Citation Nr: 21003171 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 13-19 597 DATE: January 19, 2021 REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left foot disability, to include as secondary to a right ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1982 to June 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision. In October 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. The record reflects that you received a letter dated October 7, 2020 indicating that you could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, you do not have a pending hearing request. As noted above, you provided testimony in a hearing with a Veterans Law Judge in October 2017. I have considered the transcript of that hearing as evidence in in this matter. The Veteran’s claims for service connection were previously remanded by the Board in January 2020 and October 2017. Unfortunately, this appeal must be remanded for further development. 1. Entitlement to service connection for a right ankle disability is remanded. The Veteran’s claim for service connection was remanded to obtain his VA treatment records from September 2019 to the present and the etiological opinion cited by the Veteran’s VA treating physician in a May 2017 VA Internal Medicine Note. The Board’s remand directives instruct the Veteran’s claims file to be returned to the VA examiner that submitted the May 2018 etiological opinions or a suitable substitute to obtain an addendum etiological opinion. The examiner was directed to schedule the Veteran for a physical examination if it is required. At the outset, the etiological opinion cited by the Veteran’s VA treating physician in the May 2017 VA treatment record is not contained in his claims folder. There is no indication that the Agency of Original Jurisdiction (AOJ) attempted to obtain the etiological opinion. Therefore, a remand is required to allow VA to obtain the opinion. Regarding the etiological opinion, the Board’s specific directives instruct the examiner to: 1) discuss the precise nature of any right ankle disability found to be present; 2) discuss whether the diagnosis contained in the March 2018 VA Ankle Conditions Disability Benefits Questionnaire of right ankle sprain, 2018, refers to the Veteran’s in-service ankle sprain or recent sprain; 3) opine whether any identified right ankle disability at least as likely as not had its clinical onset during the Veteran’s active service, or is related to any aspect of service, including his September 1984 right ankle injury; and 3) consider and discuss relevant treatment records and lay statements from the Veteran. In response, the Veteran’s claims folder contains a January 2020 Medical Opinion Disability Benefits Questionnaire. However, for the following reasons, the Board finds that the medical opinion is inadequate as it was not responsive to the Board’s remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The medical opinion does not explicitly indicate the Veteran’s right ankle disabilities found to be present. The medical opinion also did not discuss whether the diagnosis of right ankle sprain, 2018, refers to the Veteran’s in-service ankle sprain or recent sprain that is documented in the March 2018 VA examination report. The medical opinion also fails to discuss the September 1984 service treatment records and June 1992 Report of Medical History that document the Veteran’s in-service ankle injury and related treatment. The medical opinion concludes, without references a particular right ankle disability, that the Veteran’s current complaints, many of which have not been medically evaluated, are far beyond the scope of the examination and are extremely unlikely caused by his in-service ankle injury. Further, the medical opinion provides that if the Veteran has electric shock type symptoms, he should have an appropriate medical evaluation with specialists in physical medicine rehabilitation and/or neurology and/or orthopedics. It is unclear why the examiner did not order a physical examination with all indicated tests and studies if this was the case to properly evaluate his right ankle disability. Therefore, a new examination and medical opinion are necessary to fully address the nature and etiology of the Veteran’s right ankle disability. 2. Entitlement to service connection for a left foot disability, to include as secondary to a right ankle disability is remanded. Similar to above, the Veteran’s claim for service connection was remanded, in part, to return his claims folder to the VA examiner that submitted the May 2018 etiological opinion or a suitable substitute to obtain an addendum etiological opinion. The examiner was directed to schedule the Veteran for a physical examination if it is required. Regarding the etiological opinion, the Board’s specific directives instruct the examiner to opine whether the Veteran’s left foot disability, including those noted previously, are proximately due to or aggravated beyond their natural progression by his right ankle disability; and consider his lay statements concerning the impact of his right ankle disability on his left foot. Subsequently, the Veteran’s claims folder contains a January 2020 Medical Opinion Disability Benefits Questionnaire. Again, the Board finds that the medical opinion is inadequate as it was not responsive to the Board’s remand directives. See Barr, 21 Vet. App. at 312. The medical opinion does not discuss the Veteran’s lay statements regarding the impact of his right ankle disability on his left foot. The medical opinion also fails to reference any of the previously documented left foot disabilities in concluding that his left foot disability most likely progressed less rapidly than it otherwise would have as a result of the reduced activity and is therefore unlikely to be secondary to or aggravated by his right ankle disability. Therefore, a new examination and medical opinion are necessary to fully address the nature and etiology of the Veteran’s left foot disability. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from December 2019 to the present. 