Citation Nr: 21063590 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-44 638 DATE: October 14, 2021 REMANDED The issue of entitlement to service connection for a right ankle disability, to include as secondary to service-connected disabilities, is remanded. The issue of entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities, is remanded. The issue of entitlement to service connection for a sinus disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2007 to September 2011. This appeal to the Board of Veteran's Appeals (Board) arose from an April 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). During the current appeal, and specifically in June 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. In April 2020, the Board denied entitlement to service connection for right knee, right ankle, and sinus disorders. The Veteran appealed the April 2020 Board decision, pertaining to those denials, to the Court of Appeals for Veterans Claims (CAVC or Court), which vacated the decision in part and remanded it back to the Board for further development in May 2021, pursuant to a Joint Motion for Partial Remand (JMPR). After a thorough review of the Veteran's claims file, and pursuant to the directives outlined in the May 2021 JMPR, the Board finds that further evidentiary development is necessary prior to adjudication of these service connection claims. In particular, at the June 2019 Board hearing, the Veteran asserted that he received treatment for his ankle and knee conditions at a VA medical center. At the time of the Board hearing, the record contained VA treatment records up until May 2016. Those records indicated that X rays were performed on his ankle, but those findings were not included in those medical records. Additionally, there were treatment records contained in the VISTA Imaging System that were not included in the medical records associated with the claims file. Although VA treatment records have been associated with the file since that time, those records are not germane to the treatment of his right knee and ankle conditions. The Veteran also testified that he had surgery performed on his knee by a private medical provider. In an August 2016 correspondence, a private doctor (Dr. G.) opined that the Veteran's ankle was aggravated by his (service-connected) left knee. There was no opinion regarding the Veteran's right knee or right ankle. See August 2019 Private Medical Treatment Record. The Board acknowledges that the Veteran is service connected for a left ankle condition and left knee condition association with his left ankle strain. At the June 2019 Board Hearing, the Veteran's representative asserted that there is a possible relation between the Veteran's right ankle and his service-connected left ankle condition. The Veteran also shared having problems with his left and right knees at the same time. See June 2019 Hearing Transcript. Regarding the Veteran's sinus condition, the Veteran asserts that he received a nose fracture as a result of breaking up a fight during his service. A private medical opinion by another private physician (Dr. P) was provided as an amendment to another record which read, "CT sinus without contrast stealth protocol; for surgical planning, call with results." It was also indicated that the Veteran was referred to Dr. P by another doctor (D. S.) See August 2019 Private Medical Record. There has been no attempt by the Agency of Original Jurisdiction (AOJ) to obtain these private medical records. As the record stands, the Board is unable to make a clear and informed decision regarding the Veteran's service connection claims. Therefore, on remand, the AOJ must undertake the necessary development to obtain any outstanding VA and private medical records. Also, VA examinations should be afforded to the Veteran to determine the nature and etiology of these claimed conditions. Accordingly, these matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records. The AOJ should secure any necessary authorizations. Copies of all available private and VA documents should be associated with the Veteran's claims folder. Regarding the private medical records, the AOJ should secure the necessary authorizations to obtain private medical records from the private physicians referenced in the record (Dr. G, Dr. P, and Dr. S) by providing the Veteran with VA Forms 21 -4142/4142(a), General Release for Medical Provider Information and Authorization for Release of Information. Regarding the outstanding VA treatment records, VA must make the necessary efforts to obtain treatment records specific to his right knee and ankle conditions, including the x-rays conducted. Furthermore, any records contained in the VISTA Imaging System should be obtained. If the records are unavailable, inform the Veteran of such and of the efforts made to obtain them. The Veteran should also be notified that he may submit any such records himself. All efforts should be recorded in the claims folder. 2. Once all available, relevant medical records have been received, and associated with the claims file, the AOJ should refer the Veteran's entire claims file to a medical professional of appropriate expertise to provide an examination to determine the nature and etiology of the Veteran's claimed conditions. The claims file and a copy of this REMAND should be made available to the examiner for review. After record review and examination, the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries, as clearly and precisely as possible: Right Ankle (a) Please provide the diagnosis or diagnoses of a right ankle disability found to be present during the pendency of this appeal. (b) If a diagnosis of a right ankle disability is found to be present during the appeal period, is it at least as likely as not (50 percent or greater probability) that such condition was incurred in, caused by, or etiologically related to the Veteran's service? In answering this question, the examiner must consider and address the Veteran's assertion of having injured his right ankle while playing basketball. (c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's right ankle disability is caused by any service-connected conditions, specifically his service-connected his left knee and left ankle disabilities? (d) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's right ankle disability is aggravated (i.e., worsened beyond the natural progress) by any service-connected conditions, specifically his service-connected left ankle and left knee disabilities? If his right ankle condition is deemed not to be due to, or aggravated by his service-connected conditions, then the examiner should, if possible, identify the cause considered more likely and explain why that is so. If the examiner determines that the Veteran's right ankle condition is aggravated by any of his service-connected conditions, the examiner should report the baseline level of severity of the condition prior to the onset of aggravation. If some of the increase in severity of right ankle condition is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. [In this regard, the Board notes that causation and aggravation are independent concepts. Therefore, the examiner must provide separate findings and rationales for causation and aggravation.] Right Knee (a) Please provide the diagnosis or diagnoses of a right knee disability found to be present during the pendency of this appeal. (b) If a diagnosis of a right knee disability is found to be present during the appeal period, is it at least as likely as not (50 percent or greater probability) that such condition was incurred in, caused by, or etiologically related to the Veteran's service? (c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's right knee disability is caused by his service-connected conditions, specifically his service-connected left ankle and left knee disabilities? (d) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's right knee disability is aggravated (i.e., worsened beyond the natural progress) by any service-connected conditions, specifically his service-connected left ankle and left knee disabilities? If his right knee condition is deemed not to be due to, or aggravated by his service-connected conditions, then the examiner should, if possible, identify the cause considered more likely and explain why that is so. If the examiner determines that the Veteran's right knee condition is aggravated by any of his service-connected conditions, the examiner should report the baseline level of severity of the condition prior to the onset of aggravation. If some of the increase in severity of right knee condition is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. [In this regard, the Board notes that causation and aggravation are independent concepts. Therefore, the examiner must provide separate findings and rationales for causation and aggravation.] Sinus Disorder (a) Please provide the diagnosis or diagnoses of a sinus disorder, to include deviated septum, found to be present during the pendency of this appeal. (b) If a diagnosis of a sinus disorder or deviated septum condition is found to be present during the appeal period, is it at least as likely as not (50 percent or greater probability) that such condition was incurred in, caused by, or etiologically related to the Veteran's service? In answering this question, the examiner must consider and address the Veteran's assertion that he broke his nose as a result of breaking up a fight during his service. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Then, review the record, conduct any additional development deemed necessary, and readjudicate the appeal. If any benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 that may be scheduled 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 S. Middleton, 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.