Citation Nr: 1808824 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-06 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right ankle sprain. 2. Entitlement to service connection for a right knee disorder, to include as secondary to a right ankle sprain. 3. Entitlement to service connection for infertility. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Hanson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1979 to September 1987. This appeal comes before the Board of Veterans' Appeals (Board) from December 2011 and January 2012 rating decisions by the St. Petersburg, Florida Regional Office (RO) and a November 2013 rating decision by the Louisville, Kentucky RO. Jurisdiction now lies with the St. Petersburg, Florida RO. In October 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Therefore, any future consideration of the Veteran's claim should take into account the existence of the electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary in order to ensure that due process is followed, that there is a complete record upon which to decide the Veteran's claim, and to ensure that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (c) (2017). Right Ankle The Veteran contends that his right ankle disability is related to service. In a May 1982 service treatment record, the Veteran complained of ankle pain and reported that his ankle comes out of place when he walks. He also stated that he believed it was hurting because he had been marching in a lot of parades. There was a notation that it was probable that a ligament was weakening. The Veteran was provided bandages and was ordered to consult with a physical therapist. In a June 1982 service treatment record, the Veteran complained of frequent inversion sprains and instability; the record also notes an impression of chronic right ankle sprain. In a July 1982 service treatment record, the Veteran reported a 75 percent improvement to his right ankle. The Veteran last underwent a VA examination for his right ankle disability in November 2011. The Veteran reported that he had an injury to his right ankle in service in 1982. The Veteran also reported that the pain never resolved and that he has constant pain in his ankle. The Veteran denied a history of interval injury, surgery, injection, or treatment. Range of motion testing revealed full plantar flexion and dorsiflexion with objective evidence of pain. More specifically, active ranges of motion were plantar flexion to 45 degrees or greater with evidence of painful motion beginning at 45 degrees and dorsiflexion to 20 degrees with evidence of painful motion beginning at 20 degrees. The examiner noted that there was objective evidence of pain on range of motion and that active range of motion on repetitive testing was unchanged from baseline values reported and no pain, fatigue, weakness, or incoordination was noted. There was also no functional loss or impairment of the right ankle. Localized tenderness or pain on palpation of the right ankle joints/soft tissue was noted. Muscle strength and joint stability testing was normal. Results showed no ankylosis. Diagnostic testing of the right ankle was also within normal limits. The examiner provided a diagnosis of a right ankle sprain, and the examiner opined that the right ankle sprain was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The rationale for the examiner's opinion was that the Veteran reported ankle pain once in service and did not seek further attention. Further, the examiner stated that there was no mention of a right ankle condition on the exit interview and no evidence to demonstrate the existence of chronicity of symptoms since discharge almost 30 years ago. In a January 2012 rating decision, service connection for a right ankle disability was initially denied as there was no objective medical evidence that this condition had its onset in service or was caused by or related to service. Further, the claim was denied because the medical opinion of record opined that the Veteran's condition was less likely than not the result of the right ankle sprain in service. Medical records from a VA Medical Center, dated November 2002 to December 2011, note treatment for the Veteran's right ankle. Progress notes following the November 2011 examination, dated in August 2012, December 2012, May 2012, August 2012, and May 2013 reveal that the Veteran was seen for ankle problems which continued to worsen. The Veteran was diagnosed with right ankle osteochondral lesion with early osteoarthritic changes. During his October 2017 video conference hearing, the Veteran testified that he did not have any injuries, limitations, or pain related to his right ankle prior to service. Instead, the Veteran contended that he sprained his ankle while playing sports in service and that it was aggravated by walking in military boots. He testified that immediately following the injury, he received treatment, including x-rays. He stated that he received follow-up treatment at least five times while in service, but did not immediately seek treatment following service because he self-medicated with drugs and alcohol. The Veteran first sought treatment at the VA in 2010 and is currently receiving treatment. The Veteran stated that he was not diagnosed with an ankle condition from VA, but that he received a formal diagnosis from his private doctor. The Veteran testified that his ankle condition had worsened since his November 2011 VA examination, and more specifically, that it worsened as he got older. He stated that when he puts pressure on it, he has pain on a scale of eight out of ten. He also endorsed additional symptomatology, to include giving way and instability, to include falling on stairs and his ankle collapsing while standing. He also contended that he walks differently, ambulates with a cane, uses an ankle brace, and compensates by leaning more to his left side. While the November 2011 VA examiner indicated that the Veteran was seen only once in service, as noted above, service treatment records show that the Veteran was seen on more than one occasion. Thus, the Board finds that another VA opinion is necessary. See Reonal v. Brown, 5 Vet.App. 458, 460 (1993). Right Knee The Veteran seeks entitlement to service connection for a right knee disorder, to include as secondary to a right ankle disorder. The Veteran first sought treatment at the VA in 2010; he is currently receiving treatment. In a progress note dated in May 2012, the Veteran stated that he believed that his knee discomfort was related to his ankle instability. At the October 2017 hearing, the Veteran testified that he did not have any knee problems or treatment to his knee prior to service. Instead, the Veteran testified that he was an athlete and played football and basketball without any knee problems. The Veteran further testified that he did not have any issues with his right knee while in service, but instead