Citation Nr: 20006571 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 12-16 537A DATE: January 27, 2020 REMANDED Entitlement to service connection for a bilateral ankle disability, to include as secondary to service-connected bilateral pes planus, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to a bilateral ankle disability and as secondary to service-connected bilateral pes planus and service-connected left and right lower extremity shin splints, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1988 to February 2000. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 and September 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran appeared at a Video Conference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. In October 2017, the Veteran was informed that the VLJ who conducted the April 2015 hearing was no longer employed by the Board. The Veteran was offered a hearing with a VLJ who would decide her appeal and was scheduled for a hearing in April 2018, however, the Veteran, through her representative, cancelled the hearing. As such, the hearing request is considered to be withdrawn. In August 2015 and August 2018, the Board remanded the claims for further evidentiary development. Entitlement to service connection for a bilateral ankle disability and an acquired psychiatric disability and entitlement to a TDIU are remanded. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Initially, the Board notes that the Veteran was afforded VA examinations for her ankles and her acquired psychiatric claims in November 2015. Additionally, the Veteran submitted a March 2018 private opinion in support for her acquired psychiatric claim. The August 2018 Board decision concluded that the VA examinations and the private opinion were inadequate. As such, they will not be discussed further. The Veteran was afforded a VA examination for her ankles in February 2019. The examiner diagnosed a left ankle lateral collateral ligament sprain and did not diagnose a right ankle condition. The Veteran reported that she began to have left ankle problems after an in-service injury during an obstacle course in 1998. The Veteran added that she continued to experience ongoing left ankle pain after the in-service injury. No imaging studies of the ankles were performed. The examiner opined that the Veteran’s left ankle condition was less likely than not related to the Veteran’s service. The examiner’s rationale was that the Veteran’s service treatment records (STRs) were silent for any ankle complaints. The examiner also opined that there was “no gait or weight bearing disturbance of severity sufficient to implicate the [V]eteran’s pes planus as etiology for the current left ankle sprain.” This appears to be rationale for a conclusion that the ankle disability was not caused or aggravated by the service-connected bilateral pes planus; however, the opinion regarding causation is based on a statement that an ankle condition clearly and unmistakably preexisted service and was not aggravated beyond its natural progression by service. The Board finds this examination to be inadequate. First, a November 2015 VA examiner diagnosed degenerative arthritis in both ankles based on imaging studies. However, the February 2019 VA examiner failed to complete any imaging studies, did not diagnose a right ankle condition, or account for the Veteran’s prior diagnosis of bilateral ankle degenerative arthritis. Second, the examiner’s direct service connection opinion is based on an absence of medical evidence. The examiner failed to account for the Veteran’s lay statements that she continued to suffer from ankle issues after the in-service injury. Finally, the examiner’s opinion on secondary service connection is confusing as the opinion provided is for an inaccurate premise that the condition preexisted service. The rationale is also unclear, because while it indicates that there is not weight bearing disturbance of sufficient severity to implicate pes planus as the etiology, it does not explain why the increase in severity of left ankle pain with prolonged weight bearing and evidence of pain with weight bearing noted on the February 2019 examination would not be of sufficient severity. As such, the Board find the February 2019 VA examination to be inadequate. The Veteran was afforded a VA examination for her acquired psychiatric claim in February 2019. The examiner diagnosed the Veteran with major depressive disorder, recurrent, with anxious distress. The examiner opined that the Veteran’s disability was less likely than not due to her service. The examiner’s rationale was that the Veteran’s STRs were silent regarding any complaint, treatment, or diagnosis of a mental health condition. As to secondary service connection, the examiner provided a negative nexus opinion. The examiner’s rationale was that a February 2019 VA examination for pes planus did not show that pes planus caused functional impairment or pain. The Board finds this VA examination to be inadequate.   First, the August 2018 Board decision instructed the examiner to assume that the Veteran was diagnosed with bipolar disorder and major depression and asked the examiner to provider an etiology on both conditions. Here, the examiner only opined on the major depressive disorder; thus, the examiner failed to substantially comply with the August 2018 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure substantial compliance). Second, the examiner’s opinion on direct service connection is based solely on an absence of medical evidence. Finally, the examiner’s opinion on secondary service connection was premised on a pes planus VA examination that did not show pain or functional impairment. However, in November 2018 the Veteran indicated pes planus symptoms such as pain on manipulation. It does not appear that the February 2019 examiner considered these statements. As such, the Board finds the February 2019 VA examination to be inadequate. Lastly, the Board concludes that in this case the Veteran’s claim of entitlement to TDIU is inextricably intertwined with the service connection claims being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating 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). The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file VA treatment records from August 2019 to the present. 2. After completing the development above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral ankle disability. The examiner is asked to provide opinions on the following questions: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran had bilateral ankle arthritis within a year of her discharge from service? (b.) Is it at least as likely as not (a 50 percent or greater probability) that any bilateral ankle disability is related to an in-service injury, event, or disease, including an injury during an obstacle course? (c.) Is it at least as likely as not (a 50 percent or greater probability) that any bilateral ankle disability was caused by the Veteran’s service-connected bilateral pes planus? (d.) Is it at least as likely as not (a 50 percent or greater probability) that any bilateral ankle disability was aggravated (that is, any increase in severity beyond the natural progression of the condition including any incremental increase in disability) by the Veteran’s service-connected bilateral pes planus? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician 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.  3. After completing the development above, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of any acquired psychiatric disorder. The entire claims file should be made available to the examiner in conjunction with this request. All tests deemed necessary, including psychological testing, should be performed and all findings should be reported in detail. The examiner should also answer the following questions: (a.) Is it at least as likely as not (a 50 percent probability or greater) that any psychiatric disorder(s), to include bipolar disorder and major depressive disorder, began in service or is otherwise related to a disease, event or injury in service, including the physical problems the Veteran experienced during service and/or demotion in rank during service? (b.) Is it at least as likely as not (a 50 percent or greater probability) that any psychiatric disorder, to include bipolar disorder and major depressive disorder, was caused by the Veteran’s service-connected bilateral pes planus and/or left and right lower extremity shin splints? (c.) Is it at least as likely as not (a 50 percent or greater probability) that any psychiatric disorder, to include bipolar disorder and major depressive disorder, was aggravated (that is, any increase in severity beyond the natural progression of the condition including any incremental increase in disability) by the Veteran’s service-connected bilateral pes planus and/or left and right lower extremity shin splints? (d.) If the examiner in conjunction with the examination requested in item 2 concludes that it is at least as likely as not that the Veteran’s ankle disability is related to service or caused or aggravated by a service-connected disability, then opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any psychiatric disorder, to include bipolar disorder and major depressive disorder, was caused by the Veteran’s ankle disability? (e.) If the examiner in conjunction with the examination requested in item 2 concludes that the Veteran’s ankle disability is at least as likely as not related to service or caused or aggravated by a service-connected disability, then opine as to whether it is at least as likely as not that any psychiatric disorder, to include bipolar disorder and major depressive disorder, was aggravated (that is, any increase in severity beyond the natural progression of the condition including any incremental increase in disability) by the Veteran’s service-connected bilateral pes planus and/or left and right lower extremity shin splints? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination.   Additionally, the clinician 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. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Patel, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.