Citation Nr: 21072640 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-33 023 DATE: December 3, 2021 ORDER Entitlement to an effective date of January 23, 1981 for the award of service connection for residuals, fracture of left ankle with traumatic arthritis (left ankle disability) is granted. From January 23, 1981 to April 25, 2012, an initial rating of at least 10 percent for a left ankle disability is granted. From June 16, 2015 to July 25, 2017, a separate 20 percent rating for a left foot disability is granted. REMANDED From January 23, 1981, entitlement to an initial rating in excess of 10 percent for a left ankle disability is remanded. Entitlement to an increased initial rating for a left foot disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression, as secondary to a left ankle disability is remanded. Entitlement to service connection for a left knee disability as secondary to a left ankle disability is remanded. Entitlement to an effective date earlier than January 23, 1981 for the award of service connection for a left ankle disability is remanded. FINDINGS OF FACT 1. An April 1975 rating decision explicitly notified the Veteran that his claim of entitlement to service connection for a left ankle disability was denied. The Veteran did not timely appeal this decision and new and material evidence was not actually or constructively received within one year of issuance of this decision. 2. The subsequent date of claim of entitlement to service connection for a left ankle disability is January 23, 1981, and entitlement to the benefit sought arose not later than the date of claim. 3. The baseline severity of the Veteran's left ankle disability is zero percent disabling and his left ankle disability has been manifested by painful motion since at least January 23, 1981. 4. From at least June 16, 2015 to July 25, 2017, the Veteran's left foot disability has been manifested by symptoms that more closely approximated at least unilateral claw foot with all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right ankle, shortened plantar facia, and marked tenderness under metatarsal heads. CONCLUSIONS OF LAW 1. The April 1975 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. The criteria for an effective date of January 23, 1981 for the award of service connection for a left ankle disability are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.157 (as in effect prior to March 24, 2015), 3.400. 3. From January 23, 1981 to April 25, 2012, the criteria for entitlement to an initial rating of at least 10 percent for a left ankle disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.22, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 4. From June 16, 2015 to July 25, 2017, the criteria for entitlement to an initial rating of at least 20 percent for a left foot disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5278. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1972 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In April 2021, the Veteran and his daughter testified at a virtual hearing before the undersigned. The Board has bifurcated the appeal seeking an earlier effective date and increased rating for a left ankle disability so as to allow a partial grant of the benefit sought on appeal without delay. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim is generally within the Board's discretion). The issue of entitlement to compensation for a left foot disability, left knee disability, and an acquired psychiatric disorder is raised by the record and is part of the increased rating claim on appeal. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019) (Board may need to consider schedular rating tools, including secondary service connection, as part of an increased rating claim). If the Veteran wishes to file a claim for service connection for a right ankle disability, he should work with his representative to file a claim on the appropriate VA form. 1. Entitlement to an effective date of January 23, 1981 for the award of service connection for a left ankle disability is granted. The Veteran asserts that he is entitled to an effective date of service connection for his left ankle disability that relates back to his original disability claim, which was filed in 1975. As discussed below, an earlier effective date is warranted, but the Board cannot yet adjudicate his claim in full. Briefly, an April 1975 rating decision denying service connection for a left ankle disability is final, but a January 23, 1981 request to reopen the claim was not explicitly denied and remained pending. See Ruel v. Wilkie, 918 F.3d 939 (Fed. Cir. 2019). Although subsequent rating decisions adjudicated requests to reopen, they did not consider new and material evidence that was constructively received by the VA in 1989 and 2009. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). Thus, the Veteran's 1981 claim remained pending. See Davis v. McDonough, 34 Vet. App. 131, 136-137 (2021). As the Veteran's entitlement to benefits had manifested by that date, the correct date of service connection is January 23, 1981, unless CUE is shown. Law and Regulations Governing Effective Dates The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). Generally, the effective date of an award of increased compensation "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). VA regulations provide that a claimant will be provided notice of any decisions. See 38 U.S.C. § 5104; 38 C.F.R. § 3.103. Once notice of a decision has been provided, under VA's legacy appeals system (which governs this case) a claimant generally has one year to appeal a decision or to submit new and material evidence. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156. On March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). Prior to March 24, 2015, VA allowed for the filing of informal claims without any particular format or requirements aside from (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); 38 C.F.R. §§ 3.1 (p), 3.155 (as in effect prior to March 24, 2015). Decisions of the AOJ are final, subject to certain exceptions. See 38 U.S.C. § 7105; 38 C.F.R. § 3.104. These exceptions include when new and material evidence is received within one year of a decision under VA's legacy appeals system, when an appeal is timely filed or review of the decision is requested under VA's modernized appeals system, and when a decision is revised on the basis of clear and unmistakable error (CUE). Additionally, a claim may be reconsidered when additional service department records are received that relate to the reason for the prior denial, and if this reconsideration results in the claim being granted than an effective date may be assigned that relates back to the prior date of claim. VA's modernized appeals system went into effect on February 19, 2019. Prior to February 19, 2019, VA's legacy appeals system applied, and the legacy appeals system applies to this case. Under VA's legacy appeals system, new and material evidence that was received within one year of a decision was considered to have been submitted in relation to the prior claim. New and material evidence is evidence that is neither cumulative nor redundant of the evidence of record and that relates to an unestablished fact necessary to establish entitlement to a benefit. See 38 C.F.R. § 3.156(b). VA has constructive possession of a veteran's VA treatment records when they are generated, even if a veteran does not alert VA adjudicators to the existence of the new records. If these records contain new and material evidence and are generated within one year after a legacy VA decision, the records are considered received in connection with the VA decision. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). Law and Regulations Applied to the Facts of this Matter The Veteran filed an original claim of entitlement to service connection for a left ankle disability in March 1975. This claim was denied pursuant to an April 1975 rating decision, which determined that the Veteran's left ankle disability pre-existed service and was not aggravated by service. See April 1975 Rating Decision. The Veteran was notified of this decision in April 1975, and he did not submit new or material evidence within one year of the date of notification. In this regard, the Veteran received VA treatment in January 1975 and this evidence was considered by the April 1975 rating decision. Moreover, he received VA treatment in September 1976, but this treatment was not for an ankle disability and was more than one year after the Veteran was notified of the April 1975 rating decision. Thus, the April 1975 rating decision is final, and can only be revised if CUE is shown. On January 23, 1981, the VA received the Veteran's formal claim of entitlement to Compensation or Pension. He described the nature of his disability as a left ankle condition and left foot and toes and noted "this [is] for [service connection]." He also noted a back condition and a lung condition. On February 13, 1981, the AOJ requested that the Veteran submit evidence in support of his claim. In April 1981, the Veteran replied that he could not afford a private physician and he needed an appointment for an examination at a VA facility. In April 1981, the AOJ sent correspondence stating that it was in receipt of his claim and that a review of his file reveals that he was previously denied service connection pursuant to an April 1975 rating decision. The correspondence further stated that the Veteran did not have 90 days of active service and thus did not qualify for pension benefits. The letter concluded by stating "[w]e are sorry if our letter of February 13, 1981, has caused you undue hardship." See April 1981 Notification Letter. The April 1981 notification letter did not provide the Veteran with adequate notice that his January 1981 claim for compensation had been denied. The law then in effect required VA to notify claimants of any decision affecting the payment of benefits, as well as the right to a hearing, the right to initiate an appeal, and the time period in which to file an appeal. See 38 C.F.R. § 3.103(e) (1981). The present facts are similar to those in Ruel v. Wilkie, 918 F.3d 939 (Fed. Cir. 2019), where the court held that a 1984 letter from the AOJ did not explicitly deny a claim when it stated that "[t]he evidence does not show that the veteran's death was due to a service connected condition." Here, the April 1981 rating decision did not state that the Veteran's request to reopen the claim for compensation had been denied and it did not explain that the Veteran had the right to a hearing or an appeal. Thus, the January 1981 claim remained pending. The Board emphasizes that although the Veteran did not submit the records requested in the February 1981 development letter, he did send a response requesting VA assistance in obtaining medical evidence and thus he did not abandon his claim. A September 1989 VA treatment record shows that the Veteran sought emergency treatment for his left ankle. He reported pain and swelling on and off since 1972 and reported that he injured his left ankle in 1972 while in service. See September 26, 1989 VA Treatment Records. These records show the Veteran's reports of an in-service injury as well as the presence of a current disability that manifested in service and thus relate to unestablished facts necessary to substantiate a claim of entitlement to service connection. Hence, this evidence is new and material. Moreover, VA adjudicators were in constructive possession of these treatment records as soon as they were created. See Lang, 971 F.3d 1348 (Fed. Cir. 2020). In January 2009, the Veteran filed an informal request to reopen his claim. A May 2009 rating decision explained that service connection for a left ankle disability had been denied in April 1975 and the April 1975 rating decision was