Citation Nr: 20060440 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 20-29 333 DATE: September 14, 2020 REMANDED Entitlement to service connection for a left ankle disability is remanded. REASONS FOR REMAND The Veteran had active service from March 1955 to January 1958. This matter comes to the Board of Veterans’ Appeals (Board) on an appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, the Agency of Original Jurisdiction (AOJ). In the rating decision, the AOJ denied service connection for left ankle arthritis. This matter was previously before the Board in June 2020, at which time it was remanded for the issuance of a statement of the case (SOC). 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). In July 2020, following de novo review by the AOJ, a Decision Review Officer (DRO) issued a Statement of the Case (SOC) continuing the denial of service connection for left ankle arthritis. The Veteran filed a VA Form 9 substantive appeal to the Board in August 2020. As such, the Veteran’s appeal is now before the Board. 1. Entitlement to service connection for a left ankle disability is remanded. While further delay is regrettable, for the reasons discussed below, the Board concludes that a remand is necessary to determine the nature and etiology of the Veteran’s claimed left ankle disability. Service treatment records indicate that on April 23, 1955, the Veteran presented to the infirmary with a swollen left ankle, although he denied experiencing any trauma. While x-ray testing was negative for bony abnormalities, “arthritis of the left ankle, etiology unknown” was diagnosed. Subsequent service treatment records do not indicate any further complaints or treatment regarding the left ankle, and his separation examination did not indicate symptoms or complaints of a left ankle disorder. In July 2012, the Veteran’s private podiatrist provided a statement that the Veteran had been a patient since December 2004. In 2009, the Veteran reported increasing pain and disability in his left foot and ankle. The podiatrist noted swelling and weakness and a progressive reduction in arch height. The podiatrist noted tendon weakness in the Veteran’s left ankle led to the collapse of his arch and that he created a custom brace for him. The podiatrist stated that the tendon weakness is a progressive injury caused by accumulated stress over time and that it was possibly related to the Veteran’s military service. Treatment records from 2004 to 2009 were submitted in May 2014. Treatment notes indicated swelling, soreness, and tenderness of the left ankle and heel when walking, reduced arch height, and collapse of the medial longitudinal arch, and difficulty climbing stairs. The Veteran was diagnosed with tibialis posterior tendon dysfunction and edema of the left ankle. The Veteran was afforded a VA examination in July 2013. The Veteran reported current pain and swelling. He stated that his left ankle was incurred during service, resulting from frequent marches and jumping. Current x-ray testing did not reveal arthritis, chronic changes, or calcifications, and thus, the examiner “assumed” that the April 1955 in-service diagnosis of arthritis was in error. The examiner stated that the Veteran’s in-service left ankle complaint resolved without any residuals as the records indicated that the swelling and pain subsided and it was not until 2009, more than 50 years after military discharge, that the Veteran began complaining of left foot/ankle swelling and weakness. Aside from bilateral edema, the examiner indicated an essentially normal orthopedic ankle examination. The examiner found it was less likely as not that the Veteran’s left ankle disorder was related to military service. The Board finds that a remand is necessary for an examination to clarify a current diagnosis of the Veteran’s claimed left ankle disability and to determine the nature and etiology of any such disability. The 2013 examiner ruled out a diagnosis of left ankle arthritis, but did not offer an opinion concerning whether the functional impairment stemming from the Veteran’s left ankle pain could fulfill the requirement of a "disability" as used in 38 U.S.C. § 1110. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Further, the examiner also did not comment on the nature and/or etiology of the prior diagnosis of tibialis posterior tendon dysfunction offered by the Veteran’s podiatrist, to include completion of magnetic resonance imagining (MRI) testing to confirm such. To this point, the Board notes that while the podiatrist’s statement was in the record at the time of the 2013 examination, the podiatrist’s treatment records were not submitted until 2014 and were therefore unavailable at the time of the 2013 examination. In light of above, the Board concludes that a remand is necessary to ensure that VA fulfills its duty to assist the Veteran in substantiating his appeal. The matters are REMANDED for the following action: 1. Obtain and associate with the file all updated records of VA treatment. 2. Contact the Veteran and request that he complete a release for any post-service private treatment records that are outstanding and pertinent to the issue remanded by the Board. The AOJ should then attempt to obtain the records identified by the Veteran. If any records requested are not obtained, notify the Veteran pursuant to 38 C.F.R. § 3.159 (e). 3. Schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his current left ankle disability. The examiner must review the claims file, including this remand. All necessary tests and studies should be conducted, to include MRI testing of the Veteran’s left ankle. The examiner should provide the following opinions: a. Identify all left ankle disabilities present during the pendency of the Veteran’s appeal (since January 11, 2012). *In addressing the above, the examiner must confirm or rule out the diagnosis of tibialis posterior tendon dysfunction, identified within the Veteran’s private treatment records. b. For any disability identified in part (a), provide an opinion concerning whether such is at least as likely as not (50 percent or greater probability) caused by or aggravated by the Veteran’s active duty. c. If the Veteran’s left ankle pain is not found to be a manifestation of any disability, the examiner should describe any functional impairment resulting from that pain. If functional impairment due to left ankle pain is described, the examiner should provide an opinion whether it is at least as likely as not caused by or aggravated by his active service. A complete rationale for all opinions offered must be provided. The examiner should specifically address the podiatrist’s statement and treatment notes, and the Veteran’s lay statements. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must readjudicate the Veteran's appeal in light of any additional evidence added to the record. If any benefit remains denied, the Veteran and his private attorney should be afforded a copy of the readjudication and the opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.