Citation Nr: 18153373 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-16 862 DATE: November 27, 2018 REMANDED Entitlement to service connection for a left ankle condition is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1974 to May 1994. This matter is on appeal from a December 2009 rating decision, which denied entitlement to service connection for a left ankle condition. Entitlement to service connection for a left ankle condition is remanded. The Board finds that a remand is necessary before a decision on the merits of the claim can be reached. The Veteran was afforded a VA examination for his left and right ankle in November 2014. The Veteran reported that he has pain in both ankles when standing too long and at the end of the day after standing. He also reported pain with squatting and excruciating pain when rising or when walking on uneven ground. A review of range of motion testing of the left ankle shows dorsiflexion to 20 degrees and plantar flexion to 35 degrees. The examiner reported that the Veteran exhibited pain on range of motion testing that did not contribute to a functional loss; however, she did not specify the degree at which pain began. In addition, the examiner reported that she was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time. The examiner diagnosed the Veteran with degenerative arthritis of the right ankle but provided no diagnosis for the left ankle. Despite being directed to provide a medical opinion as to whether the Veteran’s left ankle condition was at least as likely as not caused by various vehicle accidents during his military service, no opinion was provided. The examiner only provided a medical opinion for the Veteran’s right ankle condition. A February 2015 medical opinion addendum was requested for clarification on whether the Veteran had a left ankle condition and, if so, whether it was due to the Veteran’s service. The examiner provided the following response: “The veteran did not have a diagnosis for the left ankle. There was some lack of ROM but no pathology.” In April 2015, the Veteran submitted a VA Form 9 that included the following statement: “[T]he fact that I have to over-compensate with my left ankle for the degenerative damage in my right ankle has caused accelerated wear on my left ankle [that] makes my left ankle disability service by proxy via compensable consequence.” The November 2014 VA examination is inadequate for the following reasons. Although the November 2014 examiner was unable to render a diagnosis for the Veteran’s left ankle condition, she reported that the Veteran exhibited pain during range-of-motion testing and documented the Veteran’s report of pain with prolonged standing, rising, and walking on uneven surfaces. Even if the Veteran does not have a diagnosable left ankle disability, VA must consider whether the Veteran has functional impairment for which service connection may be granted. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018) (indicating that the term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment). Thus, a new opinion must be obtained on remand to assess whether the Veteran’s left ankle condition constitutes a functional impairment. The examiner should also offer an opinion as to whether it is at least as likely as not that the Veteran’s left ankle condition was proximately caused or aggravated (i.e., permanently worsened beyond natural progression) by his service-connected right ankle condition. If aggravation is found, the examiner should quantify the degree of such aggravation, if possible. While the examiner indicated that the Veteran exhibited pain during range of motion testing, she did not specify the degree at which pain began as required under VA case law. See, e.g., DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Furthermore, the examiner did not opine on whether the Veteran experiences likely functional loss with repeated use over time. If the examination does not take place during a flare-up or after repeated use over time, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran’s lay statements. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or repeated use over time will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no indication that the examiner made any attempt to ascertain adequate information from relevant sources to provide the requested opinion. Thus, the November 2014 VA examination of the Veteran’s left ankle condition was not adequate. In consideration of the inadequacies of the November 2014 VA examination, the Board finds that remand is warranted for a new VA examination to ascertain the etiology and current severity of the Veteran’s left ankle condition. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of any left ankle condition. To the best of their ability, the examiner should provide a medical opinion regarding whether pain, weakness, fatigability or incoordination significantly limit functional ability of the Veteran’s left ankle with repeated use over time or during flare ups throughout the pendency of the appeal. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. The claims folder should be provided to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. The examiner should provide opinions on the following: (a.) Identify any current left ankle disability. If no such disability is identified, the examiner must indicate whether the Veteran’s reported left ankle pain causes any functional impairment. (b.) For any left ankle disability diagnosed, or if it is determined the Veteran’s left ankle pain causes functional impairment, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disability/functional impairment is etiologically related to active service. 5. The examiner must provide a robust rationale for the opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 6. Once the above-requested development has been completed, the claim must be readjudicated. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on these claims for benefits, and be given an opportunity to respond to the SSOC. The case must then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page)   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. §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Moore, Associate Counsel