Citation Nr: 21001598 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-09 645 DATE: January 11, 2021 REMANDED Entitlement to service connection for a bilateral ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2008 to September 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ); a copy of the hearing transcript is of record. 1. Entitlement to service connection for a bilateral ankle disability is remanded. In August 2019, the Board remanded the appeal for further development. The remand directed, among other things, that the Veteran be afforded a VA examination to determine the nature and etiology of his current bilateral ankle disability. The Veteran contends that he injured both ankles while serving on active duty. He testified at his February 2019 hearing that during the last six months of his active duty he began to notice that his ankles started to bother him, specifically swelling and pain concentrated on the inside of his lower ankles. He stated that the pain became particularly noticeable as a result of long runs and long periods on his feet during 24-hour shifts as a correctional specialist. This is the time period where he reported first seeking treatment for his ankles. At his initial post-service VA treatment consultation, in April 2015, the Veteran sought treatment for bilateral inner ankle pain that he reported had been going on for at least the prior two years, which would indicate onset during the last year of his active service. The Veteran also indicated that the ankle problem was first noted earlier in service, but that he was not particularly bothered by his ankles at the time. At a May 2015 VA podiatry consult, the Veteran reported bilateral feet and ankle pain that had been on and off for the past four or five years but had only gotten worse in the last two years. The Veteran denied any recent trauma. A February 2019 buddy statement, submitted by a sergeant who had served with the Veteran, noted that in the Veteran’s last year of service his feet and ankles gave him a lot of problems. The requested ankle VA examination was provided in February 2020. The VA examiner opined that the Veteran’s bilateral ankle disability, diagnosed as chronic/recurrent bilateral collateral ligament sprains, was less likely as not incurred in or caused by military service. The rationale relied entirely on the following observation: “[i]n review of the available service treatment records (STRs), I was unable to locate any documentation showing bilateral ankle pain, injury or chronicity of ankle complaints.” The rationale did not, however, reflect consideration of the lay evidence provided by the Veteran and provided in the buddy statement. A medical opinion that relies solely on a lack of evidence in medical records to provide a negative opinion is inadequate; an examiner must take into account a veteran’s reports of injuries and symptoms. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). For this reason, an addendum opinion is required. In addition, the August 2019 Board remand expanded the Veteran’s claim to include a bilateral foot disability, and he was afforded a separate VA examination, in September 2020, to determine the nature and etiology of his bilateral foot disability. A different VA examiner noted an entrance exam diagnosis of asymptomatic bilateral pes planus and opined that the preexisting pes planus was as likely as not aggravated beyond its natural progression by the Veteran’s active service, as indicated by three post-service surgical interventions. Correspondingly, a September 2020 rating decision granted the Veteran service connection for bilateral pes planus. At the Veteran’s September 2020 foot VA examination, the VA examiner relied on the April 2015 VA treatment record reporting the Veteran’s complaint of ankle pain dating back to service in order to place the onset of the Veteran’s pes planus pain and symptoms during his active service. Further, at his February 2019 hearing, the Veteran testified that he noticed the pain and swelling in both his ankles and feet areas during service. He noted that his ankles would swell when he was on his feet and pain was concentrated on the inside of his lower ankles. These symptoms continued after service, but the swelling in his ankles is not as bad as it used to be since the three surgical interventions to treat his pes planus. Taken together, these instances in the Veteran’s record reasonably raise a possibility that the Veteran’s ankle disability may be related to his now service-connected pes planus disability. The theory of secondary service connection has not been previously considered by a VA examiner. Therefore, the addendum opinion is also needed to consider the secondary service connection theory reasonably raised by the record. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s bilateral ankle disability. The examiner must review the claims file, and a copy of this Remand, in conjunction with authoring the opinion. For each currently diagnosed bilateral ankle disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the bilateral ankle disability: (a) was incurred in, or otherwise related to, the Veteran’s active service; (b) proximately due to the Veteran’s service-connected bilateral pes planus; or (c) aggravated beyond its natural progression by the Veteran’s service-connected bilateral pes planus. A complete rationale must be provided for the opinions rendered. The examiner is advised that the Veteran is competent to report his symptoms and history. Thus, in providing these opinions and rationales, the examiner should consider the Veteran’s competent testimony that his ankles began to swell and cause him pain during active duty and that his symptoms have not been as bad since the surgeries to treat his pes planus. The examiner should also discuss whether the Veteran’s current clinical presentation is consistent with the nature of the in-service symptoms reportedly experienced and his subsequent symptoms/clinical history. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Caban, 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.