Citation Nr: 21064011 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 18-38 674 DATE: October 18, 2021 REMANDED Entitlement to service connection for a left ankle disability is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Marine Corps (USMC) from December 2005 to January 2011. This matter comes before the Board of Veterans' Appeals (Board) from an October 2016 rating decision, issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. Although the Board sincerely regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a left ankle disability is remanded. The Veteran contends he is due entitlement to service connection for a left ankle disability that he claims he has continuously suffered from since his discharge from service. The Board is cognizant that the Veteran has not received a formal VA examination for his claimed left ankle disability as part of his claim for entitlement to service connection. Therefore, the Board remands the claim in accordance with McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The United States Court of Appeals for Veterans Claims (Court) held in McLendon that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Here, the Board finds all four of the elements to be satisfied. The Veteran's private treatment records as well as his VA Medical Center (VAMC) treatment records note that he suffers from left ankle pain and arthritis of the subtalar joint. The Veteran also testified in his Board hearing that he has a current left ankle disability. The Court noted that the first element only requires consideration of whether there is evidence of a current disability or persistent or recurrent symptoms thereof and an assessment that the evidence is competent. McLendon, 20 Vet. App. at 81; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that this element is thus met. The second McLendon element requires evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation. McLendon, 20 Vet. App at 82. The Court has found that the assessment of whether the evidence establishes the Veteran suffered an event, injury or disease in service is a "classic factual assessment, involving the weighing of facts." Id. In the case at hand, the Veteran's service treatment records (STRs) do note that he rolled his ankle while playing basketball during service. Sgt. S.J.K. also submitted a statement in September 2016 indicating that the Veteran injured his ankle and that he remembers the Veteran showing him the swollen ankle. The Veteran also offered multiple statements, including at his Board hearing, reporting that he injured the ankle on a Friday and took the weekend to rest the ankle rather than seeking medical attention. He reported that it was swollen and purple after the injury. The Veteran claims that on his separation examination he reported pain in his ankle, but x-rays showed the ankle to be normal and he was not treated for any ankle injury. The Veteran has competently and credibly reported that the ankle pain continued through his discharge from active duty and still causes issues. The Board finds the Veteran's consistent lay statements, testimony, and medical history establish that the Veteran experienced an "in-service event, injury or disease," and thus meets the second element of the McLendon analysis. McLendon, 20 Vet. App at 82. The third McLendon element requires an indication that the current disability may be related to the in-service event. The Court has held that the requirement that a disability "may be associated" with service is a "low threshold" standard. McLendon, 20 Vet. App. at 83. "The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon, 20 Vet. App. at 83. Here, the Veteran makes consistent lay statements throughout the record that the ankle pain has been continuous since his discharge from active duty. The Veteran also has a buddy statement in the record in which a fellow servicemember recalls the Veteran's injury in-service. The Veteran also has treatment records from private providers as well as the VA spanning from November 2012 to the present day that suggest he has continuously experienced left ankle problems. The Board finds that all of this evidence together meets the low threshold of the third McLendon element. The final McLendon element states that an examination must be performed if there is insufficient evidence to decide the case. To date, the Veteran's record only holds lay statements that are not competent to establish the etiology of the condition, medical records from private providers that lack any opinions or rationale, and VA treatment records that do not link the Veteran's current ankle disorder to his time on active duty. This evidence is not sufficient to render a decision on the Veteran's claim. Therefore, the Board must remand under the McLendon factors to obtain a full VA examination assessing the Veteran's left ankle disability. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his left ankle disorder. The claims file should be made available to the examiner and full review of the file should be noted in the requested report. The examiner should record the full history of the identified disabilities, including the Veteran's competent account of his in-service injuries and all current symptoms. Following review of the claims file and examination of the Veteran, the examiner should provide a thorough, well-reasoned opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has a left ankle disability that was a result of or incurred during active service. The examiner should also offer an opinion as to whether the Veteran's post-service ankle disability can be linked to any in-service disability or symptomatology. In rendering this opinion, the examiner is asked to specifically address the Veteran's VA and private medical records that consistently report ongoing treatment for the Veteran's ankle disability since service, as well as the service treatment records documenting an in-service ankle injury. The examiner must also specifically discuss the Veteran's competent and credible reports of having first experienced left ankle pain following the in-service injury that has continued from that time to the present, as well as the buddy statement from the fellow service member who recalls the Veteran's in-service ankle injury. For each opinion offered, a competent and thorough rationale should accompany it. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.