Citation Nr: 21071165 Decision Date: 11/30/21 Archive Date: 11/29/21 DOCKET NO. 17-51 598 DATE: November 30, 2021 REMANDED Entitlement to service connection for a left ankle disability, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1987 to May 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. By way of history, the appeals for service connection for a back disability and the left ankle disability were remanded by the Board in a February 2020 decision. Subsequent to the 2020 Board remand development, in an October 2021 rating decision, the Veteran's claim for service connection for a back disability was granted with a 10 percent evaluation effective December 1, 2016, and 20 percent evaluation was assigned from October 5, 2021. He was also granted service connection for left lower and right lower extremity radiculopathy, both separately rated as 20 percent disabling, effective October 5, 2021. As such, this issue is no longer on appeal before the Board, though he is within the one-year time frame to file a disagreement with the evaluations if he so desires. As for the claim for service connection for a left ankle disability, although the Board sincerely regrets the additional delay, another remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran's appeal, so that he is afforded every possible consideration. See 38 U.S.C. § 5103a; 38 C.F.R. § 3.159. Specifically, although an addendum opinion was obtained in September 2020, the Board remand directives requested an updated examination. Although one was scheduled, and it was noted the Veteran was a no-show, he informed the RO that he had been in a rehabilitation center. While the RO rescheduled the back disability examination, no further attempts were made to reschedule the ankle examination. Additionally, although the September 2020 opinion was obtained, the Board finds it is not entirely adequate. The examiner opined it is more likely that the left ankle injury in service was acute and self-limited only based on the negative X-rays from February 13, 1989, and that the separation examination was negative for either ankle condition. However, the examiner failed to consider that the Veteran's STRs do show that he had continued pain after the forced plantar flexion of the left foot and that he was treated with post-splint and crutches; that on February 27, 1989 (after the February 13 X-rays), he reported he was not completely healed and requested another evaluation; and in the 1990 separation examination, though he marked "no" to joint issues, he did mark "yes" to injury and listed he had chipped bones in both his left and right ankles and was casted. This evidence is important to consider, as the examiner did not discuss or provide a rationale as to the likelihood of the ankle sprain being improperly healed, and if so, whether it was at least as likely as not further damaged due to the rigorous physical activity the Veteran endured following the injury until separation. Additionally, the examiner did not provide an opinion as to whether the Veteran's in-service sprained ankle impaired his joints so as to make him susceptible to sprain the ankle again. Further, the examiner opined the Veteran's left ankle disability was not caused or aggravated by the service-connected right ankle disability but did not include a supporting rationale. Rather, the opinion was conclusory and based on "one joint does not cause a condition of the contralateral joint" and that the left ankle was "not caused by simple gait accomodation due to the right ankle." However, the examiner did not discuss whether an abnormal gait could cause a sprain, and this opinion also fails to properly consider aggravation under 38 C.F.R. § 3.310(b). Therefore, the Board finds there was not substantial compliance with the prior remand directives, and another remand is required. Stegall, 11 Vet. App. 268, 271. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his left ankle disability. The examiner should review the claim file (including this remand) and note such review was conducted in the examination report, The examiner should address the following, with full supporting rationales: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ankle disability is related to his military service, to include the documented in-service injury and whether it was properly healed? (b.) it is at least as likely as not (50 percent or greater probability) that the Veteran's left ankle condition was caused or aggravated by the Veteran's service-connected right ankle disability? A complete explanation should be provided for all opinions on causation AND aggravation. The examiner is advised that aggravation of a condition for legal purposes is defined as any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. The examiner is asked to consider the January 1989 STRs showing a forced plantar flexion with continued pain and tenderness and that the Veteran was in a splint, and that following the X-rays and removal of the splint, he requested another evaluation due to continued pain. The examiner should also consider that the Veteran re-injured and twisted his ankle again (though it is not clear which one) in 2000; and his VA medical records between 2000 and 2016 showed his reports of chronic bilateral ankle pain. The examiner's attention is invited to the Veteran's statements concerning the onset of his claimed disability, to specifically include the sworn 2019 Board hearing, where he testified that he wore a brace on both ankles; he favored his right ankle and both ankles have worsened since the initial injuries from service; stated when he wakes in the morning his ankles are stiff and walking hurts them, and he takes medication and wears a brace all the time. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran's reports of symptoms and history is inadequate. If, however, there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.