Citation Nr: 21061466 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-51 889 DATE: October 4, 2021 REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for a left ankle condition is remanded. REASONS FOR REMAND The Veteran had active service from April 2004 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a July 2021 hearing before the Board of Veterans' Appeals (Board). The Board notes that the claims on appeal were initially denied in a September 2014 rating decision. The Veteran submitted an application to reopen the claims for service connection in June 2015, within 12 months of the denial. Accordingly, the Board finds that the September 2014 rating decision never became final, and the issues on appeal will be treated as having been continuously on appeal since the Veteran's original claim in March 2014. 1. Entitlement to service connection for TBI is remanded. The Veteran asserts that he experiences TBI residuals as a result of in-service head trauma. February 2014 VA treatment records reflect the Veteran being treated for TBI residuals. The Veteran reported multiple head traumas during service, including loss of consciousness, due to fights in service and due to a nearby explosion. In his September 2017 Form 9 statement, the Veteran mentioned that he had been treated at the VA's Livermore facility since 2012. He also mentioned relevant medical records from the VA facility in Livermore. During his July 2021 Board hearing, the Veteran testified under oath that he sustained multiple head traumas during service due to the fights he participated in. He sustained loss of consciousness on multiple occasions. However, he and other participants in the fights purposefully did not report any injuries or conditions resulting from the fights so that they would not be removed from their station. The Board notes that the Veteran has not been provided a VA examination for this condition. Accordingly, this claim must be remanded so that the Veteran can be afforded a VA examination to address the nature and etiology of the claimed condition. 2. Entitlement to service connection for a left ankle condition is remanded. The Veteran asserts that he experiences residuals of a left ankle injury that occurred during service and which have been chronic since leaving active service. February 2014 VA treatment records document a history of left foot 5th metatarsal fracture. During the Veteran's July 2015 VA examination for ankle conditions, the VA examiner found he was negative for any left ankle condition. The Veteran reported pain, swelling, and functional loss in his left ankle. The examiner did not discuss any history of left foot fracture in their opinion. In a September 2017 Form 9 statement, the Veteran asserted that his VA examination was inadequate. He stated that he was present with the examiner for less than 2 minutes. He felt that a more thorough examination was necessary to properly diagnose his left ankle. He also mentioned relevant medical records from the VA facility in Livermore. During the Veteran's July 2021 Board hearing, he testified that he broke his left ankle the day before leaving active service. When he sought treatment for the injury, he was told that he would have to remain in service while the injury was treated. The Veteran elected to leave active service as previously scheduled and sought civilian treatment for the injury. His ankle injury residuals limited his ability to run extended distances and caused pain after extended use. The evidence of record suggests that the Veteran may have a left ankle disability. The Board notes that where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). The Board finds a VA examination is necessary to evaluate the nature and etiology of left ankle pain. The matters are REMANDED for the following action: 1. Make efforts to obtain all outstanding medical records in accordance with the duties set forth in 38 C.F.R. § 3.159(c), especially any records associated with the Veteran's treatment at the VA facilities in Livermore and Martinez, California. 2. Schedule the Veteran for a VA medical examination to ascertain the current nature and etiology of any diagnosed cognitive disorder or TBI residuals. The Veteran's claims file must be reviewed by the examiner. The examiner should provide the following opinions for each diagnosed cognitive disorder: (a) Is a current cognitive disorder present during the period on appeal, even if currently resolved? If not, this must be explained in the context of the record. (b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's claimed TBI residuals, or cognitive disorder, if diagnosed, is etiologically related to his period of service? Please explain why or why not. All opinions must be supported by a thorough rationale. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 3. Schedule the Veteran for a VA examination to address the nature and etiology of any left ankle disability. The examiner must review the claims file and should note that review in the report. All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished. The examiner should diagnose all left ankle disabilities present and should state whether there is pain in the left ankle that results in a functional impairment of earning capacity. The examiner should provide a medical opinion concerning whether it is at least as likely as not (50 percent or greater probability) that any left ankle disability was incurred during service, or is due to any event, disease, or injury during service. The examiner should discuss the Veteran's lay statements and Board hearing testimony regarding the history and continuity of symptomatology. A rationale for any opinion expressed should be provided. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.