Citation Nr: 21069679 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 12-05 940 DATE: November 19, 2021 REMANDED Entitlement to service connection for a left ankle disability, to include as secondary to service-connected left knee and lumbar spine disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1991 to June 1994 with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Minnesota Army National Guard. This matter was most recently remanded by the Board of Veterans' Appeals (Board) in January 2021 for further evidentiary development. After carefully considering this matter, and for reasons expressed immediately below, the Board finds that this case must again be remanded for further development. The Board sincerely regrets the delay associated with this remand but finds that a remand is necessary to ensure that the Veteran is accorded full compliance with VA's statutory duty to assist. In this regard, in August 2021, the Board remanded the Veteran's claim for service connection for residuals of a left foot injury. That issue remains in remand status and will, thus, be addressed in a separate Board decision. Service Connection Left Ankle The Veteran contends that direct service connection, and alternatively secondary service connection, for his left ankle disability, is warranted. Throughout the appeal period, the Veteran has contended that his left ankle had been hurting him since an April 2009 incident in which he fell off a tank. However, service records do not show complaints of, or treatments for, left ankle problems. Pursuant to the Board's January 2021 remand, a new VA medical opinion was obtained in June 2021. Unfortunately, the Board finds this examination to be inadequate. Specifically, while the examiner provided a negative nexus opinion and discussed evidence for and against direct and secondary service connection, the opinion does not address pertinent medical records or the Veteran's lay statements regarding the onset of his left ankle condition. In this regard, the Board acknowledges that the June 2021 VA examiner opined that the Veteran's left ankle condition was not directly related to his active service. The examiner explained that there is no record of left ankle treatment or complaints during active service (between November 1991 and June 1994). Likewise, there were no records for a left ankle condition during reserve time. However, the examiner acknowledged that a September 2012 podiatry consultation indicated that the Veteran's left ankle condition onset from a fall in 2012. As such, the examiner concluded that it was less likely than not that the left ankle condition was incurred in, or caused by, active service. Further, the examiner marked the box indicating that the Veteran's left ankle condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that there were no treatment records or medical notes indicating a left ankle disability proximately due to, or aggravated by, any of the Veteran's service-connected disabilities, to include the service-connected back and left knee disabilities. According to the examiner, the left knee joint or lumbar spine are separate joints that do not affect the left ankle. However, in providing these opinions, the examiner failed to address the treatment records dated in June 2004, April 2006, and February 2008 which reflect the Veteran's complaints regarding his left ankle; the VA treatment records noting limp, antalgic gait and use of a cane; all diagnoses regarding the left ankle during the appeal period, to include degenerative changes, tendonitis, sprain, and osteoarthritis of the left ankle; and the Veteran's lay statements (to include ones noting that his left ankle had been hurting him since an April 2009 incident in which he fell off a tank). Also, in providing the secondary service connection opinion, the examiner mistakenly indicated that the Veteran's left ankle "clearly and unmistakably existed prior to service." In sum, the examiner did not address pertinent evidence related to the Veteran's left ankle claim as instructed by the January 2021 Board remand. Instead, the examiner, in part, relied on the absence of reports in the record as a basis for the opinion regarding direct service connection. Accordingly, the Board finds the June 2021 VA opinion to be inadequate for adjudication purposes. As such, an additional opinion must be obtained. Given the inadequacies of the June 2021 VA opinions, a remand for corrective action is necessary, to include obtaining addendum opinions that adequately addresses the current nature, extent, and etiology of his claimed left ankle condition. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Accordingly, this matter is REMANDED for the following: Schedule the Veteran for an appropriate examination to determine the nature and etiology of his left ankle condition. The claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. All indicated studies should be performed. The examiner is asked to opine: (a.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left ankle disability had onset in, or is otherwise related to, the Veteran's active service, or is caused by disease or injury during a period of ACDUTRA or an injury during a period of INACDUTRA. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left ankle disability is proximately due to, or aggravated (made worse) by, either the service-connected medial and lateral joint instability of the left knee or the service-connected degenerative disc disease of the lumbar spine at L5 S1. In providing these opinions, the examiner must address: (1) the treatment records dated in June 2004, April 2006, and February 2008, which reflect the Veteran's left ankle complaints; (2) VA treatment records noting his limp, antalgic gait, and use of a cane; (3) all left ankle diagnoses during appeal period, including degenerative changes, tendonitis, sprain, and osteoarthritis; and (4) his lay statements. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt any statements or histories provided by the Veteran regarding any of his claimed conditions, the examiner should state this and provide a fully reasoned explanation. Otherwise, the Veteran's statements should be considered competent and credible. The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 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 the VA medical examination 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 J. R. Bobb, 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.