he solely had problems with his right ankle. The Veteran further testified that the wear and tear on his right ankle, which he contends is a result of service, caused wear and tear on his right knee. The Veteran stated that he currently uses a knee brace. At the hearing, the Veteran's representative requested that the record be held open for 60 days to allow the Veteran to submit a nexus opinion from his private doctor; the representative also noted that due to the Veteran's severe financial hardship, evidenced by his homelessness, a VA examination was preferred. To date, a private opinion has not been received. In a January 2012 rating decision, service connection for a right knee disability was initially denied as there was no objective medical evidence that this condition had its onset in service or was caused by service as the Veteran's service treatment records do not show complaints of, treatment for, or a diagnosis of a right knee condition. The Board notes that while there is no record of a right knee injury or treatment while in service to establish a claim of direct service connection, it is not the Veteran's contention that his knee is a direct result of active service. As noted above, further development is required as related to the Veteran's right ankle condition. The Board finds that the claim of entitlement to service connection for the Veteran's right knee condition is inextricably intertwined with the claim of entitlement to service connection for the right ankle condition. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Additionally, the January 2012 rating decision only addressed direct service connection; entitlement to secondary service connection was not addressed. As a result, the Board must remand the claim. The Board will also obtain a VA opinion that addresses the Veteran's theory of entitlement. Infertility The Veteran contends that his infertility was caused by adult onset chicken pox, which he contracted while in service. The Veteran contends that he first contracted chicken pox in 1983 while stationed in Germany. This fact is also confirmed in the Veteran's service treatment records. The Veteran testified that he did not have any "sexual problems" prior to service. The Veteran also testified that he was not diagnosed with having infertility while in service. The Veteran stated at a previous examination that he had been trying to get his girlfriend pregnant but that it did not result in a pregnancy. Further, he testified that he does not have any children and that he has difficulty achieving and maintaining an erection. The Veteran's representative requested that the record be held open for 60 days to submit additional medical evidence establishing a connection between the Veteran's claimed condition and service. No additional evidence was submitted. In a November 2013 rating decision, service connection for infertility was denied because it was noted that infertility is a symptom, rather than a diagnosis of a chronic condition. Additionally, no evidence of an underlying disability which could cause infertility was found in the Veteran's service treatment records. Furthermore, the claim was denied as there was no evidence of a chronic condition during service nor was there evidence of a current condition related to active military service. Outpatient records from a VA Medical Center show a diagnosis of erectile dysfunction, but there was no diagnosis or mention of infertility. In a May 2012 progress note, the Veteran stated that he was concerned about fertility. The physician suggested a semen analysis to evaluate for infertility. Subsequently, in June 2012 and August 2012, the Veteran presented for a semen analysis at a private laboratory. No interpretations of the results or opinion as to the nature and etiology of the findings were provided. The Board will obtain a VA opinion that addresses the Veteran's theory of entitlement. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran and his representative with appropriate notice, pursuant to the VCAA under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), that includes the requirements for establishing secondary service connection pursuant to 38 C.F.R. § 3.310, for his claim of entitlement to service connection for a right knee disorder secondary to right ankle sprain. 2. Provide the Veteran another opportunity to identify any pertinent treatment records. The RO/AMC should secure any necessary authorizations. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 3. Schedule the Veteran for a new VA examination to determine the nature and etiology of his right ankle condition and right knee condition. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should address the following: a) Identify all current disabilities of the right ankle and right knee as found on examination as well as any others that have been diagnosed during the appeal period. b) Opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any right ankle disability had its onset during active service or is related to any in-service disease, event, or injury to include treatment and complaints noted in May 1982, June 1982, and July 1982. In so opining, the examiner should address the likelihood that injuries such as those described by the Veteran and documented in the service treatment records could have caused the Veteran's current right ankle disorder; the examiner should indicate whether the pathology/disease process associated with the Veteran's right ankle is consistent with the mechanism of injury claimed by the Veteran. c) Opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any right knee disability is proximately due to OR aggravated by the right ankle disorder. If aggravation is found, then the examiner should quantify the degree of such aggravation, if possible. In rendering these opinions, the examiner must provide a supporting rationale. 4. Obtain a new VA examination that addresses the nature and etiology of the Veteran's claimed infertility. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should address the following: a) Indicate whether the medical evidence shows that the Veteran is infertile. b) Opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's infertility is causally related to the Veteran's service, to include adult onset chicken pox contracted in December 1983. In rendering these opinions, the examiner must provide a supporting rationale. 5. The AOJ must ensure that the required actions have been accomplished to the extent possible in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action must be undertaken before the claims file is returned to the Board. 6. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and representative with a supplemental statement of the case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON 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 (West 2014). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).