Citation Nr: 21012121 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 08-18 753 DATE: March 3, 2021 ORDER The appeal as to the claim of entitlement to service connection for right ankle disorder is moot, and the claim is dismissed for lack of jurisdiction. The appeal as to the claim of entitlement to service connection for right ankle scar is moot, and the claim is dismissed for lack of jurisdiction. REMANDED The appeal as to the claim of entitlement to service connection for a right leg disorder, to include as secondary to the service-connected right ankle disability, is remanded. The appeal as to the claim of entitlement to service connection for a left ankle disorder, to include as secondary to the service-connected right ankle disability, is remanded. The appeal as to the claim of entitlement to service connection for a left leg disorder, to include as secondary to the service-connected right ankle disability, is remanded. The appeal as to the claim of entitlement to service connection for a left hip/groin disorder, to include as secondary to the service-connected right ankle disability, is remanded. The appeal as to the claim of entitlement to service connection for a lumbar spine disorder, to include as secondary to the service-connected right ankle disability, is remanded. The appeal as to the claim of entitlement to service connection for a right knee disorder, to include as secondary to the service-connected right ankle disability, is remanded. The appeal as to the claim of entitlement to service connection for a left knee disorder, to include as secondary to the service-connected right ankle disability, is remanded. The appeal as to the claim of entitlement to service connection for a right foot disorder, to include as secondary to the service-connected right ankle disability, is remanded. The appeal as to the claim of entitlement to service connection for a left foot disorder, to include as secondary to the service-connected right ankle disability, is remanded. The appeal as to the claim of entitlement to service connection for an esophageal ulcer, to include as secondary to medication prescribed for the service-connected right ankle disability, is remanded. The appeal as to the claim of entitlement to service connection for an acquired psychiatric disorder, to include depressive and anxiety disorders, to include as secondary to the service-connected right ankle disability, is remanded. The appeal as to the claim of entitlement to service connection for left lower extremity radiculopathy disorder, to include as secondary to the claimed lumbar spine disorder, is remanded. The appeal as to the claim of entitlement to service connection for hypertension, to include as secondary to medication prescribed for the service-connected right ankle disability, and the claimed acquired psychiatric disorder, is remanded. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for right ankle disorder was granted in a rating decision issued by the Agency of Original Jurisdiction (AOJ) in April 2020, with an effective date of January 9, 2008. 2. The Veteran’s claim of entitlement to service connection for right ankle scar was granted in a rating decision issued by the Agency of Original Jurisdiction (AOJ) in April 2020, with an effective date of January 9, 2008. CONCLUSIONS OF LAW 1. The Board lacks jurisdiction over the claim of service connection for right ankle disorder, because that claim has been granted and rendered moot. 38 U.S.C. § § 7104 (a), 7105(d)(5) (2012); 38 C.F.R. § § 19.7, 20.101, 20.200, 20.202 (2019). 2. The Board lacks jurisdiction over the claim of service connection for right ankle scar, because that claim has been granted and rendered moot. 38 U.S.C. § § 7104 (a), 7105(d)(5) (2012); 38 C.F.R. § § 19.7, 20.101, 20.200, 20.202 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from March 1975 to February 1979. His service was under honorable conditions. These matters are on appeal from June 2008, August 2010, and February 2011 rating decisions. In May 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) at the Regional Office (RO) in Waco, Texas. A written transcript of this hearing has been prepared and associated with the evidence of record. Dismissal as Moot 1. Entitlement to service connection for right ankle disorder. See argument Below at 2 2. Entitlement to service connection for right ankle scar. In this case, the Veteran's claim of service connection for right ankle disorder and right ankle scar was granted in a rating decision issued by the AOJ in April 2020. As a general matter, the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007); see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.202 (2019). Here, as a result of the AOJ's action, there no longer remains a case or controversy with respect to this claim. Therefore, the Board lacks jurisdiction over this issue because it has been granted and rendered moot on appeal. 