Citation Nr: 21063387 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-04 255 DATE: October 14, 2021 ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right ankle disability. 2. Entitlement to an initial compensable disability rating for service-connected left ankle sprain. 3. Entitlement to service connection for a right ankle disability, to include as due to service-connected left ankle sprain. 4. Entitlement to service connection for a right knee disability, to include as due to service-connected left ankle sprain. 5. Entitlement to service connection for a left knee disability, to include as due to service-connected left ankle sprain. 6. Entitlement to service connection for a low back disability, to include as due to service-connected left ankle sprain 7. Entitlement to service connection for an acquired psychiatric disorder, to include depression. 8. Entitlement to service connection for hypertension, to include as due to an acquired psychiatric disorder. 9. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU). ORDER Having determined that new and material evidence has been received, the claim for entitlement to service connection for a right ankle disability is reopened; to this extent, the appeal is granted. Entitlement to service connection for a left knee disability, to include as due to service-connected left ankle sprain is granted. Entitlement to service connection for a low back disability, to include as due to service-connected left ankle sprain is granted. REMANDED Entitlement to an initial compensable disability rating for service-connected left ankle sprain is remanded. Entitlement to service connection for a right ankle disability, to include as due to service-connected left ankle sprain is remanded. Entitlement to service connection for a right knee disability, to include as due to service-connected left ankle sprain is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression is remanded. Entitlement to service connection for hypertension, to include as due to an acquired psychiatric disorder is remanded. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a July 1988 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a right ankle disability. The Veteran did not immediately appeal this rating decision, and thus it became final. 2. The evidence received since the July 1988 rating decision relates to an unestablished fact necessary to substantiate the Veteran's service connection claim for a right ankle disability. 3. Resolving all reasonable doubt in the Veteran's favor, the Veteran's left knee disability is proximately due to the Veteran's service-connected left ankle sprain. 4. Resolving all reasonable doubt in the Veteran's favor, the Veteran's low back disability is proximately due to the Veteran's service-connected left ankle sprain. CONCLUSIONS OF LAW 1. The July 1988 rating decision denying entitlement to service connection for a right ankle disability is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received and the claim of entitlement to service connection for a right ankle disability is reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a left knee disability, to include as due to service-connected left ankle sprain have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for a low back disability, to include as due to service-connected left ankle sprain have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from April 1985 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2013 rating decisions, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran was initially granted entitlement to service connection for a left ankle sprain at 10 percent disabling in a rating decision from July 1988. That same rating decision denied entitlement to service connection for a right ankle sprain. The Veteran did not appeal the denial-of-service connection, and the denial became final. A subsequent rating decision from February 1992 reduced the Veteran's disability rating for his service-connected left ankle sprain to a noncompensable rating. The Veteran then applied for an increased rating for his service-connected left ankle sprain, while also claiming entitlement to service connection for a right ankle disability, bilateral knee disabilities, a low back disability, hypertension, and depression. A May 2013 rating decision denied an increased rating for the service-connected left ankle sprain, while denying entitlement to each of the Veteran's service connection claims, aside from the right ankle claim. An additional rating decision from May 2014 again kept the disability rating for the left ankle sprain at a noncompensable rating, while again denying entitlement to service connection for hypertension, and continuing to deny the previously denied claim for entitlement to service connection for the right ankle disability. The Veteran submitted timely Notices of Disagreement (NODs) in July 2013 and June 2014 respectively. The Veteran was issued a statement of the case (SOC) in April 2017, and the Veteran, through his Attorney, filed a VA Form 9, appealing their claims to the Board. In the VA Form 9, they requested a hearing before a Veterans Law Judge. The Veteran then appeared before the undersigned Veterans Law Judge in a Travel Board hearing in June 2021 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. When a Veteran files a claim for an increased rating, they are presumed to be seeking the maximum benefit under any applicable theory, including total disability rating based on individual unemployability (TDIU). See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Id. at 453-54. In this case, the Veteran asserts that he is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities, to include the service-connected left ankle