Citation Nr: 21025432 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-23 481 DATE: April 28, 2021 REMANDED Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a left ankle disorder is remanded. REASONS FOR REMAND The Veteran served honorably in the Army from October 1976 to October 1980 and from November 1981 to January 1988. This appeal to the Board is from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran recently testified in support of these claims during a “virtual” hearing in February 2021 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the proceeding is of record. 1. Entitlement to service connection for a right ankle disorder is remanded. 2. Entitlement to service connection for a left ankle disorder is remanded. The Veteran was provided a VA compensation examination in September 2017 during which the examiner concluded that the Veteran’s left and right ankle pain (arthralgia) was at least as likely as not incurred in or caused by repeated trauma from numerous parachute jumps during his military service. That VA examiner also indicated the Veteran’s bilateral ankle condition (manifested as chronic pain that has increased in intensity since his service) prevented him from performing work that requires extensive standing and walking. During the more recent February 2021 virtual hearing before this Board, the Veteran’s representative could not understand how that seemingly favorable medical nexus opinion was insufficient to grant these claims. According to the September 2017 Supplemental Statement of the Case (SSOC), the RO continued to deny these claims – despite that examiner’s favorable opinion during that VA examination – on the premise that arthralgia (i.e., joint pain), alone, absent an underlying diagnosis, is not a ratable disability for VA compensation purposes, so irrespective of that VA examiner’s attribution of the ankle pain to the Veteran’s repeated parachuting activity and consequent ankle trauma in service. Notably, however, since issuance of that SSOC, the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has clarified that the term “disability” in 38 U.S.C § 1110 refers to the “functional impairment of earning capacity”. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Therefore, there are circumstances when pain alone, so even absent a presently diagnosed underlying condition, can cause functional impairment of earning capacity and, therefore, for all intents and purposes be considered a ratable disability. The September 2017 VA examiner’s indication that the Veteran’s ankle pain has worsened since his service to the point of precluding him from performing work requiring extensive standing and walking is at least suggestion, if not outright indication, his pain causes functional impairment of his earning capacity, thus, is at least seemingly sufficient to be considered a ratable disability according to the holdings in Saunders. But the Board also sees the Veteran is already service connected for radiculopathy of his left and right lower extremities, which, according to an earlier August 2015 VA examination report, causes both leg and foot pain owing to his also service-connected low back disability (degenerative disc disease with degenerative arthritis of his lumbar spine). Because of his low back disability, pain radiates into both of his legs and feet. It therefore is unclear whether the pain in the Veteran’s ankles – even if causing impairment of his earning capacity so as to be considered a ratable disability for VA compensation purposes, is a condition apart from the already determined to be service-connected radiculopathy of his lower extremities that also is causing pain radiating into his legs and feet. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994), citing 38 C.F.R. § 4.14. Moreover, even if it is determined that his ankle pain cannot be distinguished (parceled out) from the pain in his legs and feet, this reasonable doubt must be resolved in his favor and for all intents and purposes the pain in his ankles attributed to service-connected disability. See, e.g., Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, these claims are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician (as a supplement to the September 2017 VA examination and opinion) regarding the origins of the Veteran’s bilateral ankle arthralgia (joint pain). Specifically, the examiner is asked to clarify whether the Veteran’s chronic ankle pain since his service is part and parcel of the radiculopathy of his left and right lower extremities that already has been determined to be a service-connected disability associated with (i.e., secondary to) his already service-connected low back disability (degenerative disc disease with degenerative arthritis of his lumbar spine) or whether, instead, his chronic left and right ankle arthralgia (pain) is a separate condition owing to repeated trauma from numerous parachute jumps during his military service. If attributable to a separate condition, specify the underlying diagnosis, including indicating whether arthralgia (joint pain) is causing functional impairment of earning capacity to be considered a ratable disability for VA compensation purposes.   [NOTE: Whether the Veteran actually needs to be re-examined (meaning undergo another in-person examination) to provide this additional medical comment is left to the discretion of the clinician designated to provide this addendum opinion.] To assist in making this important determination, the claims file, including a complete copy of this remand, must be made available to the examiner for review and consideration of the relevant history. When responding, whether favorably or unfavorably, it is essential the examiner provide explanatory rationale – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.