Citation Nr: 20053796 Decision Date: 08/13/20 Archive Date: 08/13/20 DOCKET NO. 15-12 496 DATE: August 13, 2020 ORDER Entitlement to service connection for a right ankle disability is REMANDED. REASONS FOR REMAND The Veteran served honorably in the United States Army from September 1986 to April 1993. Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claim prior to final adjudication. Entitlement to service connection for a right ankle disability is remanded. In September 2009, VA received correspondence from the Veteran’s representative. Therein, the Veteran initiated his claim for service connection for a right ankle disability. In September 2014, the Veteran’s service treatment records (STRs) were associated with the electronic record. Therein, on June 29, 1990, the Veteran complained of left and right ankle pain. The military provider identified enough pain to prevent normal range of motion and normal weight bearing. The military provider reported that, “discomfort during ROM. PT states also problem with ROM on (right) ankle.” In January 2015, VA received a medical report that was generated by Metro South MRI. Therein, a medical provider identified an “(a)rea of osseous contusion of the right calcaneal bone marrow in the region of the peroneal tubercle.” Within the clinical history, lateral right foot and ankle pain were noted. The provider also identified a complete tear of the right anterior talofibular ligament. In January 2015, the Veteran submitted a statement that addressed his right ankle disorder. Therein, the Veteran relayed that, “I have produced many documents from my military service record showing that road marches and carry an 80-poundpack on my back for 25 miles produced the left and right ankles to have tears and second degree sprains.” In December 2015, the Veteran supplied sworn testimony to the undersigned Veterans; Law Judge (VLJ). At that time, the Veteran testified that, “(i)n the military, I had third degree ankle sprains.” The Veteran testified that he did not seek treatment for his ankles until 2003. In July 2018, the Board addressed the Veteran’s claims for service connection for left and right ankle disabilities. At that time, the Board remanded the Veteran’s claims to the agency of original jurisdiction (AOJ) for additional development. In March 2019, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured ankle conditions. The VA examiner relayed diagnoses for bilateral lateral collateral ligament sprain (chronic / recurrent) and tendonitis. The VA examiner reported the following medical history: “Veteran injured his ankles while in service during his normal PT duties. He states he has chronic instability and the ankles roll easily. He has had many sprains over the years. Right is worse than the left. He states can't go up stairs easily. No ankle surgeries.” The VA examiner opined that, “(u)pon review of STRs, there is documentation of Veteran's complaints of left ankle pain in service 6/29/1990 and diagnosed with a sprain and tendonitis. This would establish a nexus in service for the claimed left ankle. Therefore, the claimed left ankle tendonitis and residuals of left ankle sprain is at least as likely as not incurred in or caused by his service.” The VA examiner opined that right ankle condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The VA examiner supplied the following rationale: “(u)pon review of STRs, there is documentation of Veteran's complaints of left ankle pain in service 6/29/1990 and diagnosed with a sprain and tendonitis. MEB exam 7/10/92 makes no reference of an ongoing ankle condition. General medical C+P exam 8/23/1993 mentions no ankle issues. Medical records submitted after separation notes right ankle sprain in 4/22/2004 and an MRI in 2008 shows a complete tear of the anterior talofibular ligament and peroneal tendon partial tear. This was over 10 years after separation and was non-service related on the basis of the injury in 2004. Based on this it would be difficult to associate the veterans claimed bilateral ankle condition to his service.” The VA examiner also opined that the right ankle condition was less likely than not (less than 50% probability) proximately due to, or the result of, the Veteran’s service-connected back disability. The VA examiner supplied the following rationale: “(t)he veteran is diagnosed with Right ankle sprain and bilateral ankle tendonitis. Veteran is SC for lumbar strain. The lower back (lumbar) supports body weight and allows trunk range of motion. The ankle is responsible for movement (plantar flexion, dorsiflexion, eversion and inversion) of the foot in relation to the lower leg during ambulation. The veteran’s right ankle conditions are related to injury which occurred after service as noted above in direct MO and therefore is not secondary to a back condition. In regard to the left ankle condition, the back and ankle to not share a functional relationship in which the back would be the cause of an ankle condition. Therefore, the veteran’s ankle conditions are less likely than not proximately due to the veterans service connected conditions.” The Board observes that the March 2019 VA examiner reported that the Veteran’s STRs noted a left ankle injury in June 1990. The March 2019 VA examiner did not address and/or consider the reported reduced right ankle ROM in June 1990. As the March 2019 VA examiner’s negative opinions were based on no right ankle issues reported and/or noted during the Veteran’s active duty service, the Board finds that it was based on an inaccurate factual premise, which renders the opinion inadequate. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). Accordingly, on remand, an addendum opinion regarding the etiology of the Veteran’s current right ankle disorder should be obtained. Barr v. Nicholson, 21 Vet. App. 303, 31 (2007). Consequently, the matter is REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. If available, an addendum examination report should be obtained from the March 2019 VA examiner. If the March 2019 VA examiner is unavailable, schedule the Veteran for a VA examination to determine the nature and etiology of any current right ankle disability. The claims file should be made available to, and be reviewed by, the examiner, and it should be confirmed that such records were reviewed. The examiner should: For any current right ankle disability identified, indicate whether the disability is at least as likely as not (a 50 percent probability or greater) related to the Veteran’s active duty service in the United States Army to include complaints of right ankle pain. An explanation for all opinions expressed must be provided. All opinions must take into account the Veteran’s own history and contentions. 2. The AOJ must ensure that the examination report requested above is in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 3. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim for service connection for a right ankle disability. If the benefit sought is not granted, the AOJ must then issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.