Citation Nr: 21016199 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 16-14 994 DATE: March 22, 2021 REMANDED Entitlement to service connection for a lumbosacral strain is remanded. Entitlement to service connection for a left ankle condition is remanded. Entitlement to service connection for a right ankle condition is remanded. REASONS FOR REMAND The Veteran served in the Army from March 2000 to September 2000, with additional periods of service in the Army National Guard until 2009. In October 2019, the Veteran testified before the undersigned Veteran’s Law Judge (VLJ) sitting in Oakland, California. A transcript of this hearing has been associated with the claims file. The Veteran’s claims were most recently before the Board of Veterans Appeals (Board) in February 2020 wherein they were remanded for additional development. This development was completed; however, the Board finds the examinations and opinions to be inadequate and additional development is required. 1. Entitlement to service connection for a lumbosacral strain is remanded; 2. Entitlement to service connection for a left ankle condition is remanded; and, 3. Entitlement to service connection for a right ankle condition is remanded. The Board remanded the Veteran’s claims for two reasons. First, to obtain personnel records to verify whether the Veteran was on orders during the time of her injuries (ACDUTRA) or she was not on orders (INACDUTRA). Second, to obtain examinations on her claims for service connection. Regarding whether the Veteran was on orders, the agency of original jurisdiction (AOJ) obtained portions of the Veteran’s personnel records of her time with the California Army National Guard. See DPRIS Response, received September 1, 2020, 130 pages in total; and VA 27-0820c Report of Defense Finance & Accounting Service (DFAS), received November 3, 2020, 18 pages total. Regarding the Veteran’s back injury, an August 8, 2005 record states that the Veteran was injured during AIT (advanced individual training), but did not specifically reference her back. See DPRIS response, page 39. As for the Veteran’s left ankle, a certificate verifies that she assisted in Task Force Shovel/Operation Lightning Strike during the summer of 2008. See DPRIS, page 120. In contrast, the DFAS records do not verify that the Veteran was ACDUTRA these dates. See DFAS, pages 5 and 11. In giving the Veteran the benefit of the doubt, the Board finds that the claimed events occurred during periods of ACDUTRA. Thus, the second prong of service connection is met: an in-service incurrence or aggravation of a disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Turning to whether the Veteran’s back and left ankle conditions are related to service or whether the back or ankle conditions are caused or aggravated by the Veteran’s service-connected left hip condition, the Veteran was afforded examinations related to these conditions. Further, a VA examiner provided on opinions on the etiology of each condition finding in the negative for each. However, the Board finds the opinions and examinations to be inadequate. First, the examiner does not find that the Veteran has any back or ankle conditions, finding that the Veteran has full range of motion without pain. This is in contrast with VA treatment records since 2014 documenting pains, strains, and degenerative joint disease of the ankles. Further, the examiner appears to have made a credibility determination about the Veteran’s injury history which is inappropriate. Second, because of the finding of no diagnosis, the examiner did not answer the questions related to etiology. Given these inadequacies, a remand is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any lumbosacral strain disability. a. The examiner should address what, if any, diagnosis related to the Veteran’s back has been present since February 2014 – to include strain. b. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including a motor vehicle accident in August 2005 which the Board finds to have occurred. The examiner’s attention is invited to the concurrent accident report. See VBMS document labeled Correspondence, received March 5, 2014, 5 pages. c. Further, the examiner should address the following: Is it at least as likely as not that the lumbosacral strain was 1) caused or 2) aggravated by the service-connected left hip condition, to include by an altered gait? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral ankle disability. The examiner must opine as to the following: a. The examiner should address what, if any, diagnosis related to the Veteran’s ankles has been present since February 2014 – to include notations in the record to degenerative joint disease. b. whether it is at least as likely as not that any left ankle condition is related to an in-service injury, event, or disease, including an accident in June 2008. which the Board finds to have occurred. c. is it at least as likely as not that any ankle condition was 1) caused or 2) aggravated by the service-connected left hip condition? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. d. if the Veteran’s left ankle is service-connected (related to the June 2008 in-service accident), is it at least as likely as not that the right ankle condition was caused or aggravated by the service-connected left ankle condition, to include by an altered gait? The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.