Citation Nr: 20045366 Decision Date: 07/08/20 Archive Date: 07/08/20 DOCKET NO. 15-31 848 DATE: July 8, 2020 REMANDED Entitlement to a compensable rating for residuals of left ankle ligament strains is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to a left ankle disorder or left os calcis, is remanded. Entitlement to a rating of total disability due to individual unemployability based upon service-connected disabilities (TDIU) is remanded. Entitlement to special monthly compensation, to include based on loss of use of left foot, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1974 to October 1976. These matters come before the Board of Veterans’ Affairs (Board) on appeal of a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Newington, Connecticut. By way of background, the Veteran’s claims were previously remanded in October 2018, so that evidence not previously reviewed by the Agency of Original Jurisdiction (AOJ) could be reviewed in the first instance. See Board Remand (Oct. 2018); 38 C.F.R. §§ 19.37, 20.1304. The Veteran was issued a Supplemental Statement of the Case (SSOC) in April 2020, and the Board accordingly reasserts jurisdiction of the Veteran’s claims. 1. Entitlement to a compensable rating for residuals of left ankle ligament strains is remanded. The Veteran’s left ankle was last examined in May 2013. Since this examination, evidence has been associated with the file to suggest that his symptomatology may have worsened, in that the Veteran has started using an Arizone brace since December 2019. Meanwhile, the Board notes that in addition to a noncompensable rating under Diagnostic Code 5271, the Veteran is also in receipt of a 20 percent rating for service-connected residuals of a left os calcis injury that was formerly rated under Diagnostic Code 5271, but is now rated under Diagnostic Code 5284 instead. 38 C.F.R. § 4.71a. Finally, the Board notes that whereas previous discussion of the Veteran’s left ankle injuries appears to be limited to the June 1976 os calcis injury and a 1987 crush injury, there is also evidence of a May 1975 baseball injury. The Board ultimately concludes that an updated examination is required to fully assess and adjudicate the Veteran’s claim for further disability compensation for his service-connected left ankle disability. See Weggerman v. Brown, 5 Vet. App. 281 (1993); Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to service connection for a right knee disorder, to include as secondary to a left ankle disorder or left os calcis, is remanded. A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Board is in receipt of the Veteran’s general contention that his right knee disorder is attributed to his overcompensating gait caused by his left ankle disorder. See C&P Exam ( May 2013 ). As mentioned above, the previous examination reports do not address the relevance or lack thereof of the baseball injury. Because the May 2013 examiner did not address this finding in the service treatment records, and because the examiner instead attributed the Veteran’s right knee pain as strictly secondary to the 1987 foot injury, see id. at “ Rationale,” the Board determines that a remand is warranted for an addendum opinion or an updated VA examination. McLendon v. Nicholson, supra. 3. Entitlement to a TDIU based upon service-connected disabilities is remanded. 4. Entitlement to SMC, to include based on loss of use of left foot, is remanded. The Veteran’s claims for additional compensation based on TDIU and SMC are inextricably intertwined with the now-remanded claims for increased rating for the left ankle and service connection for the right knee. Further action on these claims must therefore be deferred. The matters are REMANDED for the following action: 1. The Veteran and his representative should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include any VA treatment records, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford them an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. VA medical records as of April 10, 2020 appear to be associated with the claims file, but no subsequent records after that date are of record. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the receipt of any outstanding records, schedule the Veteran for all appropriate VA examinations to determine the current nature and severity of his service-connected left ankle disability, including but not limited to noncompensable residuals of strained ligaments and os calcis (currently rated at 20 percent). Whether the Veteran may be required to submit to in-person examinations for any of the above is left to the discretion of the examiner. The record, including a complete copy of this remand, must be made available for review in connection with the examination, and all indicated tests should be performed. All necessary tests and studies should be conducted. A complete rationale for the examiner’s opinions should be provided, citing to specific evidence of record, as necessary. 3. After the Veteran has undergone all updated VA examinations as to the above-mentioned disorders for which he is already service connected and following the receipt of outstanding treatment records, the AOJ should schedule a VA examination of the Veteran to confirm specific diagnoses and to determine the etiology of the Veteran’s claimed right knee disorder. A complete copy of the claims file, to include this remand, the Veteran’s complete service treatment records, and the Veteran’s complete medical treatment records, must be made available to the examiner. The need for a physical examination is left to the discretion of the examiner. If the examiner should not diagnose arthritis of the right knee, then the Board requests specific reconciliation between such a negative finding and a 2003 diagnosis as reflected in a 2013 VA examination. The examiner is asked to respond to the following question for each right knee disorder diagnosed, including but not limited to arthritis: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s current right knee disorder had onset in service, is otherwise related to his active duty service or is caused or aggravated by his left ankle disorder (to include os calcis and residuals of strained ligaments)? The examiner should specifically address the Veteran’s contention that his right knee disorder is caused by abnormal gait that compensates for his left ankle disorder. The examiner should also fully address the significance or lack thereof of a May 1975 baseball injury, a June 1975 os calcis fracture, and a 1987 post-service foot injury. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, 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). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page)   4. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated, including the inextricably intertwined issues of entitlement to TDIU and SMC. If the benefits sought on appeal are denied, in whole or in part, the Veteran should be provided with a supplemental statement of the case (“SSOC”) and afforded the appropriate opportunity to respond. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.