Citation Nr: 21074093 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-26 352 DATE: December 14, 2021 REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1979 to February 1983, March 2003 to March 2004, and February 2009 to January 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was previously before the Board in March 2019 and May 2021. The Board most recently remanded the appeal in May 2021 for further development, finding that the VA examinations for the left ankle and PTSD were inadequate. The Board notes the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) in October 2018. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. However, the VLJ who conducted the October 2018 Board hearing is no longer employed by the Board. In April 2021, the Veteran and his representative were sent a letter notifying them that the VLJ who presided over the October 2018 hearing is no longer employed by the Board and offered another hearing before a different VLJ. The letter notified the Veteran that he had 30 days from the date of letter to respond and that if no response was received the Board will assume the Veteran does not want another hearing and the Board will proceed accordingly. The Veteran did not respond to the letter. As such, the Board has proceeded with appellate review based on the evidence of record. The Veteran contends that his left ankle disability should be service connected because it was caused by, or aggravated by, his service-connected right ankle disability. The Veteran also maintains that he has PTSD due to his military service. 1. Entitlement to service connection for a left ankle disability is remanded A remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Consistent with this, once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The May 2021 Board remand determined that the December 2019 VA left ankle examination opinion was inadequate because it did not provide an adequate opinion considering secondary service connection and did not provide an opinion regarding aggravation. The remand specifically directed that the examiner must address Veteran's statement that his right ankle disability causes him to favor and shift his weight to his left ankle. The Veteran was afforded a VA left ankle examination in June 2021. The examiner acknowledged that the Veteran has advanced degenerative arthritis of the left ankle. The examiner opined that it is less likely than not that the Veteran's left ankle disability is proximately due to or the result of his service-connected right ankle disability and that it is less likely than not that the Veteran's left ankle disability was aggravated by his service-connected right ankle disability. The examiner's rationale failed to thoroughly discuss the Veteran's statement that his right ankle disability causes him to favor and shift his weight to his left ankle which caused or aggravated his left ankle disability. See Stegall. The examiner discussed the Veteran's right ankle injury, but no analysis was provided regarding whether the right ankle disability caused or aggravated the left ankle degenerative arthritis due to the Veteran having to shift extra weight to the left ankle as a result of the right ankle disability. Thus, the examiner did not thoroughly address the Veteran's lay statement, as directed by the May 2021 Board remand. In making all determinations, the Board must fully consider the lay assertions of record. Lay persons are competent to describe their experiences, and the Veteran and his brother are competent to give evidence about their experiences. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The examiner opined that because the Veteran has multiple musculoskeletal conditions, to include conditions of the back and bilateral feet, the contribution that the right ankle had in causing or aggravating the left ankle disability could not be determined. However, it appears the examiner employed a higher standard than that of at least as likely as not that the right ankle disability caused or aggravated the left ankle disability. Rather, the examiner's rationale indicates a standard requiring certainty regarding the exact level of contribution the right ankle disability had in causing or aggravating the left ankle disability. That is a much higher standard than at least as likely as not. The examiner mentioned that a March 2010 VA examination found that the Veteran had an antalgic gait, but then referenced a July 2013 VA examination that did not mention instability of station or disturbance of locomotion. However, upon examination, the examiner found that the Veteran had an antalgic gait and multiple medical records in the case file indicate that the Veteran has had an antalgic gait. In fact, a March 2010 addendum medical note states that notations that the Veteran's gait is normal should be disregarded, as he ambulates with an uneven gait due to his right ankle injury. See Addendum Medical Note, March 11, 2010. Therefore, the examiner did not appropriately consider the evidence of record and did not support the opinions given with thorough and well rationalized explanations based on the facts of record and sound medical analysis. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). The Board also notes that the examiner tried to justify the opinions because the Veteran has other musculoskeletal conditions, but the examiner failed to address whether the Veteran's service-connected back disability caused or aggravated his left ankle disability. A medical opinion is inadequate when it does not consider all raised theories of entitlement. See Stefl. In this case, the examiner raised the theory that the Veteran's back disability could have contributed to the Veteran's left ankle disability but did not provide an opinion on that theory. Based on the foregoing reasons, the Board finds the June 2021 VA left ankle opinion to be inadequate and did not substantially comply with the May 2021 Board remand. Thus, remand is warranted for further development. 2. Entitlement to service connection for PTSD is remanded The May 2021 Board remand directed that an opinion should be provided as to whether any current PTSD is at least as likely as not related to the Veteran's active duty military service. The remand specifically stated that the examiner was to discuss the Veteran's testimony regarding an in-service vehicle accident and death and statements regarding a 2005-2006 incident of being involved in a gun fight. The remand also required that the examiner consider the diagnosis of PTSD under both the criteria provided by the DSM-IV and DSM-V. The Veteran was afforded a new VA PTSD examination in July 2021. However, the examiner failed to consider the Veteran's testimony regarding the vehicle accident death and the gun fight. Furthermore, the examiner did not consider a diagnosis of PTSD under the DSM-IV. As such, the examiner did not substantially comply with the May 2021 Board remand. See Stegall; see also Barr. Accordingly, remand is warranted for further development. The matters are REMANDED for the following action: 1. Obtain all outstanding relevant VA treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician, preferably a specialist, to determine the nature and etiology of his left ankle disability. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. Based on the examination and review of the record, the examiner is asked to provide a response to the following: (a.) Is the Veteran's current left ankle disability at least as likely as not (i.e., a 50 percent or greater probability) caused by the Veteran's service-connected right ankle disability or low back disability, to include radiculopathy? (b.) Is the Veteran's left ankle disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's service-connected right ankle disability or low back disability, to include radiculopathy? Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that the Veteran's left ankle disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale should be provided for all opinions. The clinician is asked to consider and address relevant lay and medical evidence, to specifically include the Veteran's testimony during his October 2018 hearing that his right ankle disability causes him to favor and shift his weight to his left ankle. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. 3. Schedule the Veteran for a PTSD examination by an appropriate clinician. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. The examiner is asked to provide an opinion as to whether any current PTSD is at least as likely as not (i.e., a 50 percent or greater probability) related to the Veteran's active duty military service. The examiner should specifically discuss the Veteran's testimony regarding an in-service vehicle accident and death and statements regarding a 2005-2006 incident of being involved in a gun fight. The examiner should consider the diagnosis of PTSD under both the criteria provided by the DSM-IV and DSM-V. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. J. Dworkin Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.