Citation Nr: 21000669 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-05 903 DATE: January 5, 2021 ORDER Entitlement to service connection for a bilateral foot disability is dismissed. Entitlement to service connection for a right knee disability is dismissed. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. FINDINGS OF FACT 1. A July 2020 rating decision granted entitlement to service connection for a bilateral foot disability, which constitutes a full grant of benefits under the law; and therefore, this issue is no longer in appellate status. 2. A July 2020 rating decision granted entitlement to service connection for a right knee disability, which constitutes a full grant of benefits under the law; and therefore, this issue is no longer in appellate status. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to service connection for a bilateral foot disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of entitlement to service connection for a right knee disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army and Navy with various periods of active duty between May 1977 to June 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2019. A transcript of the hearing has been associated with the record. Service Connection 1. Entitlement to service connection for a bilateral foot disability 2. Entitlement to service connection for a right knee disability The Board notes that during the period on appeal, specifically in a July 2020 rating decision, the Veteran was granted service connection for a bilateral foot disability and a right knee disability, which represents a full grant of benefits sought for both issues. Although the appeal period of this decision remains pending, the Veteran has not perfected an appeal regarding the assigned initial evaluation or effective date for this award; rather, he filed a claim for an increased evaluation for both disabilities, and those new claims are being developed by the AOJ. As such, the issues of are no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Accordingly, the Board does not have jurisdiction to review the appeal, and it is hereby dismissed. 38 C.F.R. § 20.101. REASONS FOR REMAND 1. Entitlement to service connection for a right ankle disability is remanded. 2. Entitlement to service connection for a left ankle disability is remanded. The Veteran’s claims for service connection for his right and left ankle disabilities were remanded in June 2019, based on a finding that an August 2013 VA medical opinion was incomplete for adjudicative purposes. Specifically, the examiner found that the Veteran did not have a current diagnosis of any ankle condition, while the Veteran’s private treatment records showed a diagnosis of bilateral achilles tendonitis. The Veteran was afforded a VA examination in September 2019. The examiner noted a diagnosis of bilateral achilles tendonitis; indicating that the Veteran was diagnosed with the condition in 1977 during service and given light duty. The examiner then opined that it was less likely than not that the Veteran’s bilateral ankle disability, to include achilles tendonitis, was incurred in or related to active service. As rationale, the examiner stated that she was unable to find any records from the Veteran’s time in service that addressed ankle conditions including tendonitis. Here, the Board notes that the opinion rendered is internally conflicting as the examiner notes a diagnosis of tendonitis during service, but then renders a negative etiological opinion based on absence of any ankle condition during service. For this reason, the September 2019 opinion is incomplete for adjudicative purposes. Additionally, even in the absence of an ankle condition to include tendonitis during service, the Board notes that an examiner may not rely on the absence of treatment for the claimed condition in the service medical records, standing alone, to justify an unfavorable nexus opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). For the reasons stated above, remand is warranted obtain an addendum medical opinion to address the etiology of the Veteran’s bilateral ankle condition. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed ankle condition. Access to the claims file must be made available to the VA examiner for review in conjunction with the examination. The examiner is asked to provide an opinion as to the following: a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ankle condition, to include achilles tendonitis, had its onset in service or is related to an event, injury or disease incurred in service. b.) Whether it is at least as likely as not (50% or greater probability) that the Veteran's right ankle condition, to include achilles tendonitis, had its onset in service or is related to an event, injury or disease incurred in service. The examiner is specifically asked to address (1) any evidence of a bilateral ankle condition during service, to include a 1977 diagnosis of tendonitis, as noted by the September 2019 examiner; and (2) a January 2014 private treatment record noting a diagnosis of bilateral achilles tendonitis. The examiner is reminded that the rationale for any opinion rendered must not be based solely on the absence of treatment for an ankle condition during service. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, 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.