38 U.S.C. § 7104, 7105 (2012); 38 C.F.R. § 19.7, 20.101, 20.200, 20.202 (2019). Therefore, dismissal of this claim is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right leg disorder, to include as secondary to the service-connected right ankle disability. See argument Below at 10 2. Entitlement to service connection for a left ankle disorder, to include as secondary to the service-connected right ankle disability. See argument Below at 10 3. Entitlement to service connection for a left leg disorder, to include as secondary to the service-connected right ankle disability. See argument Below at 10 4. Entitlement to service connection for a left hip/groin disorder, to include as secondary to the service-connected right ankle disability. See argument Below at 10 5. Entitlement to service connection for a lumbar spine disorder, to include as secondary to the service-connected right ankle disability. See argument Below at 10 6. Entitlement to service connection for a right knee disorder, to include as secondary to the service-connected right ankle disability. See argument Below at 10 7. Entitlement to service connection for a left knee disorder, to include as secondary to the service-connected right ankle disability. See argument Below at 10 8. Entitlement to service connection for a right foot disorder, to include as secondary to the service-connected right ankle disability. See argument Below at 10 9. Entitlement to service connection for a left foot disorder, to include as secondary to the service-connected right ankle disability. See argument Below at 10 10. Entitlement to service connection for an esophageal ulcer, to include as secondary to medication prescribed for the service-connected right ankle disability. Regarding the claimed right leg, left ankle, left leg, left hip, lumbar spine, right knee, left knee, right foot, left foot, and ulcer disorders, the June 2020 VA examiner did not address the question of whether the disorders were aggravated by the Veteran’s service-connected right ankle disability, to include medication prescribed for the right ankle disability (with respect to the ulcer disorder). Accordingly, the issues must be remanded for adequate VA medical opinions. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 11. Entitlement to service connection for an acquired psychiatric disorder, to include depressive and anxiety disorders, to include as secondary to the service-connected right ankle disability. The Veteran underwent a VA psychiatric examination in September 2020, during which major depressive disorder and moderate alcohol use disorder, were diagnosed. The VA examination, however, failed to provide an etiology for the aforementioned disorders. Accordingly, the issue must be remanded for a VA medical opinion. See Id. 12. Entitlement to service connection for left lower extremity radiculopathy disorder, to include as secondary to the claimed lumbar spine disorder. See argument Below at 13 13. Entitlement to service connection for hypertension, to include as secondary to medication prescribed for the service-connected right ankle disability, and the claimed acquired psychiatric disorder. The Veteran’s claim of entitlement to service connection for left lower extremity radiculopathy disorder, relies in part on his claim of entitlement to service connection for a lumbar spine disorder. Likewise, his claim of entitlement to service connection for hypertension, relies in part on his claim of entitlement to service connection for an acquired psychiatric disorder, these issues cannot be addressed until the above development has been completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely ties together that a final Board decision cannot be rendered unless both are adjudicated). In addition, development to obtain any outstanding medical records pertinent to the Veteran’s claim should be completed. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following a review of the record, the physician should state a medical opinion with respect to the right and left leg disorders present during the period of the claim. The examiner must address the following: Is it at least as likely as not (i.e., at least 50 percent probable) that the current right and left leg disorder(s) is etiologically related to the Veteran’s active service? If not, the examiner should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the right and left leg disorder(s) was caused or aggravated by his service-connected right ankle disability. In providing the opinion, the examiner must discuss the Veteran’s assertions, that his symptoms of right and left leg pain began following right ankle disability. The examiner must also discuss the contemporaneous VA and private treatment records, and VA examination reports that note diagnoses of right and left leg disorders. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 3. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following a review of the record, the physician should state a medical opinion with respect to the right and left knee disorders present during the period of the claim. The examiner must address the following: Is it at least as likely as not (i.e., at least 50 percent probable) that the current right and left knee disorder(s) is etiologically related to the Veteran’s active service? If not, the examiner should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the right and left knee disorder(s) was caused or aggravated by his service-connected right ankle disability. In providing the opinion, the examiner must discuss the Veteran’s assertions, that his symptoms of right and left knee pain began following right ankle disability. The examiner must also discuss the contemporaneous VA and private treatment records, and VA examination reports that note diagnoses of right and left knee disorders. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 4. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following a review of the record, the physician should state a medical opinion with respect to the right and left foot disorders present during the period of the claim. The examiner must address the following: Is it at least as likely as not (i.e., at least 50 percent probable) that the current right and left foot disorder(s) is etiologically related to the Veteran’s active service? If not, the examiner should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the right and left foot disorder(s) was caused or aggravated by his service-connected right ankle disability. In providing the opinion, the examiner must discuss the Veteran’s assertions, that his symptoms of right and left foot pain began following right ankle disability. The examiner must also discuss the contemporaneous VA and private treatment records, and VA examination reports that note diagnoses of right and left foot disorders. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 5. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following a review of the record, the physician should state a medical opinion with respect to the left ankle disorders present during the period of the claim. The examiner must address the following: Is it at least as likely as not (i.e., at least 50 percent probable) that the current left ankle disorder(s) is etiologically related to the Veteran’s active service? If not, the examiner should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that left ankle disorder(s) was caused or aggravated by his service-connected right ankle disability. In providing the opinion, the examiner must discuss the Veteran’s assertions, that his symptoms of left ankle pain began following right ankle disability. The examiner must also discuss the contemporaneous VA and private treatment records, and VA examination reports that note diagnoses of left ankle disorders. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 6. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following a review of the record, the physician should state a medical opinion with respect to the left hip disorders present during the period of the claim. The examiner must address the following: Is it at least as likely as not (i.e., at least 50 percent probable) that the current left hip disorder(s) is etiologically related to the Veteran’s active service? If not, the examiner should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that left hip disorder(s) was caused or aggravated by his service-connected right ankle disability. In providing the opinion, the examiner must discuss the Veteran’s assertions, that his symptoms left hip pain began following right ankle disability. The examiner must also discuss the contemporaneous VA and private treatment records, and VA examination reports that note diagnoses of left hip disorders. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 7. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following a review of the record, the physician should state a medical opinion with respect to the lumbar spine disorders present during the period of the claim. The examiner must address the following: Is it at least as likely as not (i.e., at least 50 percent probable) that the current lumbar spine disorder(s) is etiologically related to the Veteran’s active service? If not, the examiner should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that lumbar spine disorder(s) was caused or aggravated by his service-connected right ankle disability. In providing the opinion, the examiner must discuss the Veteran’s assertions, that his symptoms of lumbar spine pain began following right ankle disability. The examiner must also discuss the contemporaneous VA and private treatment records, and VA examination reports that note diagnoses of lumbar spine disorders. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 8. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following a review of the record, the physician should state a medical opinion with respect to the ulcer disorder present during the period of the claim. The examiner must address the following: Is it at least as likely as not (i.e., at least 50 percent probable) that the current ulcer disorder(s) is etiologically related to the Veteran’s active service? If not, the examiner should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that ulcer disorder(s) was caused or aggravated by medications prescribed for his service-connected right ankle disability. In providing the opinion, the examiner must discuss the Veteran’s assertions, that his symptoms of ulcer pain began following right ankle disability and the continuous use of medications to treat the disability. The examiner must also discuss the contemporaneous VA and private treatment records, and VA examination reports that note diagnoses of an ulcer disorder. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 9. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following a review of the record, the physician should state a medical opinion with respect to the acquired psychiatric disorders present during the period of the claim. The examiner must address the following: Is it at least as likely as not (i.e., at least 50 percent probable) that the current depression and/or anxiety disorder(s) is etiologically related to the Veteran’s active service? If not, the examiner should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that depressive and/or anxiety disorder(s) was caused or aggravated by medications prescribed for his service-connected right ankle disability. In providing the opinion, the examiner must discuss the Veteran’s assertions, that his symptoms of depression and anxiety began following right ankle disability and the continuous use of medications to treat the disability. The examiner must also discuss the contemporaneous VA and private treatment records, and VA examination reports that note diagnoses of depressive and anxiety disorders. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 10. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided a Supplemental Statement of the Case and an appropriate period for response before the case is returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Schinnerer, 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.