Citation Nr: 21074120 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-33 682 DATE: December 14, 2021 REMANDED Entitlement to a rating greater than 20 percent for residuals of left ankle fracture with degenerative joint disease is remanded. Entitlement to service connection for left foot nerve condition is remanded. Entitlement to service connection for left knee degenerative joint disease, to include as secondary to service-connected left ankle disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 1971 to October 1973. This matter comes to the Board of Veterans' Appeals (Board) from August 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a rating greater than 20 percent for residuals of a service-connected left ankle fracture with degenerative joint disease. In addition, in an October 2013 rating decision the RO denied service connection for the Veteran's left foot nerve condition and left knee degenerative joint disease, to include as secondary to service-connected left ankle disability. The Veteran filed notices of disagreement (NOD) in August 2012 and November 2013 respectively, and a Form 9 for each decision in June 2017. Both appeals were perfected in September2017 . The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2021. A transcript of the proceeding has been associated with the claims file. 1. Entitlement to a rating greater than 20 percent for residuals of left ankle fracture with degenerative joint disease is remanded. The Veteran is currently rated at 20 percent for his ankle disability, the highest rating for available under the diagnostic code assigned. See 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5271. Indeed, for ankle disabilities, the only Diagnostic Code that provides for a higher disability rating is Diagnostic Code 5270, where there is a showing of "ankylosis" of the ankle joint that is, the joint is "frozen." See id. at DC 5270. In a recent decision, the United States Court of Appeals for Veterans' Claims (Court) noted that when evaluating a disability under VA's General Rating Formula, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1, (2021). Therefore, ankylosis can be shown via functional loss consistent with that contemplated by ankylosis. See 38 C.F.R. §§ 4.40, 4.45. During the Board hearing conducted in July 2021, the Veteran in fact testified that his ankle condition had worsened to the degree that he frequently could not move it; that he had lost its functional use. In contrast, VA examinations throughout the appellate time frame, the last of which was in July 2012, indicate "no" ankylosis, but do not comment on "functional equivalence" of ankylosis. VA outpatient treatment records show continued treatment for the ankle, but no specific mention of ankylosis. In light of the Veteran's testimony and the nearly ten year passage of time since the last examination, the Board finds a new VA examination is warranted to ascertain the current severity and manifestations of the Veteran's service-connected left ankle disability, to include whether his ankle is manifested by ankylosis or the functional equivalent of ankylosis. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997); DC 5270. Entitlement to service connection for left foot nerve condition is remanded. The Veteran has long maintained, and continues to assert, that nerves in his left foot were damaged as a result of the same accident that resulted in his service-connected fractured ankle. The Veteran was afforded a VA examination in October 2012 where the examiner found no evidence of nerve damage in the left foot and based on this examination, the RO denied service connection. Since that time, however, there are numerous references in the record from 2013 through 2017 noting diagnoses of neuroma and Morton's metatarsalgia in the Veteran's left foot, suggesting new evidence the Veteran may now have left foot nerve damage. Thus, a new examination is necessary to reconcile whether the Veteran does indeed suffer neuroma or Morton's metatarsalgia or some other nerve damage of his left foot and, if so, whether any such nerve damage is related to his service or a service-connected disability. Entitlement to service connection for left knee degenerative joint disease, to include as secondary to service-connected left ankle disability, is remanded. In October 2012, a VA examiner conducted a full in-person examination. The examiner noted a diagnosis of osteoarthritis in the Veteran's left knee. The range of motion (ROM) in his left knee was limited only in the forward flexion and the examiner judged it to be normal for the Veteran due to his body habitus. The Veteran was able to perform repetitive use testing and his ROM was not affected. The examiner concluded that that since there was no link between the Veteran's ankle fracture and his left knee osteoarthritis, it was less likely than not related to his ankle fracture in service. The examiner did not offer any further analysis. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusion by an examiner is insufficient to allow the Board to make a fully informed decision as to the probative value of the opinion). An addendum in October 2013 by a second examiner offered a more detailed analysis of why the service-connected injury could not have aggravated the Veteran's left knee osteoarthritis. He did not, however, elucidate why there was not a direct service connection. See id. Furthermore, one of the Veteran's contentions is that nerve damage in his foot caused the degenerative joint disease in his left knee. The Board is remanding the claim for service-connection for left foot nerve condition; the issues are so inextricably intertwined that the left foot knee condition must be deferred and remanded for possible readjudication pending the adjudication of the left foot nerve condition. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from February 2018 to the present. 2. Schedule the Veteran for an examination by 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. The examiner is specifically asked to address whether the Veteran has ankylosis of the left ankle or, alternatively, the "functional equivalent to ankylosis" in light of his testimony that he lost left ankle functional use. Further, in reporting range of motion, 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). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all 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). 3. Obtain addendum opinions from an appropriate clinician regarding the Veteran's left foot nerve and left knee service connection claims. The claims file should be made available to the clinician for review of the case, and the clinician should note that claims file review was completed. The necessity of a physical examination is left to the discretion of the examiner. The clinician is asked to provide an opinion on the following: (a) Whether the Veteran has left foot nerve damage or a left foot nerve diagnosis, to include neuroma and Morton's metatarsalgia and, if so, whether it is "at least as likely as not" that the left foot diagnosis/diagnoses were (i) directly incurred in service, (ii) due to service, or (iii) caused or aggravated by his service-connected left ankle disability. The examiner is directed to consider in-service evidence of the left ankle injury where he was casted, the Veteran's testimony that he believes his left foot was injured in the same in-service injury, and post-service evidence noting neuroma and Morton's metatarsalgia. (b) Whether the Veteran has a left knee condition or left knee pain causing functional impairment of earning capacity and, if so, whether it is "at least as likely as not" that such left knee condition or pain was (i) directly incurred in service, (ii) due to service, (iii) caused or aggravated by his service-connected left ankle disability, or (iv) caused or aggravated by any left foot nerve damage. The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. If medical literature is relied upon in rendering this determination, the clinician should identify and specifically cite each reference material used. All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. (Continued on the next page) If the clinician determines that s/he cannot provide an opinion without resorting to speculation, the clinician should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 2. Ensure that the requested opinions are associated with the claims file. After completing the above, and any additionally indicated development, re-adjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Wilkinson, Edward L. 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.