sprain. Therefore, the issue of entitlement to TDIU has been raised and is before the Board. The Board notes that when a Veteran makes a claim, they are seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has re-characterized the previous issues of entitlement to service connection for depression, as entitlement to service connection for an acquired psychiatric disorder, to include depression. See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). As an initial matter, the Board must make its own determination as to whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle disability. That is, the Board has jurisdictional responsibility to consider whether the service connection claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right ankle disability. Applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the RO may have made with regard to a new and material claim is irrelevant. Barnett, 83 F.3d at 1383. Thus, the Board will proceed in the following decision to adjudicate new and material issues in the first instance. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). As indicated above, the Veteran's prior claim for entitlement to service connection for a right ankle disability was denied in a rating decision from July 1988. The claim was denied as the Veteran's "right ankle was normal" and there was no evidence that a right ankle disability was due to his active-duty service. The Veteran testified before the undersigned in June 2021. During the hearing, the Veteran testified that he experiences pain in his right ankle, and that pain has led to a functional loss in his ability to exercise and move generally. He stated that the right ankle tends to flare up, and because he favors his left ankle, which is currently service-connected, he must apply more pressure to his right ankle, which results in pain. He also testified that his service-connected left ankle disability has altered his gait, and that unequal pressure has resulted in an additional disability to his right ankle. Importantly, while the Veteran's claim still involve entitlement to service connection for a right ankle disability, he has essentially made a new argument: that this disability is secondary to his service-connected left ankle sprain. Again, the original rating decision denied the Veteran's claim because it was not shown that the Veteran's right ankle disability was related to service on a direct basis. The arguments and the testimony provided are new, insofar as they were not previously submitted to the VA. The submitted arguments and testimony are also material, in that they go to an unestablished fact necessary to substantiate the claim for entitlement to service connection, in that his claim for entitlement to service connection should be also be considered on a secondary basis. 38 C.F.R. § 3.156 (a). Affording the Veteran the benefit of reasonable doubt, the Board finds that, under the circumstances of this case, rejecting the Veteran's request to reopen his previously denied service connection claim would be in conflict with the principles explained in Justus and Duran. For these reasons, the claims for service connection for a right ankle disability will be reopened. 38 C.F.R. § 3.156(a), see Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), see further Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 2. Entitlement to service connection for a left knee disability, to include as due to service-connected left ankle sprain. The Veteran has claimed that he has a left knee disability that is due to his service-connected left ankle sprain. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Turning to the criteria for entitlement to service connection, the Veteran's claims file contains VAMC records whereby the Veteran has frequently complained of pain in his bilateral knees. A further private report from Dr. S. B., submitted in April 2021, notes that the Veteran has a diagnosis of "left knee strain." 38 C.F.R. § 3.310. The Veteran is currently service connection for left ankle sprain at a noncompensable disability rating, and therefore he has also met the second criteria for entitlement to service connection. 38 C.F.R. § 3.310. Turning to the final criteria, the Veteran testified before the undersigned in June 2021 that he believes his left knee disability is aggravated by his service-connected left ankle sprain. The Veteran testified that when I have a problem with my ankle, which is when I put the brace on, when I walked around for a couple of days, I generally get a very sharp pain in my knee and then I rest. I have to stop. And I get it so often it swells. The Veteran testified that he did not actually injure his left knee during service, and he is not claiming entitlement to service connection on a direct basis. Instead, he believes that his current left knee problems are aggravated by his altered gait, and that there is additional pressure on his left knee because of this imbalance. The Veteran's claims file contains a private medical opinion from Dr. S.B. from April 2021. The examiner reviewed the Veteran's claims file, although it does not appear that the Veteran was seen in person for an examination. The report does however provide a thorough review of the Veteran's left ankle disability, as well as the reported symptoms related to his left knee disability. The report cites to medical literature, and then opines that it is extremely unlikely that his left ankle did not have an impact on this Veteran's left knee strain ... thus, it is at least as likely as not that the left knee strain ... [is] secondary to the Veteran's service-connected left ankle strain. As such, a positive etiological opinion was provided. There is no evidence that the private examiner was not competent or credible, and