Citation Nr: 21007216 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-15 303 DATE: February 9, 2021 REMANDED Entitlement to service connection for degenerative joint disease of the left ankle is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1956 to February 1958. In February 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In April 2018, the Board reopened the Veteran’s claim on appeal and remanded the appeal for a VA examination. Regrettably, although a new VA examination and opinion were provided in November 2020, for the reasons discussed below, the Board finds that the November 2020 VA medical opinion is inadequate. In the present case, the Veteran testified at the February 2018 Board hearing that he injured his left ankle while performing maneuvers in Hawaii, during his service. Notably, the Veteran testified that he was treated for his ankle injury with ice, an ace bandage, and prescribed best rest for three days. Also, the RO has acknowledged that the Veteran’s service treatment records were destroyed in the 1973 fire in St. Louis, Missouri. In a November 2020 VA medical opinion, the VA examiner opined that the Veteran’s degenerative joint disease of the left ankle is less likely than not related to the Veteran’s service. The VA examiner noted that he has considered the Veteran’s statements. The VA examiner noted that a review of the records indicates that the Veteran has medical documentation of a left ankle injury on June 1, 1992. Significantly, the VA examiner also noted that the radiology report showed evidence of previous trauma. However, the VA examiner concluded that the Veteran’s post-service employment as a longshoreman “may have” been the cause of his current left ankle disability. The VA examiner concluded his opinion by stating that “[t]here is no way to determine the etiology of an ankle injury that occurred between 1957 and 1992.” Here, the VA examiner did not discuss the Veteran’s statements that he injured his ankle during service or his ongoing pain since his service. Although the VA examiner noted that the Veteran’s lay statements were considered, simply noting the Veteran’s statements were considered, without actual discussion of the Veteran’s lay contentions, is insufficient. Therefore, the Board does not fine that the examiner has appropriately discussed the Veteran’s contentions. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) Additionally, with respect to the negative opinion provided, the Board finds that the VA examiner’s opinion that the Veteran’s left ankle condition “may” be caused by his post-service employment is speculative. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus). As such, a remand for an addendum opinion is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s comprehensive VA treatment records for the period from March 2020 to the present, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers. See 38 C.F.R. § 3.159(c)(3) (2020). The Board observes that the Veteran has been treated at various VA facilities, to include West Palm VAMC, Stuart VAMC, and NJ Heath Care System. 2. Upon completion of the above to the extent possible, the AOJ should request an addendum opinion, to ascertain the nature and etiology of the Veteran’s left ankle. If another examination is necessary, one should be scheduled. 3. Upon examination (if required) and review of the entire record, the examiner should provide an opinion responding to the following: a) Whether the Veteran’s left ankle disability is at least as likely as not (probability of 50 percent or greater) the result of a disease or injury incurred in or aggravated by service. b) The examiner should discuss the Veteran’s lay statements regarding the history and chronicity of symptomatology, to include: • the Veteran’s statements of an in-service injury to his ankle while during maneuvers; and • the Veteran’s ongoing reports of a left ankle problems. Specifically addressing: a. Are the Veteran’s assertions consistent with medical knowledge or implausible; b. Are the Veteran’s reports about symptoms or an in-service injury align with how the disease or disability is known to develop. • S/he should outline that history in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. • The absence of evidence of treatment for symptoms related to the disability in the Veteran’s available service treatment records (which are deemed unavailable due to destruction in a 1973 fire) and post-service records cannot, standing alone, serve as the basis for a negative opinion. • Any opinion expressed by the VA examiner must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, 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.