Citation Nr: 21000474 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 19-32 587 DATE: January 5, 2021 REMANDED Entitlement to service connection for a left ankle disability, including as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a right ankle disability, including as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active duty service from April 1973 to April 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2020 decision, the Board reopened the issue of entitlement to service connection for a left ankle disability and denied the issues of service connection for left and right ankle disabilities. The Veteran appealed to the US Court of Appeals for Veterans Claims (CAVC) and the parties agreed to a Joint Motion for Partial Remand (JMR). In an October 2020 Order, CAVC granted the JMR and vacated and remanded the issues of entitlement to service connection for right and left ankle disabilities. 1. Entitlement to service connection for a left ankle disability, including as secondary to service-connected disabilities, is remanded; 2. Entitlement to service connection for a right ankle disability, including as secondary to service-connected disabilities, is remanded. The Veteran asserts that his right and left ankle pain and/or disabilities were incurred in service and/or secondary to his service-connected disabilities. The Veteran’s service-treatment records reveal complaints of left ankle pain commencing in 1992. He was assessed with musculoskeletal pain probably secondary to overuse and left ankle sprain/strain in 1992 and 1993. In October 1993, he was diagnosed with residuals from a left ankle sprain with discomfort on running. The Veteran underwent a VA examination in January 2001, at which time the examiner indicated that it was likely that he suffered a left ankle sprain in the military but his examination that day was normal. The Veteran subsequently underwent a bone scan in February 2006, which was interpreted as showing probable mild degenerative changes in the left ankle. Subsequent treatment records commencing in August 2013 indicate degenerative joint disease of the ankle. The Veteran underwent a VA examination in September 2017, at which time the examiner concluded that the Veteran had no ankle disability. Prior x-rays were interpreted as negative and the radiology department could not perform x-rays at that time. The examiner concluded that his current subjective symptoms of ankle pain were not related to any specific musculoskeletal condition. After a review of the evidence, the Board agrees with the JMR and CAVC Order and finds that the September 2017 examination is insufficient to determine the present claim. In this regard, the examiner failed to acknowledge or discuss the February 2006 bone scan, which was interpreted as showing probable mild degenerative changes in the left ankle. Furthermore, pain alone can serve as a disability for VA compensation purposes if the pain results in functional impairment that affects earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (2018). However, the examiner did not provide an opinion as to whether his pain resulted in functional impairment that affects earning capacity. Lastly, the examiner did not provide an opinion as to whether his current ankle pain was aggravated by any of his service-connected musculoskeletal disabilities. Accordingly, the Board finds that a new VA examination is warranted in order to determine the nature and etiology of any left or right ankle pain and/or disabilities. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from October 2020 to the present. 2. After completion of #1, schedule the Veteran for a VA examination to determine the nature and etiology of any left and/or right ankle disabilities or pain. A copy of the claims file, including this remand, must be reviewed and such review should be noted in the examination report. The examiner should identify any left and/or right ankle disabilities found on examination and identified throughout the pendency of the claim and respond to the following: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s left and/or right ankle disabilities were incurred in or are otherwise related to his period of active service? B. If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s left and/or right ankle disability were caused by his service-connected disabilities, to include lumbar spine disability, left hip disability, right hip disability, cervical spine disability, left knee disability, and/or left foot disability? If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s left and/or right knee disability have been aggravated (any incremental increase in disability) by his service-connected disabilities, to include lumbar spine disability, left hip disability, right hip disability, cervical spine disability, left knee disability, and/or left foot disability? If aggravation is found, is there medical evidence created prior to the aggravation or between the aggravation and current level of disability that shows a baseline of right and/or left ankle disabilities prior to aggravation? C. If there is no diagnosed right and/or left ankle disability, is it at least as likely as not (probability of at least 50 percent) that any pain reaches the level of a functional impairment of earning capacity? Describe the impairment caused. If so, is it at least as likely as not (50 percent probability or more) that his pain was incurred in and/or etiologically related to his period of active service, caused by his service-connected disabilities, and/or aggravated by his service-connected disabilities? D. If arthritis is diagnosed, did it manifest to a compensable degree within one year of discharge from service? The examiner should provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.