secondary to service-connected left ankle disability is remanded. 4. Entitlement to service connection for right foot disability including as secondary to service-connected left ankle disability is remanded. 5. Entitlement to service connection for perforated diverticulitis with abdominal abscess, to include under 38 U.S.C. § 1151, is remanded. Remand of the Veteran’s left ankle increased rating claim is necessary in order to obtain an adequate VA examination. The June 2015 VA examiner estimated the Veteran was able to move his left ankle to 25 degrees plantar flexion and 10 degrees dorsiflexion based on estimates from viewing the Veteran’s movements as he exited the examination room (rather than using the goniometer). The Veteran reported that such estimates are inaccurate because he was walking with assistance from his ankle brace and his orthotic shoes so a true assessment of his situation could not be obtained. See September 2016 Board Hearing Tr., p. 39. Accordingly, remand is appropriate for a new VA examination to determine the current manifestations and severity of the Veteran’s left ankle disability. The Board notes that the June 2015 VA examiner reported ankle instability. The Regional Office should consider whether the Veteran’s left ankle should be rated under alternative diagnostic codes, and whether a separate rating for ankle instability is warranted. The Veteran seeks service connection for ankylosing spondylitis, asserting that this condition started in service or is related to service in Panama. Private physicians opined that the Veteran’s ankylosing spondylitis likely manifested in service or is related to service. See, e.g., June 2013 Private Treatment Letter; October 2014 Private Treatment Record. However, the opinions relied on the Veteran’s reports of onset of knee and back and widespread pain symptoms in service and failed to provide a sufficient rationale. Dr. Smith reported that the Veteran may have been in a geographical environment that resulted in infectious complication and reactive arthritis but did not opine as to the likelihood that such event occurred. A July 2015 VA examiner opined that the Veteran’s back disability is less likely than not related to service. However, it appears the VA examiner relied solely on the lack of documentation of complaints in service or immediately after service. The VA examiner did not adequately address the Veteran’s reports that his pain began in service or his allegation that service in Panama caused his ankylosing spondylitis. The VA examiner also did not address the Veteran’s contention that his back disability is related to his service-connected left ankle disability. In addition, the Veteran’s VA treatment records suggest a potential connection between the Veteran’s reports of joint pain and his service-connected psychiatric disability. Accordingly, remand is appropriate for further VA medical opinion. The Veteran also seeks service connection for right foot and right ankle disability, asserting such conditions were caused by his service-connected left ankle disability. A June 2015 VA examiner noted the Veteran reported that he was unable to move his ankle, and that strength testing and range of motion measurements were not able to be assessed. The VA examiner opined that no diagnosis was possible and that the etiology of the Veteran’s complaints was unclear. As the VA examiner did not opine as to whether the Veteran’s reported right ankle functional impairment is related to his left ankle disability, additional VA medical opinion is needed. The June 2015 VA examiner opined that the Veteran’s right foot disability is less likely than not due to the Veteran’s left ankle disability. The VA examiner explained that the Veteran’s diagnoses of plantar fasciitis and pes planus are bilateral, therefore indicating that there is no more severe pathology in the right foot versus the left foot that can be attributed to any abnormal weightbearing or overcompensation due to the Veteran’s service-connected left ankle disability. However, the VA examiner did not address the July 2011 private orthotist’s opinion that the Veteran was overcompensating for his left side resulting in right foot problems. In addition, the Veteran’s VA treatment records suggest a potential connection between the Veteran’s reports of pain and his service-connected psychiatric disability. Accordingly, remand is appropriate for further VA medical opinion. The Veteran also seeks service connection for diverticulitis, to include under 38 U.S.C. § 1151. A May 2014 VA examiner opined that there was no carelessness, negligence, lack of proper skill, error in judgment, or similar finding of fault on the part of the VA, and that additional disability was not the result of an event not reasonably foreseeable. The VA examiner explained that this was not a typical case of diverticulitis, as the Veteran presented for treatment on February 11, 2013, with predominantly urinary complaints. However, it is unclear if the VA examiner took into account the Veteran’s reports regarding bowel complaints over the years, his reports regarding his family history of diverticulitis, and the Veteran’s reports that he requested a lower gastrointestinal examination or a colonoscopy during the February 11, 2013 VA treatment visit. In addition, the Veteran asserts that his ankylosing spondylitis triggered or aggravated his diverticulitis. Accordingly, remand is appropriate for further VA medical opinion. While this matter is on remand, outstanding private and VA treatment records should be obtained, including VA treatment records from July 2015 to the present. The records show that the Veteran received VA contract care and that records were scanned into his VA medical file. The Regional Office should ensure that all relevant documents scanned into Vista Imaging are associated with the Veteran’s claims file. The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims. 2. Obtain additional VA treatment records from July 2015 to the present. Associate with the claims file all relevant documents scanned into Vista Imaging but not associated with the Veteran’s claims file. 3. After outstanding records are obtained, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ankle disability. The examiner should review the Veteran’s claims file. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the left ankle (expressed in degrees), to include on active and passive motion, and in weightbearing and non-weightbearing. Range of motion testing of the right ankle should also be accomplished, for comparison purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly so state and explain why. The examiner should estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and after repetitive use over time. If the examiner cannot provide the above-requested estimation without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner should indicate whether there is ankylosis of the ankle, and, if so, the extent of any such ankylosis. Further, the examiner should indicate whether there is any ankle deformity-specifically, abduction, adduction, inversion or eversion deformity. The examiner should indicate whether the Veteran has instability in the ankle, and, if so, provide an assessment of the severity of such instability (e.g., mild, moderate, severe). A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner should fully discuss why this is the case. 4. After obtaining any outstanding records, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should identify any current thoracolumbar spine disability the Veteran has presented during the claim period (from August 2013 to the present), including consideration of the Veteran’s ankylosing spondylitis diagnosis, or any other systemic or autoimmune disease, and any current right foot disability and right ankle disability the Veteran has presented during the claim period (from June 2013 to the present). For each disability, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder: (a) had an onset in service; (b) is otherwise related to an in-service injury, event, or disease; (c) is caused by or aggravated by his service-connected left ankle disability; (d) is caused by or aggravated by his service-connected psychiatric disability; or (e) is caused by or aggravated by his diverticulitis. For arthritis, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested to a compensable degree within a year of separation from service (by May 1993). For any right foot or right ankle disability separate from the Veteran’s back/ankylosing spondylitis/systemic disease disability, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the right foot or right ankle disability is caused by or aggravated by the Veteran’s back/ankylosing spondylitis/systemic disease disability. The examiner should consider all medical and lay evidence of record. The Veteran reports that he began experiencing low back pain, bilateral knee pain, and widespread muscle pain prior to discharge from service. The Veteran asserts that his ankylosing spondylitis had an onset in service, or is related to service in Panama. The Veteran’s service treatment records show treatment for right shoulder pain and stiff neck, and the Veteran filed a claim for bilateral shoulder disability months after separation from service. The Veteran reported that he did not always seek treatment in service because he was dealing with posttraumatic stress disorder, because he had a hard time admitting that he had a problem, and because he wanted to continue his military career. The Veteran asserts that his right foot and ankle disability and his back disability are related to his service-connected left ankle disability. The Veteran reported that he went up and down ladders, performed heavy lifting, and engaged in other labor-intensive duties during service with his injured left ankle. A January 2009 VA examination noted that the Veteran’s right ankle showed mild degenerative changes while his left ankle was normal. In a May 2010 Social Security Administration disability report, the Veteran reported walking with a limp. The Veteran also reported severe aches in his joints. A March 2011 VA examination noted the Veteran had a slight gait alteration favoring the left side. In a July 2011 letter, the Veteran’s private orthotist opined that the Veteran was overcompensating for his left side which resulted in problems, such as his ankles rolling and right foot problems. The private orthotist explained that this can cause problems up the legs and spine. In April 2012 VA treatment, the Veteran reported that his right foot symptoms were worse, and plantar fasciitis was diagnosed in the right foot. During the January 2015 DRO hearing, the Veteran testified that he has placed more pressure on his right side to compensate for his left ankle disability since service. He also reported that he experiences more pain in his right foot and ankle than in his left. VA treatment records show the Veteran reported constant pain in all his joints and the doctors believed such pain may be related to mental health issues. See, e.g., October 2009 VA Treatment Record. A June 2009 private treatment record shows a diagnosis of pain disorder associated with both psychological factors and a general medical condition. During the September 2016 Board hearing, the Veteran asserted that his diverticulitis triggered or aggravated his ankylosing spondylitis. He also asserted that ankylosing spondylitis can cause other conditions, such as plantar fasciitis. If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). A complete rationale should be given for all opinions and conclusions expressed. 5. After obtaining any outstanding records, ask the appropriate non-VA examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s diverticulitis disability: (a) had an onset in service; (b) is otherwise related to an in-service injury, event, or disease; or (c) is related to or aggravated by the Veteran’s back/ankylosing spondylitis/systemic disease disability. The examiner should also opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has an additional disability as a result of diverticulitis treatment provided by VA. If additional disability is shown, was such additional disability the result of, or caused by, a lack of proper care or negligent treatment on the part of VA caregivers? Alternatively, did any action or inaction by VA caregivers cause additional disability or constitute carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault? If so, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? If additional disability is shown, was the additional disability due to an event not reasonably foreseeable? In so opining, the examiner should consider all medical and lay evidence of record. The Veteran asserts that his ankylosing spondylitis triggered or aggravated his diverticulitis. The Veteran asserts that his VA primary care doctor should have diagnosed his diverticulitis earlier. The Veteran reported that his VA primary care doctor failed to listen to his bowel complaints over the years, failed to account for his family history, and instead attributed these complaints to his posttraumatic stress disorder. In a March 2013 statement, the Veteran reported that he has complained of lower abdominal symptoms including pain, diarrhea, and swelling, for years. He reported that he has told his VA treater many times in the past that his grandfather died of colon cancer and that other family members including his father and two uncles have diverticulitis. The Veteran reported that he requested a lower gastrointestinal examination or a colonoscopy during the February 11, 2013 VA treatment visit. A February 2013 VA treatment record notes the Veteran has a strong history for diverticulosis in his father who has required surgery and in several of his uncles on the maternal side. A February 2013 VA treatment record notes a colonoscopy was appropriate given the Veteran’s chronic diarrhea, family history of colon cancer, and diagnosis of ankylosing spondylitis. A complete rationale should be given for all opinions and conclusions expressed. 6. After the above development, and any other development deemed necessary, readjudicate the claims, including consideration of whether a separate rating is applicable for instability relating to the Veteran’s left ankle disability. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel