Citation Nr: 21077237 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-63 802 DATE: December 29, 2021 REMANDED Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for a left ankle condition is remanded. Entitlement to service connection for a left hand condition is remanded. Entitlement to service connection for a right hand condition is remanded. Entitlement to service connection for a left elbow condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from November 1990 to December 1990, from May 1999 to July 1999, from April 2002 to June 2002, from March 2003 to October 2003, with additional service in the National Guard. This matter comes before the Board of Veterans' Appeals on appeal from a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, a virtual hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Entitlement to service connection for bilateral ankle condition, bilateral hand condition, and a left elbow condition is remanded. The record shows current evidence for a bilateral ankle condition, bilateral hand condition, and a left elbow condition. See Private Treatment Record received June 2018. Notably, such evidence may be sufficient to constitute current disabilities for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356, 1365-68 (Fed. Cir. 2018). The Veteran also contended during the April 2021 Board hearing, that such disorders may be related to overuse in the military. See April 2021 Hearing Transcript. In spite of this evidence, a VA medical examination and medical opinion has not been obtained to address these claims. The Board finds that VA's duty to assist under 38 C.F.R. § 3.159(c)(4) has been met in this case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, remand is warranted to obtain VA examinations consistent with the directives herein. Additionally, the Board notes that during the April 2021 Board hearing, the Veteran testified that in 1999 or 2000, she turned in records from her private physician to the military clinic, but indicated that those records are not in her file. There is no indication that these records were requested prior to the February 2017 rating decision. Accordingly, on remand, additional development should be conducted to attempt to obtain these records. The Board acknowledges that in June 2017, the Veteran submitted a positive nexus opinion from her private physician. The Board finds that this opinion is insufficient for rating purposes, as the examiner appears to have rendered an opinion without determining what periods the Veteran was on active service. In this regard, the examiner indicated that the Veteran served in the U.S. Air Force from February 1984 to February 2010. While the record indicates that the Veteran served in the Air National Guard during that period, much of that time period was not active service. Lastly, the record indicates that the Veteran may have had additional periods of qualifying active duty service in the National Guard. Therefore, additional development is needed to attempt to verify additional periods of active duty service. The matters are REMANDED for the following actions: 1. Obtain the Veteran's complete service personnel records, to include all documents pertaining to her active service in the Air National Guard. 2. Attempt to verify all active duty, active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) dates for the Veteran's service in the Air National Guard. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 3. Obtain the Veteran's complete service treatment records, to include treatment records from the Tinker Air Force Base in Oklahoma City, Oklahoma. 4. Following the record development above, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran's bilateral ankle disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. (a.) Identify/ diagnose any ankle disorder that currently exists or has existed during the appeal period. (b.) The examiner must opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed ankle condition was caused by or is related to the Veteran's active duty service, to include her military occupational duties, or is otherwise related to a disease or injury occurred during a verified period of ACDUTRA or any injury that occurred during a verified period of INACDUTRA. (c.) If, and only if, the answer to paragraph (b) is negative, the examiner must determine whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that any diagnosed ankle condition preexisted any verified periods of active duty service, ACDUTRA, and/or INACDUCTRA. (d.) If it is determined that any diagnosed ankle condition clearly and unmistakably preexisted any period of active duty service, ACDUTRA, and/or INACDUTRA, is there clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting ankle condition was not aggravated beyond the natural progression of the condition by such service? The term "aggravated" in this context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. Following the record development above, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran's bilateral hand condition. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. (a.) Identify/ diagnose any hand condition that currently exists or has existed during the appeal period. (b.) The examiner must opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed hand condition was caused by or is related to the Veteran's active duty service, to include her military occupational duties, or is otherwise related to a disease or injury occurred during a verified period of ACDUTRA or any injury that occurred during a verified period of INACDUTRA. In reaching the above determination, the examiner must specifically consider and discuss the lay statement received in April 2017, wherein the Veteran's sister, who is a nurse, opined that the Veteran's duties as an aircraft mechanic aggravated the arthritis in her hands. (c.) If, and only if, the answer to paragraph (b) is negative, the examiner must determine whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that any diagnosed hand condition preexisted any verified periods of active duty service, ACDUTRA, and/or INACDUCTRA. (d.) If it is determined that any diagnosed hand condition clearly and unmistakably preexisted any period of active duty service, ACDUTRA, and/or INACDUTRA, is there clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting hand condition was not aggravated beyond the natural progression of the condition by such service? The term "aggravated" in this context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 6. Following the record development above, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran's left elbow condition. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. (a.) Identify/ diagnose any left elbow condition that currently exists or has existed during the appeal period. (b.) The examiner must opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed left elbow condition was caused by or is related to the Veteran's active duty service, to include her military occupational duties, or is otherwise related to a disease or injury occurred during a verified period of ACDUTRA or any injury that occurred during a verified period of INACDUTRA. In reaching the above determination, the examiner should consider the Veteran's April 2021 hearing testimony, wherein she contended that in March 2003, while on active duty, she slipped and fell on ice and injured her elbow. (c.) If, and only if, the answer to paragraph (b) is negative, the examiner must determine whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that any diagnosed left elbow condition preexisted any verified periods of active duty service, ACDUTRA, and/or INACDUCTRA. (d.) If it is determined that any left elbow condition clearly and unmistakably preexisted any period of active duty service, ACDUTRA, and/or INACDUTRA, is there clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting hand condition was not aggravated beyond the natural progression of the condition by such service? The term "aggravated" in this context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. (Continued on the next page) A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.