Citation Nr: 20030366 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 07-20 050 DATE: April 30, 2020 REMANDED Entitlement to service connection for a right ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1965 to June 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2006, June 2006, and October 2006 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The rating decisions, in pertinent part, declined to reopen a claim for service connection for a right ankle disability on the basis that new and material evidence had not been received. In March 2009, the Board reopened the issue and remanded it to the AOJ eight times: March 2009, March 2011, August 2012, September 2013, June 2016, September 2017, December 2017, and December 2018. In September 2013, the Board denied the claim. The Veteran appealed the denial to the U. S. Court of Appeals for Veterans Claims (Court), and in May 2017, the Court granted the parties’ Joint Motion for Remand (JMR), ordering the Board to determine whether the Veteran’s statements regarding an additional in-service injury to his right ankle were credible and if the Board found him credible, determine whether the medical evidence of record was sufficient; or whether another medical opinion was warranted to address the question of whether the Veteran’s current right ankle disability was causally related to having been beaten while confined in the stockades. The Board’s September 2013 denial was then vacated, and the matter remanded to the Board for development consistent with the JMR. In December 2018, the Board again denied the claim, and the Veteran appealed the denial to Court. In November 2019, the Court granted the parties’ JMR and vacated the Board’s December 2018 denial. The issue has been remanded to the Board for development consistent with the JMR. The JMR specifically instructed, “…remand is required to provide Appellant with a new examination that comports with the Board’s remand directives.” Therefore remand is required. Entitlement to service connection for a right ankle disability is remanded. The Veteran contends that in July 1965, he incurred a sprain to the right ankle while in service. He also avers that he sustained an additional in-service injury to the ankle while confined in a stockade from October 1965 to May 1966. During the stockade, an uprising occurred, and he was beaten and kicked while restoring order from a fight. He reported receiving treatment for his injuries. His service treatment records (STRs) show a July 1965 notation of a sprained right ankle, for which the Veteran was treated with an ace bandage, warm soaks, and medication. The evidence of record shows an April 1966 “Statement of Disciplinary Action,” noting that the Veteran was verbally reprimanded for the offense of “fighting” in January 1966. The Veteran’s post-service treatment records, from a Florida correctional facility, dated in August 1983, June 1984, and May 1985 reveal findings of normal right foot, ankle, and normal lower extremities. VA treatment records dated in May 2002, indicate that the Veteran’s right ankle was not deformed, and X-ray findings reveal evidence of minimal spurring. The records also show that on several occasions in 2003 and 2004, the Veteran was treated for ankle pain and had undergone physical therapy. He was fitted for a supportive ankle brace. A March 2006 VA examination report notes a diagnosis of degenerative joint disease of the right ankle. VA treatment records also show that the Veteran sprained his right ankle again in January 2009, wore a support brace, and had physical therapy sessions in May 2010. Notes dated in December 2014, show a diagnosis of osteoarthritis of the right ankle. Treatment notes dated in June 2015 indicate the Veteran’s his wife’s statement that his ankles and knees were very weak and caused him to fall in the home. Treatment records of that same month reflect the Veteran’s weak ankles and his slow ambulation with the assistance of a cane. In support of his claim, the Veteran in October 2013, provided a report from his treating physician, R.J.E., MD., who stated that he had been treating the Veteran for over eight years. He also reported that the Veteran related a history of having sustained injuries to his right ankle in basic training in 1965, and additional injuries to his right ankle at Fort McPherson, Georgia, while on active duty. As noted above, this matter was remanded twice by the Court. Most recently, in November 2019, the Court found that the January 2018 VA examination failed to substantially comply with the directives of the December 2017 Board remand. Accordingly, the matter is REMANDED for the following action: 1. Provide the Veteran’s claim file to a qualified clinician so that an opinion may be provided addressing the etiology of all current disability underlying his current complaints of right ankle pain. The entire claims file and a copy of this remand must be made available to the examiner for review. A physical examination of the Veteran or telehealth examination is only required if deemed necessary by the clinician. Although an independent review of the claims file is required, the Board calls the clinician’s attention to: a. July 1965 STR noting a sprained right ankle with a bandage, warm soaks, and medication prescribed. b. April 1966 “Statement of Disciplinary Action,” wherein the Veteran was verbally reprimanded for the offense of “fighting” in January 1966. c. September 2001 statement from the Veteran that during incarceration in the stockade, he was beaten by officials, and as a result, suffered injuries to his right ankle. d. April 2009 statement by the Veteran of his in-service right ankle knee injury and the continuity of symptomology. e. The January 31, 2018 private medical record from Gris Radiology that was identified by the JMR. The examiner must then provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right ankle disability began during active service, or is related to an incident of service; if arthritis is diagnosed whether it was within one year of service. The examiner must specifically address: a. The in-service right ankle sprain in July 1965. b. The Veteran’s credible report of a right ankle injury that occurred in an uprising during his confinement from October 1965 to May 1966 in the stockade. c. The Veteran’s account of continuing symptoms of right ankle pain since service. 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. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such a conclusion. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.