despite the examination not occurring in person, the Board notes that the report was based on accurate facts and the Veteran's prior medical history. Thus, the Board finds the private report from Dr. S.B. is entitled to significant probative weight as to the etiology of the Veteran's left knee disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not been given a VA examination for his left knee disability. In consideration of the above, the Board finds that the Veteran's left knee disability is secondary to his service-connected left ankle sprain. To begin, the Veteran has a current disability of a left knee strain, and he currently has a service-connected left ankle disability. The Veteran provided competent testimony as to how his service-connected left ankle sprain has caused him to have an altered gait, and upon wearing a left ankle brace, he regularly feels sharp pains in his left knee. The Veteran's claims file does not contain a VA examination for this disability; thus the only available report comes from the private examiner Dr. S. B. from April 2021. And while the Board recognizes that this report was not an in-person examination, the report cited medical literature, and provided a positive etiological link using the correct legal standard, as well as accurate facts and evidence from the Veteran's claims file. Therefore, the only available evidence within the claims file is that which is positive to the Veteran. Accordingly, and resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's left knee disability is proximately due to his service-connected left ankle sprain, and he has met the final criteria for entitlement to service connection on a secondary basis. 38 C.F.R. § 3.310. Thus, affording the Veteran the benefit of the doubt, entitlement to service connection for a left knee disability, to include due to service-connected left ankle sprain is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to service connection for a low back disability, to include as due to service-connected left ankle sprain. The Veteran has claimed that his low back disability is proximately due to or aggravated by his service-connected left ankle sprain. Turning to the criteria for entitlement to service connection, the Veteran's claims file contains VAMC records whereby the Veteran has frequently complained of pain to his lower back. A further private report from Dr. S.B., submitted in April 2021, notes that the Veteran has a diagnosis of "lower back disease." 38 C.F.R. § 3.310. The Veteran is currently service connection for left ankle sprain at a noncompensable disability rating, and therefore he has also met the second criteria for entitlement to service connection. 38 C.F.R. § 3.310. Turning to the final criteria, the Veteran testified before the undersigned in June 2021 that he believes his low back disability is proximately due to or aggravated by his service-connected left ankle sprain. The Veteran testified that The back pain is lower and it's intense. I get it probably three times a month, and when I do walk ... I do shuffle a little when it's swollen, and it's after that today that I do find myself having problems with my lower back. The Veteran then testified that the lower back pain started after he injured his left ankle, but it is worsened because of his altered gait pattern as a result of his service-connected ankle. Again, the Veteran testified that he did not actually injure his low back during service, and he is not claiming entitlement to service connection on a direct basis. Instead, he believes that his current low back problems are aggravated by his altered gait, and the additional pressure that this imbalance has caused him. The Veteran's claims file contains private medical treatment records from Dr. M. Those records include a report from February 2011 which indicates that the Veteran "was talking to one of the customers when a block of ice fell on him ... it fell on his right cheek and upper back." The private records do not contain an etiological opinion on either a direct or secondary basis. The Veteran's claims file also contains a private medical opinion from Dr. S.B. from April 2021. The examiner reviewed the Veteran's claims file, and as noted above, it does not appear that the Veteran was seen in person. The report does however provide a thorough review of the Veteran's left ankle, as well as the reported symptoms related to his low back disability. The report cites to medical literature, and then opines that it is extremely unlikely that his left ankle did not have an impact on this Veteran's lumbar spine strain ... thus, it is at least as likely as not that the lumbar spine disease ... [is] secondary to the Veteran's service-connected left ankle strain. As such, a positive etiological opinion was provided. The report provided by Dr. S. B. also directly contradicted the previous private medical record from Dr. M. that noted the Veteran's lower back disability may be "due to an isolated incident of when a block of ice fell on his back." Dr. S. B. considered that report, but still wrote that "the lower back injury is a compensatory injury from chronic left ankle strain." They then reaffirmed that the "lumbar spinal strain [is] at least as likely as not secondary to the service-connected left ankle strain." There is no evidence that Dr. S. B. was not competent or credible, and despite the examination not occurring in person, the Board notes that the report was based on accurate facts and the Veteran's prior medical history. Thus, the Board finds the private report from Dr. S.B. is entitled to significant probative weight as to the etiology of the Veteran's low back disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not been given a VA examination for