2. Obtain the etiological opinion cited by the Veteran’s physician in a May 2017 VA Internal Medicine Note. The treatment record indicates that the completed form will be left with the team clerk, that the Veteran needs to sign a release of information, and that the form needs to be copied and sent for scanning. 3. After the above development is completed, schedule the Veteran for a VA examination of his right ankle. All indicated tests and studies must be completed, i.e., x-rays, EMG/NCS, etc. The examiner must review the claims file. The examiner must: (a.) Identify all current right ankle disabilities found to be present, including, but not limited to, sprain, any anterior tarsal tunnel syndrome, hypersensitivity to the right lateral ankle, right ankle instability, anterolateral tenderness of the right ankle, and old avulsive fracture fragment of the tibia. If the Veteran’s disability manifests in symptoms that cause functional impairment, specifically considering pain and a well-documented abnormal range of motion, then the examiner should consider them a “disability” for the purpose of providing the requested opinion below. The examiner must specifically discuss whether the diagnosis rendered in the diagnosis section of the March 2018 VA examination report of right ankle sprain, 2018, refers to the Veteran’s in-service right ankle sprain or a recent sprain incurred during the current appellate period. (b.) Opine whether any identified right ankle disability, including, but not limited to sprain, anterior tarsal tunnel syndrome, hypersensitivity to the right lateral ankle, right ankle instability, anterolateral tenderness of the right ankle, and old avulsive fracture fragment of the tibia, at least as likely as not (50 percent probability or greater) had its onset during active service or is related to any aspect of active service, specifically, his September 1984 right ankle injury. The examiner must consider and discuss: • The September 1984 service treatment records indicating that the Veteran twisted his ankle, presented with a swollen lateral (external) malleolus, was diagnosed with a sprained right ankle, treated with an ace bandage, crutches, posterior splint, and Norgesic, and presented four days post-injury and was diagnosed with a first or second-degree sprain; • The June 1992 Report of Medical History indicating that the Veteran had a history of foot trouble, described as trauma, right ankle, negative fracture, treated with splint and Norgesic, with full recovery, not clinically significant; • The Veteran’s lay statements that his service treatment records do not accurately reflect the severity of his in-service right ankle injury, and that he was in a number of casts for a significant period of time and his sprain should have been diagnosed as a fracture; • The Veteran’s lay statements that it took over six months for the pain to subside after the in-service right ankle injury and that he had recurrent right lateral ankle pain once every two months, with pain, and continued symptoms since, including right ankle “failure” that caused him to fall; and • The Veteran’s lay statements that his right ankle disability, to the extent that it caused right ankle damage, was managed by wearing tight military boots and that when we began wearing civilian shoes, his right ankle was unstable and would “fail.” If the examiner determines that it is less likely than not that any of the Veteran’s right ankle disabilities had their onset during his active service or is related to any aspect of active service, specifically, his September 1984 right ankle injury, the examiner should discuss what other factor(s) caused the right ankle disability.  A complete rationale must be provided for all opinions and conclusions reached.  4. Schedule the Veteran for a VA examination, or telehealth interview, review of the record, etc. if an in-person examination is not feasible, for any left foot disability. If a physical examination is conducted, all indicated tests and studies must be completed. The examiner must review the claims file. The examiner must: (a.) Identify all current left foot disabilities found to be present, including, but not limited to, mild hallux valgus deformity of the great toe with moderate flexion deformity of fourth and fifth toes, early spur formation in the plantar aspect of the calcaneus, and left naviculocuneiform posttraumatic degenerative joint disease. If the Veteran’s disability manifests in symptoms that cause functional impairment, specifically considering well-documented complaints of pain, then the examiner should consider them a “disability” for the purpose of providing the requested opinion below. (b.) Opine whether any identified left foot disability, including, but not limited to, mild hallux valgus deformity of the great toe with moderate flexion deformity of fourth and fifth toes, early spur formation in the plantar aspect of the calcaneus, and left naviculocuneiform posttraumatic degenerative joint disease is/are at least as likely as not (50 percent probability or greater) proximately due to his right ankle disability. (c.) Opine whether any identified left foot disability, including, but not limited to, mild hallux valgus deformity of the great toe with moderate flexion deformity of fourth and fifth toes, early spur formation in the plantar aspect of the calcaneus, and left naviculocuneiform posttraumatic degenerative joint disease is/are at least as likely as not (50 percent probability or greater) aggravated, i.e., worsened beyond its natural progression, by his right ankle disability. The examiner must consider and discuss the Veteran’s lay statements that his right ankle disability causes his right ankle to “fail” and he falls and he has injured his left foot due to such, and that his right ankle disability has caused him to alter his gait and such has resulted in a left foot disability. If the examiner determines that it is less likely than not that any of the Veteran’s left foot disabilities is/are less likely than not related to his right ankle disability, the examiner should discuss what other factor(s) caused the left foot disability.  A complete rationale must be provided for all opinions and conclusions reached.  P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.