Citation Nr: 21067108 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-21 610 DATE: November 3, 2021 ISSUE Entitlement to service connection for a left ankle disability, to include as due to service-connected disabilities. REMANDED Entitlement to service connection for a left ankle disability, to include as due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from March 1984 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Following the January 2018 rating decision, which denied entitlement to service connection for a left ankle disability, the Veteran filed a timely Notice of Disagreement (NOD) in February 2018, through his Attorney. The Veteran was issued a statement of the case (SOC), and in January 2020, the Veteran's Attorney filed a VA Form 9, appealing the Veteran's claim to the Board. In October 2020, March 2021, and most recently in August 2021, the Board remanded this matter for further development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Despite the repeated remands, the Board finds that additional evidentiary development is again required before the claim on appeal is adjudicated. Entitlement to service connection for a left ankle disability, to include as due to service-connected disabilities is remanded. The Veteran has claimed that his left ankle disability is proximately due to or aggravated by his service-connected disabilities. The Veteran's Attorney has argued that the Veteran's service-connected disabilities "have caused antalgic gait, which has then caused additional joint problems." See February 2018 NOD. Service connection may 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). As noted in the Board's prior remands, the Veteran has a current diagnosis of a left ankle sprain. See December 2020 VA examination. The Veteran is also currently service-connected for a number of disabilities, including lumbago with degenerative arthritis of the lumbar spine, a left knee contusion with meniscal tear, sciatic lumbar radiculopathy of the bilateral lower extremities, left knee instability, bilateral hip strain with painful motion, status post right ankle reconstruction, right knee degenerative arthritis, right knee instability, bilateral hip strain with limitation of flexion, and bilateral hip strain affecting abduction and rotation. See February 2021 Rating Code sheet. Essentially, the Veteran has various service-connected musculoskeletal disabilities to the bilateral hips, the bilateral knees, the right ankle, the lumbar spine, as well as bilateral lumbar radiculopathies. The Veteran has argued that these disabilities, either on their own or collectively, have caused and/or aggravated his current left ankle disability. Chronologically, the Veteran's claim was remanded by the Board in October 2020, as the Veteran had not been given a VA examination for his left ankle disability, and an etiological opinion had not been rendered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The Veteran was given a VA examination in December 2020, but in a Decision from March 2021, the Board noted that the etiological rationale provided by the December 2020 was insufficient, as it was a "broad conclusory statement." The VA examination was thus deemed inadequate, and the claim was remanded for an additional VA examination. That VA examination was then given in March 2021. The August 2021 Board Decision found that an additional addendum opinion was again necessary, as the March 2021 VA examiner's opinion was incomplete. In brief, the March 2021 examiner provided a negative etiological opinion, but did state that the service-connected disabilities "would not impact another limb unless it resulted in ... nerve damage causing partial paralysis." The examiner also noted that an additional risk factor for ankle sprains is deficiencies in balance. The Board found that, despite the findings of the March 2021 examiner, they did not acknowledge that the Veteran had in fact been noted to have deficiencies in balance, and that he is service-connected for bilateral lower extremity radiculopathy. Thus, the Veteran's claim was remanded again for a VA addendum opinion. That VA addendum opinion was rendered in September 2021. The Board notes that the September 2021 VA report has essentially copied, word for word, the opinion provided by the March 2021 examiner. That opinion then copies the list of the Veteran's service-connected disabilities, and then opines that the left ankle disability is not proximately due to, nor aggravated by, any of the service-connected disabilities. The September 2021 report did provide an additional paragraph in response to the Board previously pointing out that the Veteran was service-connected for bilateral lower extremity radiculopathies. That paragraph states that the "incomplete paralysis" of the nerve noted in the [disability benefits questionnaire] is a term used for rating purposes and is not a medical condition. The treatment records reflect Veteran has a radiculopathy; treatment records are silent to support objective evidence of a true paralysis. The September 2021 report also did not discuss the Veteran's balance and instability issues, which had been directed by the Board. In consideration of the above, the Board finds that the September 2021 VA addendum opinion is inadequate. To begin, the opinion is copied, essentially word for word, from the prior March 2021 statement. No additional analysis nor discussion is added to supplement the prior opinion, particularly as it relates to the Veteran's altered gait and imbalance issues. Second, the paragraph that has been added addresses only a portion of what the Board had directed; the Veteran's service-connected bilateral radiculopathies are mentioned, but his instability and imbalance issues are not. Third, as it relates to those bilateral radiculopathies, the examiner essentially denied that the Veteran had the actual disabilities, instead noting that the radiculopathies were only for ratings purposes and that they were "not a medical condition." It is also unclear what the examiner means when they deny that the Veteran has "objective evidence of a true paralysis." Finally, while it was not specifically directed by the Board's prior remand, the examiner did not address whether it is at least as likely as not that the Veteran's service-connected disabilities, when considered together, may have aggravated his left ankle disability. The opinion provided only addresses the service-connected disabilities individually. For each of these reasons, the Board finds that the September 2021 VA addendum opinion is inadequate. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran's claim must be forwarded to a VA orthopedist, or other suitable professional, for an etiological opinion based on the Veteran's theory of entitlement to service connection on a secondary basis. The matters are REMANDED for the following action: 1. Forward the Veteran's file to a VA orthopedist, or other suitable specialist, to obtain a VA addendum opinion addressing the nature and etiology of the Veteran's left ankle disability. The claims folder, including a copy of this Remand, must be made available to the examiner and such review should be noted in the examination report. The Veteran should be scheduled for a VA examination if deemed necessary for the promulgation of the VA etiological opinion. The VA examiner is to provide an opinion as to the following: (a.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's left ankle disability was caused (in whole or in part) by a service-connected disability (lumbar spine, bilateral knee, bilateral hip, and right ankle disabilities, and bilateral lower extremity lumbar radiculopathy), or by the combination of those service-connected disabilities, to include treatment for any such disability? (b.) If not, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's left ankle disability is aggravated by his service-connected disabilities, or by the combination of those service-connected disabilities, to include treatment for any such disability? The examiner is asked to address the March 2021 VA medical opinion which notes that partial paralysis of a nerve could impact the ankle and additionally that a risk factor of ankle sprains is deficiencies in balance. The examiner's attention is particularly drawn to the December 2020 VA peripheral nerves examination report, which shows incomplete paralysis of the sciatic nerve and that the Veteran reported left side instability, balance issues and that he cannot stand on his own very well. The examiner is reminded that the Veteran and his Attorney have argued that the Veteran's service-connected disabilities, either separately or collectively, have caused the Veteran to walk with an altered gait, and that his balance problems have caused a worsening of his left ankle disability. The term "aggravation" means a worsening of a disability beyond its natural progression, regardless of permanence. If the Veteran's left ankle disability is aggravated by a service-connected disability, or by the combination of his service-connected disabilities, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. The examiner is asked to not simply copy the prior medical opinions of record. If the examiner finds that he or she cannot provide an opinion without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). See Jones v. Shinseki, 23 Vet. App. 382, 392-93 (2011). 2. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's claim. If the requested benefit remains denied, the Veteran and his Attorney should be provided with a Supplemental Statement of the Case and an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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.