his low back disability. In consideration of the above, the Board finds that the Veteran's low back disability is secondary to his service-connected left ankle sprain. To begin, the Veteran has a current disability of a low back disability, and he currently has a service-connected left ankle sprain. The Veteran provided competent testimony as to how his service-connected left ankle sprain has caused him to have an altered gait, which has put additional pain on his lower back. The Veteran's claims file does not contain a VA examination for this disability. The most complete etiological report thus comes from the private examiner Dr. S.B. from April 2021. And while the Board recognizes that this report was not an in-person examination, the report cited medical literature, and provided a positive etiological link using the correct legal standard, as well as accurate facts and evidence from the Veteran's claims file. Furthermore, despite the report from Dr. M. that indicates the Veteran hurt his back from a block of ice, the report from Dr. S. B. directly responds to this and still noted that the lower back injury was compensatory from his left ankle sprain. Accordingly, and resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's low back disability is proximately due to his service-connected left ankle sprain, and he has met the final criteria for entitlement to service connection on a secondary basis. 38 C.F.R. § 3.310. Thus, affording the Veteran the benefit of the doubt, entitlement to service connection for a low back disability, to include due to service-connected left ankle sprain is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to an initial compensable disability rating for service-connected left ankle sprain is remanded. The Veteran has claimed that his service-connected left ankle sprain is worse than currently rated. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As noted above, the Veteran testified before the undersigned in June 2021. The Veteran testified that his service-connected left ankle disability has gotten worse since the most recent VA examination in February 2013. The Veteran testified that during that examination he was not fully able to complete the testing, as his ankle was in so much pain. He testified that he now wears a brace and that "it's painful about two or three times a week ... it swells up ... it's a persistent pain, it's difficulty to function when it swells up ... and it's often." The Veteran described the swelling as painful, and that it prevented him from performing physical activities, such as exercising. The Veteran is competent to report the symptoms he experiences, such as those associated with his service-connected left ankle sprain. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Turning to the available medical evidence, the Board notes that the Veteran's claims file contains a report from Dr. S. B. from April 2021. This report attempts to evaluate the Veteran's claim for the "increase in rating of left ankle disease." While the Board has afforded this report probative weight when considering the etiological opinions in the preceding sections, the Board recognizes that this report was not based on an in-person examination. As such, the examiner was unable to conduct an in-person clinical evaluation for the service-connected left ankle sprain, and thus the report is inadequate for determining the current severity. See, Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further medical evidence indicates that the most recent VA examination to assess the current severity of the Veteran's service-connected left ankle sprain is from February 2013. That examination did not have the ability to consider the Veteran's testimony, and he has testified that his ankle disability has worsened following that examination from over eight years ago. The Veteran has also described additional pain since that VA examination, as well as flare ups, immobility, functional impairments, and further mobility issues of the left ankle. This is particularly important following a recent Court decision which addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. The Board also recognizes that the rating schedule for service-connected disabilities of the ankle has recently changed, which would likely impact the Veteran's current disability rating. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5271). Finally, the Veteran has testified that the severity of this service-connected left ankle sprain has worsened since the most recent VA examination. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Also, where the Veteran claims that a disability is worse than when originally rated, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992). Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected left ankle sprain. See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). 2. Entitlement to service connection for a right ankle disability, to include as due to service-connected left ankle sprain is remanded. The Board incorporates its discussion from the sections above by reference. As noted above, the Veteran has claimed that his right ankle disability may be due to or aggravated by his service-connected left ankle sprain. The Veteran was given a hearing before the undersigned in June 2021. During the hearing, the Veteran testified that he gets flare ups of the right ankle due to the altered gait, caused by him favoring his service-connected left ankle. He testified that the right ankle becomes "tight" and movement "is difficult" with "a sharp pain." The Veteran stated that he "can't put all my weight on my left ankle because to me that's a weak joint ... and so I get the pain because I feel like I'm pushing everything on my right-hand side." The Veteran further testified that "it's difficult to function when it swells up ... and it's often," so he can no longer exercise like he used to. The Veteran is competent to report the symptoms he experiences, such as those associated with his right ankle. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Turning to the criteria for entitlement to service connection, the Board recognizes that the Veteran has not been given a VA examination for his claimed right ankle disability since prior to the July 1988 rating decision, denying his initial claim. Furthermore, no etiological opinion has been rendered regarding his claim of entitlement to service connection on a secondary basis. VA's duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. Under 38 U.S.C. § 5103A (d)(2) (2012), VA must provide a medical examination and, or, obtain a medical opinion, when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The third element, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. at 83. The Veteran must be given a VA examination so that an etiological opinion may be given, considering his claim of entitlement to service connection on a secondary basis. The Board also notes that the Veteran's right ankle disability has not been confirmed, but that he has testified he experiences right ankle pain, which has led to a functional loss. As such, the VA examiner is asked to confirm the Veteran's current right ankle disability pursuant to Saunders v. Wilkie. In Saunders v. Wilkie, the Federal Circuit found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The case reversed years of precedent that had held that "pain alone is not a disability for the purposes of VA disability compensation." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). 3. Entitlement to service connection for a right knee disability, to include as due to service-connected left ankle sprain is remanded. The Veteran has claimed that he has a right knee disability that is due to, or aggravated by, his service-connected left ankle sprain. The Board incorporates its discussion from the sections above by reference. As noted above, the Veteran testified in June 2021 that his left knee disability is proximately due to his left ankle sprain. That service connection claim has been granted herein. The Board also notes that the Veteran has provided similar testimony for his claimed right knee disability. In brief, the Veteran has argued that the service-connected left ankle sprain has caused his gait to be altered, and that favoring of his left ankle has put additional pressure on his right knee, causing him painful flare ups and limited mobility. Again, the Veteran is competent to report on the symptoms that he experiences. See Jandreau, Id. In contrast to the preceding section however, the private medical report provided by Dr. S. B. from April 2021 does not discuss the effect of the Veteran's altered gait or favoring his service-connected left ankle sprain on his right knee. The report from Dr. S. B. only discusses the left knee. Furthermore, the Veteran has not been given a VA examination for his right knee disability. As such, the Veteran should be given a VA examination, whereby his right knee disability, if any, is confirmed pursuant to Saunders. See Saunders, Id. See also, McLendon, Id. Etiological opinions should then be rendered on a secondary basis. 4. Entitlement to service connection for an acquired psychiatric disorder, to include depression is remanded. The Veteran claims that his acquired psychiatric disorder, to include depression, is due to his active-duty service. The Veteran testified before the undersigned in June 2021 that he believes he has depression, because he gets "very short tempered with people easily ... I can actually feel tension. It feels like I'm not actually getting a headache but getting quite close to it." The Veteran believes that his depression stems from hazing that he experienced while in boot camp. The Veteran testified that he was made fun of "because I speak with an accent," and that he was "jumped [and assaulted] probably eight times ... I got in a lot of fights and obviously to protect myself." The Veteran stated that he never filed a report because "if I did [report], it would've got worse." He testified that he experiences nightmares related to his time in service, and that his previous two marriages failed "because I just became hard to live with." The Veteran is competent to report the symptoms he experiences, such as those associated with his claimed psychiatric disorder. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). To begin, it is unclear if the Veteran has a current diagnosis. The Veteran's claims file contains a private medical evaluation from Z.G., signed in November 2018. The Board notes that it does not appear that Z.G. is a licensed psychologist or psychiatrist. In the report provided, a diagnosis of major depressive disorder with recurrent psychotic features is made. A follow up disability benefits questionnaire (DBQ) from the same examiner made a similar diagnosis, in addition to a diagnosis of post-traumatic stress disorder (PTSD). It is unclear from the report as to whether or not the Veteran was seen in person during this evaluation. The Board also recognizes factual discrepancies from the report, such as the examiner noting that the Veteran "has not been able to work for the past 18 years due to his symptoms," despite the Veteran having a job in car sales within that time frame. The Veteran testified in June 2021 that he last worked in 2017. Considering that the Veteran was not seen for the November 2018 evaluation, and that it contains factual inaccuracies, the Board finds that the report from Z.G. is inadequate for determining the Veteran's current diagnosis, as well as whether that diagnosis is due to his active-duty service. The Board also notes that the Veteran has not been given a VA mental health evaluation. This mental health evaluation is required under VA's Duty to Assist. See McLendon, Id. As such, the Veteran should be afforded a VA mental health evaluation to determine whether or not he has a current acquired psychiatric disorder, and to provide an etiological opinion for any diagnosis found. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 5. Entitlement to service connection for hypertension, to include as due to an acquired psychiatric disorder is remanded. The Board incorporates its discussion from the sections above by reference. The Veteran has claimed that his hypertension may be due to his claimed acquired psychiatric disorder, to include depression. The Veteran testified in June 2021 that he takes medication for high blood pressure and has been on that medication for "probably eight [or] nine years ago." The Veteran testified that he believes his high blood pressure is "definitely" related to his mental health symptoms, and that when he is experiencing mental health symptoms of anger or anxiety, he can feel the tension in his body rising. The Veteran's Attorney also argued during the June 2021 hearing that there may be relevant civilian records related to the hypertension claim. Although they stated that those records would soon be associated with the claims file, no relevant records have been uploaded to the claims file since that hearing took place. As such, it remains unclear what, if any, civilian records are available that may be related to the Veteran's claim. Furthermore, the Board also notes that the Veteran has claimed his high blood pressure may be due to an acquired psychiatric disorder, a disorder that has not yet been confirmed and is not currently service connected. As such, the Board finds that the hypertension claim is inextricably intertwined with the claim of entitlement to service connection for an acquired psychiatric disorder. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The psychiatric disorder claim is being remanded herein. Therefore, the claim for entitlement to service connection for hypertension must be also remanded pending the development and readjudication of the acquired psychiatric disorder claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board also notes that the Veteran has not been given a VA examination for his claimed hypertension, and an etiological opinion has therefore not been rendered on either a primary or secondary basis. As such, following the search for any/all relevant private civilian records, the Veteran must be afforded a VA examination for his claimed hypertension, and a nexus opinion must be given on a secondary basis. 6. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran has argued that his service-connected disabilities have caused him to be unable to maintain employment. The Veteran testified before the undersigned in June 2021 that he struggles maintaining a job due to his service-connected left ankle sprain. The Veteran stated that he last worked in 2017. He testified that it is tough being on his feet, and that he used to work in restaurants but more recently sold vehicles. He also testified that his service-connected left ankle sprain caused work difficulties, but that he also has high blood pressure issues, in addition to anxiety and depression symptoms; two issues for which he is claiming entitlement to service connection herein. As stated in the introduction, a request for a TDIU, even when expressly raised by a Veteran, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Hence, the claim for entitlement to total disability for individual unemployability due to service-connected disabilities (TDIU) is inextricably intertwined with the increased ratings claim for the Veteran's service-connected left ankle sprain. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As noted above however, that increased rating claim is being remanded herein. The Board equally notes that the claims for entitlement to service connection for hypertension and for an acquired psychiatric disorder are also being remanded herein, and the disposition of those claims would impact his claim for entitlement to TDIU. Therefore, the claim for a TDIU must be also remanded pending the development and readjudication of the claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain any VA treatment records not previously associated with the file. Contact the Veteran for information necessary to obtain any treatment records, including, but not limited to, the civilian records referenced in the Veteran's June 2021 Board hearing related to his high blood pressure. Additional Authorizations for Release of Information should be obtained from the Veteran as deemed necessary. All records obtained, and the attempts to obtain those records, should be associated with the claims file. If the records cannot be obtained, the Veteran and his Attorney should be notified. 2. Forward the Veteran's claims file to a VA psychiatrist for a VA mental health evaluation (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) to address his claim of entitlement to service connection for an acquired psychiatric disorder. A copy of this remand must be made available to the examiner for review in conjunction with this examination. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: (a.) Confirm any/all current diagnoses of an acquired psychiatric disorder. Following that, for each diagnosed acquired psychiatric disorder, is it at least as likely as not that the Veteran's diagnosis was incurred in, or is otherwise related to, his time in active service? The examiner is reminded that the Veteran has provided detailed testimony in June 2021 that he was hazed and assaulted on a number of occasions during his time with the Marine Corps, but that he did not report the incidents because he feared it would make things worse. