Citation Nr: 21007162 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 20-18 187 DATE: February 8, 2021 ORDER The petition to reopen the previously denied claim for service connection for a left ankle sprain is granted. The petition to reopen the previously denied claim for service connection for a right ankle sprain is granted. REMANDED Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a left eye disorder is remanded. Entitlement to service connection for a right eye disorder is remanded. FINDINGS OF FACT 1. In a February 2015 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran’s claims for service connection for a left ankle sprain and a right ankle sprain; he did not initiate an appeal of that decision. 2. Additional evidence associated with the claims file since the February 2015 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial, it relates to unestablished facts necessary to substantiate the claims for service connection for a left ankle sprain and a right ankle sprain, and it raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The February 2015 rating decision that denied the Veteran’s claims for service connection for a left ankle sprain and a right ankle sprain is final. 38 U.S.C. § 7105(c) (2018); 38 C.F.R. §§ 3.104, 20.1103 (2020). 2. As evidence received since the February 2015 rating decision is new and material, the criteria for reopening the claim for service connection for a left ankle sprain are met. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2020). 3. As evidence received since the February 2015 rating decision is new and material, the criteria for reopening the claim for service connection for a right ankle sprain are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1960 to August 1963. Petitions to Reopen The AOJ originally denied the Veteran’s claims for service connection for a left ankle sprain and a right ankle sprain in a February 2015 rating decision because the evidence of record failed to demonstrate current disabilities. The Veteran did not appeal, nor did he submit new and material evidence within a year of the rating decision. As such, the February 2015 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Newly received evidence includes a June 2018 VA examination and the Veteran’s VA treatment record showing diagnoses of moderate degenerative changes of the right ankle and left ankle degenerative arthritis. The Board finds that the evidence received constitutes new and material evidence under the provisions of 38 C.F.R. § 3.156, and his claims for service connection for a left ankle sprain and a right ankle sprain are reopened. REASONS FOR REMAND Left Ankle Disorder, Right Ankle Disorder, Left Shoulder Disorder, and Cervical Spine Disorder The Veteran claims entitlement to service connection for a left ankle disorder, a left shoulder disorder, and a cervical spine disorder as a direct result of injuries he sustained during his military service. See December 2020 Appellate Brief. With regard to his claimed right ankle disorder, he claims that such is secondary to his left ankle disorder. See June 2019 VA Form 27-0820, Report of General Information. In connection with his claims for service connection for a left ankle disorder, a left shoulder disorder, and a cervical spine disorder, the Veteran was afforded VA examinations in June 2018. After reviewing the pertinent evidence of record, including the Veteran’s current diagnoses and his in-service treatment for problems associated with his left ankle, left shoulder, and cervical spine, the examiner ultimately opined that his current problems were less likely than not related to his military service. The examiner reasoned that the Veteran in-service problems were acute and self-limiting, that there were no documented chronic problems during service, and that there was a lack of continuation of care after the Veteran was discharged. Unfortunately, the Board finds that the June 2018 opinions are insufficient to adjudicate the claims on appeal. Significantly, the examiner’s opinions appear to be based solely on the lack of objective evidence showing chronic symptomatology during and following service, and they do not reflect consideration of his lay statements concerning the onset and continuity of his left ankle, left shoulder, and cervical spine symptoms. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given that the medical evidence of record fails to adequately address the issues raised, the Board finds that new opinions are necessary. In the event that a medical professional determines that the Veteran’s left ankle disorder is, in fact, related to his military service, an opinion should be obtained to determined whether his current right ankle disorder is secondary to his left ankle disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Left Eye and Right Eye Disorders The Veteran claims entitlement to service connection for bilateral eye disorders as a result of his military service. In the December 2020 appellate brief, the Veteran’s attorney argued that his visual acuity worsened during his military service, and that such was a result of his in-service treatment for a foreign body in his left eye and his contraction of conjunctivitis during service. The Veteran’s June 1960 entrance examination notes that his distant visual acuity was 20/20 in the right eye, and 20/40 in the left eye. His vision was corrected to 20/20 bilaterally. The summary of defects included defective vision. An October 1960 service treatment record noted that a foreign body was removed from his left eye. A January 1961 service treatment record noted that the Veteran suffered from mild conjunctivitis in the left eye. A July 1961 examination notes that his distant visual acuity was 20/40 in the right eye, and 20/40 in the left eye. His vision was corrected to 20/20 bilaterally. A June 1963 examination notes the Veteran’s report of trouble seeing distance. His distant visual acuity was 20/40 in the right eye, and 20/50 in the left eye. A July 1963 examination notes that his distant visual acuity was 20/30 in the right eye, and 20/40 in the left eye. His vision was corrected to 20/20 bilaterally. In a May 2018 statement, the Veteran reported that, following the October 1960 foreign body in his left eye, he continued to have issues, including a reduction of his eyesight in that eye. In July 2018, the AOJ obtained a VA medical opinion addressing the Veteran’s claims. After reviewing the pertinent evidence of record, including his service treatment records, the examiner ultimately opined that his current problems were less likely than not related to his military service. The examiner reasoned that, while the Veteran had an isolated event of a likely viral conjunctivitis affecting both eyes, the Veteran was examined four times thereafter, including his discharge examination, and there were no further ocular problems or reduction in vision. Unfortunately, the Board finds that July 2018 VA medical opinion is insufficient to adjudicate the Veteran’s claim. First, because he was not afforded an examination, it is unclear as to whether he has current disabilities related to his bilateral eyes. Furthermore, the examiner’s opinion appears to be based solely on the lack of any chronic problems following the Veteran’s in-service bilateral conjunctivitis, both during and following service, and it does not reflect consideration of his lay statements concerning the onset and continuity of his visual problems. See Dalton, supra; Miller, supra. Finally, the opinion appears to be based on an inaccurate factual premise, namely, that the Veteran’s visual acuity did not worsen during service. See Reonal v. Brown, 5 Vet. