Citation Nr: 21071241 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-25 561 DATE: November 30, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for left ankle disability is remanded. The issue of entitlement to service connection for a knee condition, secondary to the service-connected left ankle disability is remanded. The issue of entitlement to service connection for a vascular condition of the left ankle, secondary to the service-connected left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2007 to August 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). There was an April 2021 Board hearing before the undersigned Veterans Law Judge (VLJ) and the transcript is of record. 1. Entitlement to an initial rating in excess of 10 percent for left ankle disability is remanded. VA has a duty to provide a contemporaneous examination when the evidence indicates the current rating may be incorrect, including when a Veteran states the condition has worsened since the last VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown,6 Vet. App. 377, 381 (1994) (holding that, in a claim for an increased rating, the Board erred by relying on a 23-month-old examination where the appellant submitted evidence to indicate that there had been a material change in his disability since that examination). Here, the Veteran indicated that his left ankle disability has worsened since the 2015 VA examination. See 4/28/2021 Hearing Transcript. Therefore, remand to obtain a contemporaneous examination and opinion is warranted. 2. The issue of entitlement to service connection for a knee condition, secondary to the service-connected left ankle disability is remanded. Under 38 C.F.R. § 3.155(d)(2), the Board is required to refer to the AOJ for adjudication in the first instance claims for entitlement to secondary service connection that are reasonably raised during the adjudication of a formally initiated increased rating claim, regardless of whether a Veteran files a separate, formal claim for entitlement to secondary service connection. See Bailey v. Wilkie, 33 Vet. App. 188 (2021). According to the Veteran, favoring one leg due to his service-connected left ankle condition has led to soreness in his knees. 5/25/2016 Form 9. Therefore, remand to evaluate the Veteran's claim for entitlement to service connection for a knee condition secondary to his service-connected left ankle disability is required. 3. The issue of entitlement to service connection for a vascular condition of the left ankle, secondary to the service-connected left ankle disability is remanded. Similarly, the Veteran has brought circulation issues in his left ankle to bear during adjudication of the overarching claim for an increased rating for his service-connected left ankle disability. See 5/25/2016 Form 9; 4/28/2021 Hearing Transcript (the Veteran referenced swelling of his ankle and an imaging study that showed blood pooling in his ankle). The Veteran's contention regarding a circulation issue was also substantiated by the record which referenced a computed tomography (CT) scan in December 2020 that detected blood pooling in the left ankle. See 4/28/2021 Medical Treatment Record-Government Facility. Thus, remand to evaluate the Veteran's claim for entitlement to service connection for left ankle circulation issues secondary to his service-connected left ankle disability is needed. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the current severity of his service-connected left ankle disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without 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). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, throughout the entirety of the appeal period that is, since November 2015. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without 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). The examiner must also attempt to elicit information regarding limitations to the Veteran's range of motion due to use of a prescribed Arizona AFO ankle foot orthoses and past limitations to his range of motion due to use of an ACE bandage or compression brace. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible. Please comment as to the angle at which the left ankle would be fixed both when the Arizona AFO ankle orthoses is in use and when an ACE bandage is in use. If it is not possible to provide a specific measurement without 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). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his bilateral knee condition. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. After examining the Veteran and considering his reported history, including a review of the claims file, the clinician should provide an opinion regarding the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's bilateral knee condition is associated with his left ankle disability? (a.) In the event that the criteria for a diagnosis of a bilateral knee disability are not met, please specifically state whether there is any functional impairment associated with the Veteran's complaints of knee pain. Please complete the "Functional Impact" section of the report of examination. (b.) If there is functional impairment, please offer an opinion as to whether it is at least as likely as not that such impairment is either 1) caused or 2) aggravated by the Veteran's service-connected left ankle disability. (c.) If you determine that any functional impairment associated with the Veteran's right and left knees was aggravated by his service-connected left ankle disability, please estimate the degree of aggravation beyond the baseline level of the knee impairment that is caused by the service-connected left ankle disability. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort 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). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his left ankle vascular condition. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. After examining the Veteran and considering his reported history, including a review of the claims file, the clinician should provide an opinion regarding the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's left ankle vascular condition is associated with his left ankle disability? (a.) In the event that the criteria for a diagnosis of a vascular disability are not met, please specifically state whether there is any functional impairment associated with the Veteran's complaints of swelling and blood pooling in his left ankle. Please complete the "Functional Impact" section of the report of examination. (b.) If there is functional impairment, please offer an opinion as to whether it is at least as likely as not that such impairment is either 1) caused or 2) aggravated by the Veteran's service-connected left ankle disability. (c.) If you determine that any functional impairment associated with the swelling and blood pooling was aggravated by his service-connected left ankle disability, please estimate the degree of aggravation beyond the baseline level of the swelling impairment that is caused by the service-connected left ankle disability. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort 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). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.