Citation Nr: 21061602
Decision Date: 10/04/21	Archive Date: 10/04/21

DOCKET NO. 14-04 215
DATE: October 4, 2021

REMANDED

The claim for service connection for a right ankle disability is remanded.

The claim for service connection for a left ankle disability is remanded.

The claim for a rating in excess of 10 percent for a left knee disability, to include consideration of a temporary total rating, is remanded.

A rating in excess of 10 percent for a right knee disability, to include consideration of a temporary total rating, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1997 to February 1998 and from June 2001 to April 2003.  The Veteran testified before the undersigned Veterans Law Judge during a May 2018 hearing.  This case was remanded by the Board of Veterans' Appeals (Board) in September 2018. 

The Veteran's representative in a July 2021 presentation to the Board requested that the case be remanded again to afford the Agency of Original Jurisdiction (AOJ) the opportunity to conduct the initial review of additional pertinent clinical evidence obtained by the Board (with no indication that it was submitted by the Veteran or his representative which would not require initial review by the AOJ) in January 2021 subsequent to the completion of the most recent supplemental statement of the case (SSOC) in August 2020.  As such, and in light of the additional development requested below, the AOJ will have the opportunity to adjudicate the claims on appeal with consideration of all the evidence received since the completion of the most recent SSOC.  

The Veteran's representative also requested that the case be remanded in light of asserted inadequacies in the November 2019 VA examination that addressed the claims for service connection for left and right ankle disabilities.  In this regard, the negative opinions rendered following this examination were based solely on a review of the service treatment reports (STRs), and did not reflect consideration, as referenced by the Veteran's representative, of the Veteran's assertions that she has had bilateral ankle pain from service to the present time, and that she avoided seeking treatment during service for her ankles so as to avoid being considered a malingerer.  Also as noted by the Veteran's representative, the Veteran's military occupational specialty (MOS), heavy wheeled vehicle mechanic, is a physical one involving repetitive climbing, bending, kneeling, lifting, and lying on the ground under vehicles.  Such duty clearly has the potential to result in strain on the ankles.  In short therefore, the AOJ will be requested upon remand to obtain an addendum opinion from the November 2019 VA examiner that reflects consideration of the Veteran's assertions of continuous ankle problems from service to the present time in light of the nature of the Veteran's duties in service.  

For the reasons stated above, this case is REMANDED to the AOJ for the following development:  

Obtain an addendum opinion from the clinician who conducted the November 2019 VA examination that addressed the claims for service connection for left and right ankle disabilities, or a suitable substitute if this clinician is not available, as follows:  

Is at least as likely as not (probability of 50 percent or greater) that the Veteran has a left or right ankle disability that was incurred in service?  

A detailed rationale for this opinion must be provided and a negative opinion should include consideration of the rigors of the Veteran MOS and her assertions of continuity of left and right ankle symptoms from service to the present time and not be based solely on a lack of sufficient in-service clinical evidence of left or right  ankle disability. 

 

 

MARJORIE A. AUER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Andrew Ahlberg, Counsel