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Indeed, when comparing his visual June 1960 visual acuity (20/20 in the right eye and 20/40 in the left eye) with the visual acuity noted in the June 1963 service treatment record (20/40 in the right eye and 20/50 in the left eye), it appears that his visual did worsen during service. When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr, supra. Given that the medical evidence of record fails to adequately address the issues raised, the Board finds that a new examination is necessary. On remand, the AOJ should also associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent records. The matters are REMANDED for the following action: 1. Associate any VA treatment records dated after February 11, 2020, with the Veteran’s claims file. 2. Give the Veteran the opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if he provides the appropriate authorization. 3. Obtain opinions from a competent medical professional to determine whether any current left ankle disorder, left shoulder disorder, and/or cervical spine disorder had its onset during, or is otherwise related to, his military service. If the selected medical professional determines that the Veteran’s left ankle disorder is related to his military service, an opinion as to whether the Veteran’s right ankle disorder is secondary to his left ankle disorder should also be offered. The entire record must be made available to and be reviewed by the medical professional. The medical professional should take a history from the Veteran as to the progression of his claimed disabilities. If an examination is deemed necessary, one should be conducted, to include via telehealth if feasible. Following a review of the entire record, the medical professional should address the following question: a) For any current left ankle disability, left shoulder disability, and/or cervical spine disorder, is it at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to his period of active duty service? With regard to the Veteran’s left ankle, the medical professional must consider the full record, to include the November 1962 in-service treatment for a left ankle strain, as well as the lay statements of record concerning the onset and continuity of symptomatology. See May 2018 Statement from the Veteran; June 2019 VA Form 27-0820. With regard to the Veteran’s left shoulder, the medical professional must consider the full record, to include the May 1963 in-service treatment for a left shoulder strain, as well as the lay statements of record concerning the onset and continuity of symptomatology. See May 2018 Statement from the Veteran; June 2019 VA Form 27-0820. With regard to the Veteran’s cervical spine, the medical professional must consider the full record, to include the June 1963 in-service treatment for cervical spine pain, as well as the lay statements of record concerning the onset and continuity of symptomatology. See May 2018 Statement from the Veteran; June 2019 VA Form 27-0820; November 2019 Statement from Daughter. b) If, and only if, the medical professional determines that the Veteran’s left ankle disorder is related to his military service, the examiner should address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that his right ankle disorder was caused or aggravated beyond its natural progression by his service-connected left ankle disorder? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered. A complete rationale must be provided for any opinions provided and must be based on consideration of all pertinent lay and medical evidence. 4. The Veteran should be scheduled for an appropriate VA examination by a competent medical professional to determine whether any bilateral eye disorder(s) had its onset during, was aggravated by, or is otherwise related to, his military service. The entire record must be made available to and be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his claimed eye disabilities. Any indicated evaluations, studies, and tests should be conducted. Following a review of the entire record, the examiner should address the following questions: a) Identify any currently diagnoses related to the Veteran’s bilateral eyes. b) For the Veteran’s defective vision, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s preexisting defective vision worsened during his period of active duty service. In responding to the above, the examiner must consider the full record, to include the Veteran’s lay statements regarding the worsening of his visual acuity during and following his service, as well as his in-service treatment records including his June 1960 entrance examination which notes that his distant visual acuity was 20/20 in the right eye, and 20/40 in the left eye; a June 1963 examination noting the Veteran’s report of trouble seeing distance, and that his distant visual acuity was 20/40 in the right eye, and 20/50 in the left eye; and his July 1963 discharge examination noting that his distant visual acuity was 20/30 in the right eye, and 20/40 in the left eye. Furthermore, the examiner should address the October 1960 service treatment record noting that a foreign body was removed from his left eye, and a January 1961 service treatment record noted that the Veteran suffered from mild conjunctivitis in the left eye. c) If the answer to question b) is “yes,” is it clear and unmistakable (i.e. undebatable) that such in-service worsening was due to the natural progression of the disease? d) For any current bilateral eye disabilities other than defective vision, is it at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in or is otherwise related to his active duty service, to include his October 1960 treatment for a foreign body in his left eye, and the January 1961 service treatment record noting that he suffered from mild conjunctivitis in the left eye? A complete rationale must be provided for any opinions provided and must be based on consideration of all pertinent lay and medical evidence. 5. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.