final. The decision explained that the Veteran's claim "remained in its present disallowance status" since there was "no evidence" submitted showing that the Veteran's left ankle disability was permanently worsened by service. Thus, this decision did not reopen the merits of the Veteran's claim. Notably, the May 2009 rating decision did not show that the AOJ was aware of the Veteran's 1989 VA treatment records, and the code sheet attached to the May 2009 rating decision explicitly notes that a search for VA progress notes was negative. The Veteran filed a timely appeal of the May 2009 rating decision. A Statement of the Case (SOC) was issued in April 2010 that reiterated the May 2009 rating decision's reasons for denial. The Veteran did not perfect a timely appeal. However, the April 2010 SOC did not address the new and material evidence obtained in 1989. Like the May 2009 rating decision, the April 2010 SOC does not show that the VA was aware of the Veteran's 1989 VA treatment records or current progress notes. Moreover, a November 30, 2009 VA treatment record included the Veteran's report of re-injuring his pre-existing left ankle disability in service. See November 30, 2009 VA Treatment Note. The AOJ was constructively in possession of this new and material evidence. See Lang, 971 F.3d 1348. When new and material evidence is received within an appeal period or prior to the issuance of an appellate decision, the effective date for any resulting award of benefits will be as though the former decision had not been rendered. See Davis, 34 Vet. App. 131, 136. Indeed, "it must be clear that VA considered and applied [the rule governing submission of new and material evidence] when warranted." Id. VA is required to respond directly to a submission received during an appeal period, and until it does so the claim at issue remains open. Id. at 137. However, no decision of record had yet considered the September 1989 or November 2009 VA treatment records. In July 2010, the Veteran again requested that the VA reopen his claim, and a November 2010 rating decision denied this request and stated this his claim was "not reopened" because new and material evidence had not been received. The decision does not indicate that it secured the Veteran's VA treatment records. The Veteran was notified of this decision on November 18, 2010. Although the Veteran did not file a timely Notice of Disagreement (NOD) with the November 2010 rating decision and new and material evidence was not actually or constructively received within one year of that decision, no decision of record had considered the new and material evidence that had been constructively received in 1989 or 2009, and thus the Veteran's 1981 claim to reopen remained pending. The Board acknowledges that on November 10, 2011, the Veteran submitted a request to reopen his "claim disability non connect claim also pension." See December 2011 VA Form 21-4138 (erroneously dated in the claims file). Although received within one year of the November 2010 rating decision, this statement does not express disagreement with the November 2010 rating decision and thus it is not a NOD under the laws then in effect. However, as noted above, the Veteran's 1981 claim nonetheless remained pending. A February 2013 rating decision again denied the request to reopen the claim of service connection for a left ankle disability and the Veteran initiated and perfected a Board appeal. Notably, the February 2013 decision was the first decision since 1975 to state that it had considered the Veteran's VA treatment records. The AOJ granted the Veteran's appeal in May 2016 based on a VA medical opinion that noted the Veteran's pattern of seeking left ankle treatment since his discharge from the Marines and awarded service connection for a left ankle disability effective April 25, 2012. This appeal followed. Thus, as the present matter relates back to the Veteran's 1981 claim, the final question is the date that the Veteran's entitlement to benefits arose. Here, service connection was awarded based on aggravation of a disability that pre-existed service, and the evidence shows that the Veteran's left ankle disability has been present since service. Accordingly, entitlement to benefits had manifested by the January 23, 1981 date of claim, and thus that is the correct date of service connection. The Board acknowledges that the claim was granted based in part on medical evidence that was created in 2015 and 2016. However, the key question when considering effective dates is not when the evidence necessary to grant the claim was received or created; instead, the key question is when did the disability manifest. Here, the evidence shows that the Veteran's left ankle disability has been present since service. With respect to entitlement to service connection prior to January 23, 1981, this is addressed below in the remand section. 2. From January 23, 1981 to April 25, 2012, an initial rating of at least 10 percent for a left ankle disability is granted. The Veteran is currently in receipt of an initial 10 percent rating for his left ankle disability effective April 25, 2012. The period on appeal is from January 23, 1981, the effective date of service connection. The rating criteria for ankles was amended during the pendency of the appeal. The Board may not retroactively apply new rating criteria prior to the date of amendment. However, prospectively from the date of amendment the Board should apply the more favorable of the historical or amended criteria. The Board will limit the present discussion to the historical criteria, as the Board has bifurcated this issue and will revisit it post-remand. Limitation of motion of the ankle is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271. A 10 percent rating is warranted for moderate limitation of motion of the ankle. A maximum schedular 20 percent rating is warranted for marked limitation of motion. VA regulations provide that actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating under any Diagnostic Code. See 38 C.F.R. § 4.59. When service connection is granted based on aggravation of a pre-existing disability, the rating is only based on the level of disability over and above baseline severity. Thus, the baseline severity of the disability is deducted from the current severity. See 38 C.F.R. § 4.22. Here, the evidence shows that the Veteran's left ankle disability has been manifested by pain throughout the period on appeal. See, e.g., January 25, 1975 VA Treatment Note (noting joint pain due to a broken left tibia and difficulty extending toes); September 26, 1989 VA Emergency Care Note (history of left ankle pain and swelling). This is consistent with a severity of at least 10 percent is warranted from January 23, 1981 to April 25, 2012. Moreover, the AOJ has determined that the baseline severity of disability was zero percent disabling, and thus no deduction is necessary. See May 2016 Rating Decision. The Board adopts this favorable decision as it is not clearly erroneous. The issue of entitlement to a higher rating is addressed below in the remand section. 3. From June 16, 2015 to July 25, 2017, a separate 20 percent rating for a left foot disability is granted. At the Board hearing, the Veteran discussed foot pain related to his ankle disability. See, e.g., Hearing Transcript at 6-7, 11-12. The issue of compensation for the Veteran's left foot disability is part of the increased initial rating claim on appeal. In this regard, some examiners of record characterized the Veteran's claim as a left foot disability, and the evidence shows that the Veteran's left foot disability is etiologically related to his ankle disability. See, e.g., June 2015 VA Examination Report; April 2018 Medical Opinion. Moreover, the Veteran's February 2013 NOD explicitly indicates that his disagreement is with the denial of compensation for his "left leg and ankle." See February 2013 NOD. Indeed, the Veteran's January 1981 claim noted a left ankle condition, as well as a left foot and toes condition. Initially, the Board acknowledges that during the pendency of this appeal, the AOJ separately awarded service connection for a left foot disability (characterized by the AOJ as hammer toes) and the Veteran did not appeal the initial rating or effective date assigned by that decision. See December 2017 Rating Decision. However, once a veteran has initiated an appeal, the failure to separately appeal an issue that is separately adjudicated but arises from the original claim on appeal does not remove that issue from appellate status. See Grimes v. McDonough, 34 Vet. App. 84 (2021); see also Harper v. Wilkie, 30 Vet. App. 356 (2018). The Veteran is currently in receipt of a 20 percent rating for left foot hammer toes under 38 C.F.R. § 4.71a, Diagnostic Code 5278 (claw foot, acquired) effective July 25, 2017. Under Diagnostic Code 5278, a maximum schedular 30 percent rating is warranted for unilateral claw foot (pes cavus) with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity. A 20 percent rating is warranted for unilateral claw foot with all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right ankle, shortened plantar facia, and marked tenderness under metatarsal heads. A 10 percent rating is warranted when the great toe is dorsiflexed, with some limitation of dorsiflexion at the ankle and definite tenderness under metatarsal heads. The AOJ has determined that the Veteran meets the criteria for a 20 percent rating under Diagnostic Code 5278. See July 2018 Rating Decision. This decision is not clearly erroneous and thus the Board adopts it. In this regard, while the AOJ characterized the Veteran's disability as "hammer toes," the Veteran is also shown to have claw foot. See, e.g., August 2017 Foot Examination Report (noting a "claw like deformity of all digits of the left foot"). Moreover, additional criteria for a 20 percent rating are shown across in June 2015 Foot Examination report. See, e.g., June 2015 Foot Examination Report at 4 (metatarsalgia), 6 (less movement than normal due to adhesions, tendon tie ups, etc., as well as pain on weight bearing). The current record shows that the Veteran's current level of left foot symptomatology has persisted since at least June 16, 2015. Accordingly, a separate 20 percent rating is warranted from June 16, 2015 through July 25, 2017. The issue of entitlement to an increased rating is addressed below in the remand section. REASONS FOR REMAND 4. From January 23, 1981, entitlement to an initial rating in excess of 10 percent for a left ankle disability is remanded. At the Board hearing, the Veteran testified that his left ankle disability has worsened since he was last examined. On remand, he should be afforded an updated examination. Additionally, the most recent examiner failed to adequately describe the functional limitation resulting from flare-ups, and this should be accomplished on remand. Updated VA treatment records should also be secured. 5. Entitlement to an increased initial rating for a left foot disability is remanded. On remand, the Veteran should be afforded an updated examination of his left foot disability based on his testimony of worsening of his disability. 6. Entitlement to service connection for an acquired psychiatric disorder, to include depression, as secondary to a left ankle disability is remanded. 7. Entitlement to service connection for a left knee disability as secondary to a left ankle disability is remanded. At the Board hearing, the issue of entitlement to service connection for a left knee disability and acquired psychiatric disorder was raised as part of the increased rating claim on appeal. In this regard, the AOJ sought examinations and medical opinions as to whether the Veteran has an acquired psychiatric disorder and left knee disability related to his left ankle disability, but these are not adequate. While these issues were separately denied by the AOJ and no appeal was perfected, they remain in appellate status as part of the underlying appeal as to the right ankle disability. On remand, the Veteran should be afforded examinations as to the nature and etiology of any left knee disability and acquired psychiatric disorder and medical opinions should be secured as to whether any disability is related to his left ankle disability. 