Citation Nr: 21076609 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-43 015 DATE: December 27, 2021 REMANDED Entitlement to service connection for a left ankle condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1979 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In May 2019, February 2021, and July 2021, this matter was remanded to the Agency of Original Jurisdiction (AOJ) for additional development, and it has since returned for further appellate consideration. In the most recent July 2021 remand, the Board directed the AOJ to obtain an addendum VA medical opinion to determine whether there was clear and unmistakable evidence that the Veteran's left ankle preexisted service and if so, if such disability was clearly and unmistakably not aggravated during service. Further, if the left ankle disability did not preexist service or the left ankle disability existed prior to service but there was no clear and unmistakable evidence that it was not aggravated by service, then the examiner was asked to provide an opinion regarding whether the Veteran's left ankle disability was caused by his active duty service. In providing the medical opinion, the examiner was asked to address the Veteran's lay statements and to ensure that any opinion provided not be based on the fact that a disability is not mentioned or diagnosed in the treatment records. A VA addendum opinion was obtained in August 2021 where the examiner noted that the Veteran had reported having fracture of his left ankle prior to enlistment. Regarding aggravation of a preexisting condition, the examiner noted that "causing permanent aggravation would have required excessive force on the ankle, for which consideration of malpractice would be appropriate." The examiner then opined that there was no evidence of such force or complaint after he entered service. Regarding direct service connection, the examiner opined that the records did not show any reports relating to the left ankle. The Board finds that the opinion is adequate regarding whether the Veteran's left ankle disability existed prior to service. However, the Board finds that the opinion regarding whether the Veteran's left ankle disability was clearly and unmistakably not aggravated by service was incomplete as the examiner did not provide sufficient explanation to support its conclusion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The sole basis for the examiner's opinion is the lack of evidence of evidence relating to left ankle during service which makes the opinion not in substantial compliance with the Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Regrettably, another remand is necessary to obtain another addendum VA medical opinion. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his left ankle claim. All identified VA records, not currently in the record, should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken, to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to the same August 2021 examiner, if available, to review the claims file and to offer an addendum opinion regarding the following: (a.) Whether the left ankle disability was clearly and unmistakably not aggravated by military service and that any increase in the left ankle disability was due to the natural progression of the disability. (b.) If there was not clear and unmistakable evidence that the left ankle disability was not aggravated by service, determine whether it is at least as likely as not (50 percent probability or greater) that the current left ankle disability onset during service or is otherwise related to an in-service injury, event, or disease. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: a. The Veteran's report of a history of broken bones at the time of his July 1979 entrance examination, which the examiner clarified was a reference to the left ankle though the examiner did not note any current left ankle disability. b. The January 1980 report of chock block hit to the left foot. c. The Veteran's contention in a November 2011 statement that he had constant chronic pain in both ankles and knees since an in-service injury. d. The Veteran's testimony during the October 2018 hearing that the same in-service accident that caused his service-connected right ankle and left knee disabilities also injured his left ankle and symptoms had persisted from then to the present The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. Note that the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and explain why. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.