Citation Nr: 21002863 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 18-38 898 DATE: January 19, 2021 REMANDED Service connection for a left ankle disability, to include as secondary to the service-connected chronic right ankle sprain with pain on motion, is remanded. REASONS FOR REMAND The Veteran had active service from November 1990 to November 1994. This matter returns to the Board following a May 2020 remand from the United States Court of Appeals for Veterans Claims (Court). At that time, the Court granted a Joint Motion for Remand (JMR) in which the parties agreed that the Board’s June 2019 denial of service connection for a left ankle disability failed to address adequately whether the Veteran’s left ankle disability was caused, or aggravated, by his service-connected right ankle condition. Further, the JMR also found that the Board erred when it denied the Veteran’s claim on a direct basis. The June 2019 Board decision and May 2020 Court remand are incorporated herein by reference. Service connection for a left ankle disability The Veteran contends that his left ankle disability is secondary to his service-connected chronic right ankle sprain with pain on motion. The Board finds that a remand of this matter is necessary to ensure sufficient evidentiary development of this contention prior to a final adjudication of the matter. The Board’s previous decision relied on an August 2017 VA medical examination opinion which stated that the Veteran’s left ankle disability and service-connected right ankle disability were “not medically related.” The opinion further stated that “medical literature does not support a medical relationship.” The Court found this rational inadequate as it did not provide a well-reasoned medical explanation for its conclusion. Likewise, the August 2017 VA examiner failed to provide a medical opinion and supportive rationale as to whether the service-connected right ankle disability aggravated the left ankle condition. Additionally, the examiner failed to explain how the cited medical literature specifically related to the Veteran’s claim. The Court also found that the previous Board decision erred in denying the Veteran’s claim on a direct basis. While the Board relied on the competent and probative evidence contained in the record, the record itself did not contain a medical opinion addressing whether the Veteran’s left ankle disability was caused by, or is otherwise related to, his active service. Significantly, and in this regard, the Board notes that the Veteran’s August 1994 military separation examination indicates a “tender bilateral ankle joint” and symptoms of “foot trouble.” However, the report was addressed in the Board’s prior decision. As such, and for the foregoing reasons, a remand is necessary in order to obtain an additional medical opinion concerning these issues. Accordingly, this matter is REMANDED for the following action: Accord the Veteran an examination by an appropriate clinician to determine the nature and etiology of any left ankle disability he may have. The examiner should review the Veteran’s electronic claims file in conjunction with this examination and should indicate such review in the examination report. Testing deemed necessary should be completed. Thereafter, the examiner is asked to: a. diagnose any disability of the Veteran’s left ankle found on current examination—or at any time during the current appeal (since the Veteran filed his claim in April 2017). b. For any such diagnosed left ankle disability, the examiner should opine whether it is at least as likely as not (50% probability or greater) that such diagnosed left ankle disability onset in, or is otherwise related to, his active service. In answering this question, the examiner must address the reports of “tender bilateral ankle joint” and “foot trouble” acknowledged at the Veteran’s August 1994 military separation examination. c. Also with regard to any diagnosed left ankle disability, the examiner should opine as to whether it is at least as likely as not (50% probability or greater) that such diagnosed left ankle disability was caused, or aggravated (worsened), by the service-connected chronic right ankle sprain with pain on motion. A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. R. Bobb, 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.