Citation Nr: 20060809 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 14-17 884 DATE: September 15, 2020 REMANDED Entitlement to service connection for a right ankle condition is remanded. Entitlement to an increased disability rating in excess of 20 percent for residuals of a left ankle injury is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1994 to December 1996. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of July 2013 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in July 2013. The RO issued a statement of the case (SOC) in April 2014 and the Veteran’s timely appeal to the Board followed in May 2014. A hearing was conducted before the undersigned VLJ in January 2018. A transcript of the hearing is of record. The Board subsequently remanded the Veteran’s case for further development, including an additional VA examination. See July 2018 Board Decision. The RO issued a supplemental statement of the case (SSOC) in April 2019. After reviewing the evidence of record, the Board now finds that the RO has not substantially complied with its remand directives, and an additional remand is therefore required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). 1. Entitlement to service connection for a right ankle condition. The Veteran asserts that he experiences symptoms of pain in his right ankle as a result of placing increased weight on that side so as to protect his left ankle. See Transcript at 4-6. In its previous remand, the Board directed that a VA examiner provide an opinion as to whether the Veteran has a right ankle condition and, if so, whether it is at least as likely as not due to his service-connected left ankle condition. See July 2018 Board Decision at 4-5. A VA examiner opined in April 2019 that it was less likely than not that the Veteran’s service-connected disabilities caused or aggravated a right ankle condition. In reaching this conclusion, the April 2019 examiner stated as follows: Available documentation is silent for treatment or diagnosis of a right ankle condition. Unable to make [a] formal diagnosis due to lack of objective evidence confirming diagnosis, testing[,] or treatment. Symptom frequency, intensity[,] and duration are per self-report only and not confirmed in the claims file…. The right ankle x-ray dated 04/01/2019 shows unremarkable. See April 2019 VA Examination Report at 13. This is only partially consistent with the evidence of record. While the Veteran’s most recent x-rays show “unremarkable” bone mineralization, his prior VA treatment records also document multiple complaints of right ankle pain and at least one diagnosis of bilateral degenerative joint disease. See id. at 10 (showing results of right ankle x-rays); cf. January 2018 Medical Treatment Records at 257 (documenting September 2014 request for right ankle brace to alleviate symptoms); see also id. at 332 (providing note of July 2013 that “now right ankle is starting to hurt from strain of putting more weight on it”); see also June 2013 Medical Treatment Records at 1 (providing note of May 2013 that “[right] ankle [is] still hurting”); see also February 2013 Medical Treatment Records at 26 (providing July 2011 note diagnosing “[degenerative joint disease], bilateral feet and ankles”). The Board notes that the Veteran has a separately service-connected condition of the right foot, which is rated as noncompensable from December 1996, and that x-rays have documented spurs and other abnormalities of that foot. See February 2018 Rating Codesheet at 2; see also April 2019 VA Examination Report at 10; see also March 2014 Medical Treatment Records at 1 (providing prior March 2013 x-ray results). A previous VA examination of March 2014 had also opined against diagnosing a separate right ankle condition, opining instead that “possible calcaneonavicular coalition… is a condition of the hind/midfoot and would likely have little bearing on the function of the tibiotalar joint.” See March 2014 VA Examination Report at 1-2. However, this prior VA examination does not address whether such a right foot condition might reasonably produce the symptoms of right ankle pain documented in the Veteran’s complaints. The Board notes that for rating purposes, pain alone can be a disability if it results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1367 (Fed. Cir. 2018). It is therefore possible that the Veteran’s symptoms of right ankle pain, if caused by his left ankle condition or right foot condition, may be a separate disability even if x-ray evidence does not confirm degenerative arthritis or another condition. Neither the prior March 2014 VA examination nor the April 2019 VA examination adequately address this possibility. 2. Entitlement to an increased disability rating in excess of 20 percent for residuals of a left ankle injury. The Veteran has a history of previous left ankle surgeries and is rated as 20 percent disabled for his left ankle condition from March 2012. See April 2019 VA Examination Report at 2; see also February 2018 Rating Codesheet at 1-2 (documenting temporary total ratings following prior surgeries). He is separately rated for a nerve condition and scars associated with his left ankle condition. See id. In addition to symptoms of pain, the Veteran asserts that he has “no lateral motion whatsoever” and “barely any up and down motion” of his left ankle. See Transcript at 10-11. In accordance with the Board’s prior remand directives, an updated VA examination was conducted in April 2019. However, the April 2019 VA examiner provided no opinion as to whether the degree of functional loss resulting from the Veteran’s left ankle condition was exacerbated by repeated use over time or by periodic flare-ups. See April 2019 VA Examination Report at 4-6. The examiner instead stated that “[there] is no basis for making such a determination without directly observing function under these conditions.” See id. The Court of Appeals for Veterans Claims (CAVC) has ruled that such a refusal to express an opinion as to flare-ups or repeated use over time renders an examination report inadequate: [The] Court’s case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from reliable sources, including the lay statements of veterans. Although the… VA examiner couched [the] refusal to offer an opinion regarding flares in broad terms, stating there is “no conceptual or empirical basis for making such a determination without directly observing function under these circumstances” … the apparent universality of this statement is contradicted by VA Clinician’s Guide, which specifically advises examiners to try to procure information necessary to render an opinion regarding flares from veterans. Aside from acknowledging the reality that, because of administrative constraints, examiners may not be examining veterans during flares, this guidance is a recognition that direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion… Before concluding that a requested opinion cannot be provided without resorting to speculation, an examiner must “do[ ] all that reasonably should be done to become informed about a case.” Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017) (internal citation omitted) (emphases in original). “[Once] the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one[.]” Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). These matters are therefore REMANDED for the following action: Schedule the Veteran for an examination with an appropriately-qualified examiner. The examiner shall review the claims file, including a copy of this remand, and provide the following opinions: 1. Is it at least as likely as not that the Veteran has a right ankle condition which results in functional impairment? The examiner should be aware that pain alone, if it results in functional impairment, can constitute a disability. If the examiner reaches adverse findings as to the Veteran’s credibility concerning symptoms of pain, the examiner shall clearly explain the basis for such findings. 2. Is it at least as likely as not that the Veteran has a right ankle condition that is due to or aggravated by other service-connected disabilities, including his left ankle and right foot conditions? 3. The examiner shall evaluate the degree of functional impairment imposed by the Veteran’s left ankle condition. If the Veteran asserts that his left ankle condition worsens during flare-ups or after repeated use over time, but the examination is not being conducted during a flare-up or after repeated use over time, the examiner shall estimate the degree to which a flare-up or repeated use over time exacerbates the Veteran’s functional impairment. The examiner shall base such an estimate on information procured from reliable sources, including but not limited to appropriate lay statements from the Veteran. If the examiner finds that sufficiently reliable information cannot be procured for such an estimate, the examiner shall clearly explain the basis for such inability, including the reasoning behind any adverse findings as to the Veteran’s credibility. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.