Citation Nr: 21071554 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 13-31 501A DATE: November 30, 2021 REMANDED Entitlement to service connection for a bilateral ankle condition is remanded. Entitlement to service connection for a bilateral hip disability, to include as secondary to an ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1987 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in February 2021. The Board remanded this matter in December 2017 and June 2021 for additional development. The matter is now returned to the Board for further appellate review. 1. Entitlement to service connection for a bilateral ankle condition is remanded. The Veteran contends his bilateral ankle condition is due to his active-duty service. The Board remanded this matter in June 2021 to obtain a medical opinion addressing the etiology of the Veteran's bilateral ankle condition. VA provided the Veteran an examination and obtained an etiology opinion in July 2021. Unfortunately, the medical opinion is inadequate to adjudicate the Veteran's claim. The July 2021 examiner provided a negative nexus opinion, in part, because the Veteran had a preexisting ankle sprain. The December 2017 Board decision, however, reflects that the Board found the Veteran sound on entry and the presumption of soundness attached to the Veteran's ankles; therefore, the clinician should have ignored evidence of a pre-existing ankle condition. Accordingly, this opinion is based on an incorrect factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (indicating an opinion based on an incorrect factual premise has no probative value). Further, the July 2021 examiner reported the Veteran "...also had right ankle injuries twice, 5/26/1988 and 08/15/1988, which were resolving." The examiner, however, does not explain the significance of the right ankle injuries "which were resolving." Further, "resolving" leaves open the possibility that the Veteran's right ankle injuries did not completely heal. This is particularly important because the examiner also reported the Veteran did not have further ankle problems "until 2000, 10 plus years" later; however, the Veteran and his aunt submitted statements indicating the Veteran often had ankle problems and sought emergency medical treatment in 1992 for an ankle injury. The Veteran reported he attempted to obtain the medical records but was unable. See October 2021 Correspondence; see also October 2021 Buddy/Lay Statement. A remand is necessary to obtain a new opinion that provides a reasoned rationale in support of its conclusion and is based on the entire record. See Barr v. Nicholson, 21 Vet. App. 303, 311; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned). In October 2021, the Veteran's physical therapist submitted a statement indicating the Veteran's in-service bilateral ankle injuries "have been a causative factor in many..." of the Veteran's physical impairments that have developed since his active-duty service. Although the statement suggests a relationship between the Veteran's present bilateral ankle conditions and the Veteran's reports of in-service bilateral ankle injuries, it does not contain a supporting rationale and does not use the correct degree of certainty between the Veteran's current bilateral ankle conditions and his reports of in-service bilateral ankle injuries. Moreover, the nexus opinion does not specifically indicate the Veteran's in-service bilateral ankle injuries are a" causative factor" of his current bilateral ankle conditions; rather, the opinion only suggests a relationship between the in-service ankle injuries and the "...physical impairments that have developed since..." the Veteran's active-duty service. See October 2021 Private Medical Nexus Opinion. On remand, the selected clinician must consider this medical opinion. VA's duty to assist requires reasonable efforts to ensure all relevant treatment records have been obtained and associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The Veteran sought treatment for his bilateral ankle conditions from a private physical therapist at River Valley Physical Therapy; however, there is no indication VA has attempted to obtain the physical therapy records. VA must attempt to obtain these treatment records as they may be relevant to the Veteran's bilateral ankle condition claim. Id. 2. Entitlement to service connection for a bilateral hip disability, to include as secondary to an ankle disability is remanded. The Veteran contends his bilateral hip condition is related to his active-duty service, to include as due to his ankle conditions. The Board remanded this matter in June 2021 to obtain a medical opinion addressing the etiology of the Veteran's bilateral hip condition. VA provided the Veteran an examination and obtained an etiology opinion in July 2021. Unfortunately, the medical opinion is inadequate to adjudicate the Veteran's claim. The July 2021 examiner provided a negative direct service connection opinion, in part, because the Veteran's bilateral hip condition is related to his age. The examiner did not offer any further explanation nor discussion why the Veteran's bilateral hip conditions are more likely due to his age than his active-duty service. Barr, 21 Vet. App. at 311 (2007). The July 2021 examiner also provided a negative secondary service connection opinion. The Board will not address the adequacy of the secondary service connection opinion at this time because the Veteran is not service connected for the primary disability and the Board is remanding that claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). As noted above, the Veteran's physical therapist submitted a nexus opinion discussing a relationship between the Veteran's in-service bilateral ankle injuries and "...physical impairments that have developed since..." the Veteran's active-duty service. See October 2021 Private Medical Nexus Opinion. On remand, the selected clinician must address the statement in the context of secondary service connection. As noted above, the Veteran sought treatment at River Valley Physical Therapy. VA must attempt to obtain these treatment records as they may be relevant to the Veteran's bilateral hip condition claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c); see also Sullivan, 815 F.3d 786. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any physical therapy provider and for any other medical care provider or medical facility which may have records related to the Veteran's bilateral ankle condition and bilateral hip condition. Make two requests for the authorized records from any medical care provider or facility identified unless it is clear after the first request that a second request would be futile. 2. Obtain a medical opinion regarding the nature and etiology of the Veteran's bilateral ankle condition. The Veteran should only be scheduled for a new examination if deemed necessary by the selected clinician. The clinician must opine whether the Veteran's bilateral ankle condition is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, to include in-service right ankle complaints in May 1988 and August 1988. The examiner must also address the October 2021 statement from the Veteran's physical therapist indicating a relationship between the Veteran's reports of in-service ankle pain and his current physical impairments. The examiner may not dismiss the Veteran's report of ankle symptoms capable of lay observation solely because they are not recorded in contemporaneous medical records. The examiner is instructed to ignore any evidence of any pre-existing ankle condition because no ankle condition was clinically noted on the Veteran's entrance into military service. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Obtain a medical opinion regarding the nature and etiology of the Veteran's bilateral hip condition. The Veteran should only be scheduled for a new examination if deemed necessary by the selected clinician. The clinician must opine whether the Veteran's bilateral hip condition is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease. If the Veteran is found to have an ankle disability that is related to military service, THEN the examiner must also opine whether any right or left hip disability diagnosed at any time over the appeal period is at least as likely as not (1) proximately due to any service-connected ankle disability, or (2) aggravated beyond its natural progression by any service-connected ankle disability. The examiner should address the Veteran's contention that gait changes caused by his ankle condition have caused him to develop hip issues. Aggravation and causation are distinct theories and must be addressed separately and independently of each other. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. If the examiner finds the Veteran's bilateral hip condition is due to post-service factors, such as aging, rather than military service, the examiner must explain why the bilateral hip condition would be MORE likely due to aging or some other post-service factor rather than the Veteran's active-duty service. The explanation provided must be based on the specific facts of the Veteran's circumstances and not just on the population as a whole. The examiner must also address the October 2021 statement from the Veteran's physical therapist indicating a relationship between the Veteran's reports of in-service ankle pain and his current physical impairments. (Continued on the next page) All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.