Citation Nr: 20045166 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 15-30 179 DATE: July 7, 2020 REMANDED Entitlement to service connection for a bilateral ankle disorder is remanded. Entitlement to service connection for a right leg disorder is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from July 2000 to October 2000, with additional periods of active and inactive duty for training in the Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2013 by a Department of Veterans Affairs (VA) Regional Office. In March 2019, the Board denied service connection for bilateral ankle and right leg disorders. Thereafter, the Veteran appealed such denial to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Secretary and the Veteran (the parties) entered into a Joint Motion for Partial Remand (JMPR) wherein they moved the Court to vacate and remand the March 2019 decision. In an Order issued the same month, the Court granted the JMPR and the case now returns for further appellate review. 1. Entitlement to service connection for a bilateral ankle disorder. In the March 2019 decision, the Board found that the Veteran’s current bilateral ankle disorder, diagnosed as bilateral ankle sprains at a June 2015 VA examination, was not etiologically related to her military service, to include several documented in-service ankle sprains, to include in August 2000, September 2002, and May 2007, based primarily on a lack of a current diagnosis noted at a March 2012 VA examination and an opinion that such disorder was less likely than not related to her military service rendered at a June 2015 VA examination. However, in the JMPR, the parties found that the Board had erred in failing to ensure that VA satisfied its duty to provide an adequate examination or opinion as the March 2012 and June 2015 VA examiners failed to properly consider the Veteran’s lay statements. Specifically, the parties noted that the March 2012 VA examiner observed only a single incident in which the Veteran rolled her left ankle in service in August 2000; however, her prior statement that she “had numerous injuries occur to both [her] ankles while [she] was on duty” was not addressed. Similarly, the parties found that the June 2015 VA examiner failed to consider the Veteran’s contemporaneous report that she rolls her ankles twice per month, which might indicate a sign of instability, and her June 2012 statement that she continued to have pain, discomfort, swelling, and pain radiating up her legs since 1999-2000. The parties further found that neither VA examiner addressed whether the Veteran’s in-service ankle sprains predisposed her to future ankle sprains. In this regard, while the June 2015 VA examiner noted ankle sprains in 2000, 2002, and 2007, he failed to discuss any ankle issues or residuals from 2001, 2003, or 2004 as evidenced by a December 2001 Physical Profile (DD Form 3349), May 2003 Physical Therapy Exercises, and March 2004 Physical Profile (DD Form 3349), respectively. In this regard, the parties found that such evidence, altogether, may have indicated that the Veteran had unresolved ankle issues, as opposed to isolated ankle incidents. Thus, the parties determined that a remand was necessary in order to obtain a new medical opinion that provides an adequate medical explanation that contemplates the Veteran’s history of ankle sprains and properly considers her lay statements. Therefore, in light of the foregoing determinations in the JMPR, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing such matters. 2. Entitlement to service connection for a right leg disorder. In the March 2019 decision, the Board found that, while the nature of the Veteran’s right leg disorder was unclear as she only reported that her ankle pain radiated up her leg, her service treatment records were negative for any complaints, treatment, or diagnosis of a right leg disorder and, further, to the extent that she related such to her ankle, she was not service-connected for a right ankle disorder. In reaching such determination, the Board found that VA’s duty to assist in providing an examination or opinion was not triggered as there as no evidence suggesting the existence of a current disability, an in-service incurrence, or an indication that such claimed disorder may be related to service or a service-connected disability. However, in the JMPR, the parties found that the Board erred in failing to provide the Veteran with a VA examination so as to determine the nature and etiology of her claimed right leg disorder. In this regard, they noted that she was competent to report observable symptoms, such as pain, and her in-service ankle injuries had previously been acknowledged. Thus, the criteria for providing an examination had been met. Therefore, based on the parties’ determination in the JMPR, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of the Veteran’s claimed right leg disorder. The matters are REMANDED for the following action: 1. Forward the record, to include a copy of this remand, to an appropriate VA clinician in order to obtain an opinion addressing the etiology of the Veteran’s bilateral ankle disorder. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the opinion. Following a review of the record, the examiner should offer an opinion as to whether it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral ankle disorder, currently diagnosed as bilateral ankle strains, had its onset in, or is otherwise related to her military service, to include her documented in-service ankle injuries in August 2000, September 2002, and May 2007. In rendering such opinion, the examiner must consider and discuss the Veteran’s lay statements of record regarding the onset of her bilateral ankle disorder and the continuity of symptomatology of such disorder, to include her statements that she “had numerous injuries occur to both [her] ankles while [she] was on duty,” rolls her ankles twice per month, and has continued to have pain, discomfort, swelling, and pain radiating up her legs since 1999-2000. The examiner should also address whether the Veteran’s in-service ankle sprains predisposed her to future ankle sprains. In this regard, he or she should consider the Veteran’s ankle issues or residuals documented in a December 2001 Physical Profile (DD Form 3349), May 2003 Physical Therapy Exercises, and March 2004 Physical Profile (DD Form 3349). A rationale for any opinion offered should be provided. 2. Afford the Veteran an appropriate VA examination to determine the nature and etiology of her right leg disorder. The record, to include a copy of this Remand, must be made available to by the examiner. Any indicated evaluations, studies, and tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Identify all current right leg disorders. If no such disorder is diagnosed, the examiner should address whether the Veteran’s reported right leg pain results in a functional impairment of earning capacity. (B) Regardless of whether a specific right leg disorder is diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right leg pain had its onset in, or is otherwise related to, her military service, to include her in-service ankle sprains? (B) Regardless of whether a specific right leg disorder is diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right leg pain is caused or aggravated by her bilateral ankle disorder? For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale should be provided for any opinion offered. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.