8. Entitlement to an effective date earlier than January 23, 1981 for the award of service connection for a left ankle disability is remanded. At the Board hearing, the Board advised the Veteran that remand was necessary for the AOJ to consider his CUE claim as an aspect of his earlier effective date claim. On remand, the AOJ should consider in the first instance the CUE theory that the service connection based on aggravation was warranted when the April 1975 rating decision was issued. The Board observes that the Veteran separately raised a CUE theory based on the assertion that his claim was granted based on the same evidence of record at the time of the original denial. See September 2016 VA Form 21-526b; December 2016 VA Form 21-4138; February 2017 Hearing Testimony. This theory was addressed by the April 2018 SOC, although it deemed this theory "invalid." However, the Board will defer action and resolve all remaining effective date questions post-remand. Moreover, while the Board stated at the hearing that remand was necessary to secure historical VA treatment records, these were obtained by the AOJ during the pendency of this appeal and thus remand on this basis is not necessary. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records, if any. 2. After completing #1, schedule the Veteran for an examination to determine the current nature and severity of his left ankle disability. The claims file should be made available to and be reviewed by the examiner. All findings should be reported in detail. The examiner should address the following: (a) Assess the severity of the Veteran's left ankle disability. (b) Provide an opinion describing functional impairment the Veteran's left ankle disability due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale must be provided for all opinions. If the requested opinions cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. 3. After completing #1, schedule the Veteran for an examination to determine the nature and severity of his left foot disability. The claims file should be made available to and be reviewed by the examiner. All findings should be reported in detail. The examiner should assess the current severity of the Veteran's left foot disability. A complete rationale must be provided for all opinions. If the requested opinions cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. 4. After completing #1, schedule the Veteran for an examination to determine the nature and etiology of any acquired psychiatric disorder. The claims file should be made available to and be reviewed by the examiner. Any necessary testing should be performed. The examiner should address the following: (a) Diagnose all current acquired psychiatric disorders during the appeal, even if currently resolved. In addressing this question, the examiner must discuss the Veteran's prior diagnosis of recurrent depressive disorder. See, e.g., August 15, 2018 VA Treatment Note (Past Medical History). (b) For each disorder diagnosed in sub-part (a), please opine as to whether it is at least as likely as not (50 percent probability or higher) that such disorder is proximately due to the Veteran's left ankle disorder, to include as a result of chronic left pain. (c) For each disorder diagnosed in sub-part (a), please opine as to whether it is at least as likely as not (50 percent probability or higher) that such disorder has been aggravated (worsened beyond natural progression) by the Veteran's service-connected left ankle disability, to include as a result of chronic left pain. A complete rationale must be provided for all opinions. If the requested opinions cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. 5. After completing #1, schedule the Veteran for an examination to determine the nature and etiology of his left knee disability. The claims file should be made available to and be reviewed by the examiner. Any necessary testing should be performed. The examiner should address the following: (a) Diagnose all current left knee disabilities present during the period on appeal. For the purposes of this question, pain that is productive of a functional impairment is a current disability, even in the absence of diagnosed pathology. (b) For each disorder diagnosed in sub-part (a), please opine as to whether it is at least as likely as not (50 percent probability or higher) that such disorder is proximately due to the Veteran's left ankle disorder, to include as a result of an antalgic gait. (c) For each disorder diagnosed in sub-part (a), please opine as to whether it is at least as likely as not (50 percent probability or higher) that such disorder has been aggravated (worsened beyond natural progression) by the Veteran's service-connected left ankle disability, to include as a result of an antalgic gait. In addressing these questions, please address the effects of the Veteran's antalgic gait. See, e.g., February 24, 2016 VA Physical Therapy Note. A complete rationale must be provided for all opinions. If the requested opinions cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. 6. Adjudicate in the first instance the theory of CUE that service connection for a left ankle disability based on aggravation was warranted in April 1975 because the AOJ incorrectly applied the presumption of soundness (in other words, the AOJ erred by not requiring clear and unmistakable evidence of lack of aggravation as well as pre-existence prior to service to rebut the presumption). S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.