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer 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. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for a VA medical examination(s) (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) with an appropriate physician(s) in regard to his claims of entitlement to service connection for a right ankle disability, a right knee disability, and hypertension, as well as to assess the current severity of his service-connected left ankle sprain. Additional VA examinations should be scheduled as deemed necessary. The entire claims file, to include a copy of this remand, should be made available for the clinician(s) to review, and the reports should reflect that such review was accomplished. The clinician(s) should consider the lay statements and testimony of the Veteran. The examiner is asked to offer opinions as to the following: As it relates to the claimed right ankle disability: (a.) the examiner is to provide a diagnosis which accounts for the Veteran's present symptoms of his right ankle. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as pain, or instability. Complete the "Functional Impact" section of the report. (b.) Then, for any disability found, provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's right ankle disability is causally related to, or aggravated by, his military service. Any opinion should include a complete rationale. (c.) If not, is it at least as likely as not that the Veteran's right ankle disability was caused or aggravated (increased in severity) by the Veteran's service-connected left ankle sprain? The examiner is reminded that the Veteran testified that his altered gait causes him to put more pressure on his right ankle, leading to painful flare ups. As it relates to the Veteran's claimed right knee disability: (d.) the examiner is to provide a diagnosis which accounts for the Veteran's present symptoms of his right knee. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as pain, or instability. Complete the "Functional Impact" section of the report. (e.) Then, for any disability found, provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's right knee disability is causally related to, or aggravated by, his military service. Any opinion should include a complete rationale. (f.) If not, is it at least as likely as not that the Veteran's right knee disability was caused or aggravated (increased in severity) by the Veteran's service-connected left ankle sprain, and/or his left knee disability, which has been granted herein? The examiner is reminded that the Veteran testified that his altered gait causes him to put more pressure on his right knee, leading to painful flare ups. For any opinion provided, if the opinion is that there is aggravation, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of the severity of the nonservice-connected disorder before the on-set of aggravation. "Aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. In forming the opinion, the examiner must consider all lay statements of record, as well as the Veteran's testimony regarding in-service noise exposure. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. As it relates to the claimed hypertension: (a.) the examiner is asked to confirm whether or not the Veteran has a current diagnosis of hypertension. Then, for any diagnosis found, provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's hypertension is causally related to, or aggravated by, his military service. Any opinion should include a complete rationale. (b.) If not, is it at least as likely as not that the Veteran's right ankle disability was caused or aggravated (increased in severity) by the Veteran's claimed acquired psychiatric disorder, to include depression? For any opinion provided, if the opinion is that there is aggravation, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of the severity of the nonservice-connected disorder before the on-set of aggravation. "Aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. As it relates to the Veteran's service-connected left ankle sprain: (c.) determine the current severity of the Veteran's service-connected left ankle sprain. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. The examiner is reminded that the Veteran testified in June 2021 as to the severity and frequency of his left ankle flare ups, in addition to further symptoms of pain, inflammation, stiffness and functional loss, among others. The examiner is to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the joint(s) in question and any paired joint(s). See Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The examiner should detail range of motion measurements, to include the degree at which he experiences pain, any additional impact caused by motion such as weakness and fatigability, incoordination, or swelling. The examiner is to note a full and complete history of the Veteran's symptoms, to include symptoms associated with any flare-ups. Provide an opinion as to additional functional loss during flare-ups of the musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to ascertain information as to the frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 4. Thereafter, readjudicate the issues on appeal as noted above, to include the inextricably intertwined claim of entitlement to TDIU. If the determination remains unfavorable to the Veteran, he and his Attorney should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his Attorney should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.