Citation Nr: 21021730 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-05 866 DATE: April 13, 2021 REMANDED Service connection for a right ankle condition, to include as secondary to service-connected right knee patellofemoral pain syndrome, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 2005 to April 2009, from September 2018 to December 2019, and from September 2020 to February 2021. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was most recently before the Board in July 2020, when it was remanded for further development. Although the additional delay is regrettable, the Board finds that there has not been substantial compliance with the July 2020 remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). Service connection for a right ankle condition, to include as secondary to service-connected right knee patellofemoral pain syndrome, is remanded. The Veteran contends that her current right ankle condition is caused by or aggravated by her service-connected right knee disability. After review of the record, the Board finds that a remand is necessary for further development prior to adjudicating the Veteran's claim, in accordance with VA's duty to assist. Pursuant to the July 2020 Board remand, the Veteran was afforded a VA examination in August 2020 to assess the nature and etiology of her claimed right ankle condition. 08/25/2020 C&P Exam. Upon examination, the examiner found that there was no conclusive diagnosis for VA purposes, and relied on this to render an unfavorable opinion against the Veteran's claim. Further, regarding whether pain results in functional impairment of earning capacity, the examiner merely reported “[n]o impairment of earning capacity.” Id. at 5. The Board finds the August 2020 examiner’s opinion to be inadequate for adjudicative purposes, as the examiner failed to consider the Veteran's complaints of pain in relation to her functional impairment, if any, in accordance with Saunders v. Wilkie, 866 F.3d 1356 (Fed. Cir. 2018) (holding that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and that "pain alone can serve as a functional impairment and therefore qualify as a disability"). The Board notes that at the February 2020 VA examination, the Veteran reported intermittent recurrent right ankle pain during flare-ups of her service-connected right knee condition. See 02/06/2020 C&P Exam at 3. Accordingly, the August 2020 examiner’s opinion that there is no impairment of the Veteran’s earning capacity without any consideration of the Veteran’s reports of intermittent recurrent right ankle pain is inadequate. Secondary service connection can be granted based on aggravation, which is defined as any increase in disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). In this regard, the Veteran’s competent reports of “intermittent” right ankle pain may be evidence of an increase in disability and/or impairment of earning capacity. On remand, the examiner must consider that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, the Board finds that the Veteran is to be afforded another VA examination and/or opinion that properly, and adequately, addresses the matters discussed above. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). This matter is REMANDED for the following actions: Obtain an addendum medical opinion from an appropriate clinician regarding the nature and etiology of any current right ankle condition. If the clinician determines that a physical examination is required, then an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible due to the current pandemic) is to be scheduled. The entire claims file, including a copy of this Board remand, is to be made available for the clinician’s review. The clinician is asked to provide an opinion on the following: --Identify all diagnosed right ankle disabilities since January 2013. For each diagnosed right ankle disability, please provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) related to an in-service injury, event, or disease? If no right ankle disability is diagnosed, the examiner must consider whether any pain results in functional impairment of earning capacity. Please explain why or why not. For any identified functional impairment of the right ankle, the examiner must opine on whether it is (i) at least as likely as not (50 percent probability or higher) related to an in-service injury, event, or disease; (ii) caused by the service-connected right knee disability; or (iii) aggravated (defined as any increase in disability) by the service-connected right knee disability. **When providing the opinion requested above, the clinician is to specifically consider the Veteran’s reports of recurrent intermittent right ankle pain during flare-ups of the service-connected right knee disability. See 02/06/2020 C&P Exam at 3.** The clinician is further advised that the Veteran is competent to report her symptoms and history, and such reports are to be specifically considered in formulating any opinion. (CONTINUED ON THE NEXT PAGE)   A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.