Citation Nr: 21006675 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-31 837A DATE: February 4, 2021 REMANDED The issue of service connection for a left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from September 1990 to December 1993. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2010 rating decision. In a May 2019 decision, the Board remanded the appeal to obtain a VA examination. The claim has since been returned to the Board for review. Although the Board regrets the delay in yet another remand, the agency of original jurisdiction (AOJ) has not substantially complied with the remand directives and further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand directive). In December 2016, the Veteran underwent a VA examination regarding her left ankle disability. The Veteran stated that her left ankle was injured in a motor vehicle accident during service and that she has experienced continuing symptoms of left ankle pain since the in-service injury. Further, the Veteran stated that her left ankle causes daily symptoms of pain. The examiner documented that the Veteran reported functional loss or functional impairment due to the left ankle disability, which the examiner noted as the inability to walk or stand for long periods. Additionally, the examiner determined the Veteran’s left ankle disability does not have a functional impact on her ability to perform occupational tasks. The examiner determined that the Veteran did not have a diagnosis of a current or chronic left ankle disability. The examiner opined that it is less likely than not that Veteran’s left ankle disability was incurred in or caused by service. The examiner explained that the Veteran’s in-service left ankle injury was most likely a self-limited and resolved condition. In a May 2019 remand, the Board determined that although the December 2016 VA examiner provided a negative nexus opinion, the examiner also reported that the Veteran has a history of left ankle pain productive of functional impairment. Therefore, the Board determined that a new VA examination was required to properly address the reported functional impairment. The May 2019 remand directives specifically instructed the examiner to address whether the Veteran’s pain is productive of functional impairment and address the Veteran’s statements regarding the in-service motor vehicle accident. In November 2019, the Veteran was afforded a second VA examination. During the examination the Veteran reported a present lack of current symptoms related to her left ankle disability; rather, the Veteran stated that she was presently more concerned with claims for other injuries related to service. The examiner determined that the Veteran did not have a present diagnosis of a left ankle disability. Additionally, the examiner determined the Veteran’s claimed left ankle disability does not have a functional impact on her ability to perform occupational tasks. The examiner opined that it is less likely than not that Veteran’s left ankle disability was incurred in or caused by service. The examiner determined that the Veteran’s in-service left ankle injury was a minor and self-limiting contusion and abrasion injury that resolved without residuals. The Board finds the conclusions of the November 2019 VA examiner to be inadequate. Specifically, the May 2019 remand directives instructed the examiner to address whether the Veteran’s pain is productive of functional impairment. Although the Veteran reported a lack of present left ankle symptoms during the examination, an assessment of whether the Veteran’s pain was productive of functional impairment at any point during the pendency of the appeal is still required. Additionally, the Board notes that although the Veteran does not have a diagnosed left ankle disability, the Federal Circuit has held that a diagnosis is not required to meet the current disability requirement because pain alone can constitute disability if it causes impairment in earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Moreover, the November 2019 VA examiner did not properly address the lay evidence of record demonstrating that the Veteran’s symptoms of left ankle pain started during service and continued during the pendency of the appeal. Therefore, a new VA examination opinion is required to properly address whether the Veteran’s pain was productive of functional impairment at any point during the pendency of the appeal and to address evidence of continuing left ankle symptoms during the pendency of the appeal. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the nature and etiology of the Veteran’s left ankle disability during the pendency of the appeal. The claims folder must be made available to and be reviewed by the examiner. Whether another examination is needed is left to the examiner’s discretion. The examiner should address the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left ankle disability had its onset during service or is otherwise related to service? In providing the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record, to include the Veteran’s competent assertions as to the nature, onset, and continuity of such problems since service. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. b. Address whether the Veteran’s reported symptoms of left ankle pain were productive of functional impairment at any point during the pendency of the appeal. If the examiner determines that the Veteran’s symptoms of left ankle pain were not productive of functional impairment, reconcile that conclusion with the findings of the December 2016 VA examiner indicating a history of left ankle pain productive of functional impairment. The examiner should also consider all lay statements submitted by the Veteran regarding his disability. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should 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(s). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.