Citation Nr: 21025601 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 12-22 871 DATE: April 28, 2021 ISSUES 1. Entitlement to service connection for residuals of a hairline fracture of the left ankle (a left ankle disability). 2. Entitlement to service connection for a left knee disability, to include as due to a left ankle disability. 3. Entitlement to service connection for a heart disability. REMANDED Entitlement to service connection for residuals of a hairline fracture of the left ankle (a left ankle disability) is remanded. Entitlement to service connection for a left knee disability, to include as due to a left ankle disability is remanded. Entitlement to service connection for a heart disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1978 to June 1984. The Veteran died in October 2020, and the Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Following the rating decision, and prior to his passing, the Veteran filed a timely Notice of Disagreement (NOD) in May 2010. He was issued a statement of the case (SOC) in July 2012, and the Veteran filed a VA Form 9 in August 2012, in which he requested a hearing. The Veteran then testified at a March 2015 video teleconference hearing before a Veterans Law Judge, who is no longer employed by the Board. A transcript of the hearing is of record. The law requires that the Veterans Law Judge, who conducts a hearing on an appeal, must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. As such, the RO sent the Veteran a letter, requesting if he would like to appear at another Board hearing. The Veteran responded that he did not wish to appear at another Board hearing. 38 U.S.C. § 19.3 (b). Each of the claims were then remanded by the Board in February 2016. When the claims returned to the Board in August 2019, the Board determined that the Veteran was not notified of a VA examination at his most recent address, so the claims were remanded again for a VA examination. See 38 U.S.C. § 5103; 38 C.F.R. §§ 3.159, 3.326. The claims were then returned to the Board in September 2020, however the Board determined that the VA examinations given to the Veteran were inadequate. Therefore, the claims were remanded again. Upon review of the Veteran’s claim file, the Board finds that there has not been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Unfortunately, the Veteran then passed away in October 2020. As a result, when each of the above claims were returned to the Board in November 2020, they were dismissed as a matter of law. In April 2021 the Appellant requested to be substituted as the claimant in the Veteran’s claims pending at the time of his death. This request for substitution was granted by the RO in correspondence from April 2021. Therefore, 38 U.S.C. § 5121A and implementing regulation 38 C.F.R. § 3.1010 are applicable, and the Appellant’s claim is not one for accrued benefits, but remains the Veteran’s original claim, into which she is properly substituted. Each of the above claims have since returned to the Board. 1. Entitlement to service connection for residuals of a hairline fracture of the left ankle (a left ankle disability) is remanded. The Veteran had claimed that his left ankle disability was related to his active duty service. The Veteran testified in March 2015 that he was getting out of his military truck and “I don’t know if I stepped on something or what, how I twisted it, but I actually twisted my ankle over and I was in so much pain.” He later clarified that his ankle was fractured, placed in a cast, and that he was given pain medication. To establish an entitlement to service connection, the Appellant must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As noted above, the Appellant’s claim was remanded in September 2020. That Board Decision found that a December 2019 VA examination was inadequate, as the report provided by the VA examiner did not address the Veteran’s March 2015 testimony regarding him twisting his ankle when getting out of a truck during service. Thus, the claim was remanded for a VA examination. As was also noted in the Board’s August 2019 remand, the examiner was to consider the following: a November 1984 VA examination report which noted the Veteran’s reported history of a sprained left ankle incurred while playing basketball during service; a March 2005 VA treatment record which showed that the Veteran reported having chronic leg pain; and July 2010 x-rays which showed soft tissue swelling around the left ankle, but were negative for fracture. This is in addition to his March 2015 testimony. That claim was remanded for a VA examination, however due to the Veteran’s passing, that examination never occurred. Having said that, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Appellant’s claim for entitlement to service connection so that they are afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The claim must be remanded for a VA addendum opinion which addresses the etiological questions provided in the August 2019 and September 2020 Board remands. See further, Stegall v. West, 11 Vet. App. 268, 271 (1998), (a remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board’s remand order). 2. Entitlement to service connection for a left knee disability, to include as due to a left ankle disability is remanded. The Veteran had claimed that his left knee disability was related to his active duty service. He had also claimed that his left knee disability may have been aggravated by his left ankle disability. The Veteran had reported that his left knee problems began in 1980 or 1981 from a training exercise during which he was crossing a road, over an embankment, and had “a long fall.” See March 2015 Board hearing. Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). As noted above, the Appellant’s claim was remanded in September 2020. That Board remand found the December 2019 VA examination inadequate because the report provided did not address the Veteran’s testimony regarding his knee injury, nor a service treatment record from February 1984 discussing “swollen painful joints left knee complaints of occasional pain,” as was directed by the Board in the prior remand from August 2019. Thus, that claim was remanded for a VA examination, however due to the Veteran’s passing, the examination never occurred. Again, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). See further, Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, the claim must be remanded for a VA addendum opinion which addresses the etiological questions provided in the August 2019 and September 2020 Board remands. See further, Stegall, Id. 3. Entitlement to service connection for a heart disability is remanded. The Veteran had claimed that his heart disability was related to his active duty service. The Veteran testified in March 2015 that in 1983 he was “having problems with chest pains and everything,” and that he was placed on a heart monitor machine because “they didn’t have an [electrocardiogram].” He further testified that he would have chest pains for days at a time and that he still had the issues following his separation from service. As noted above, the Appellant’s claim was remanded in September 2020. That Board remand found the December 2019 VA examination inadequate because the Veteran’s March 2015 testimony was not addressed, where he stated that he continued to have chest pain and unspecified heart problems since service. The Board additionally notes, as highlighted in the August 2019 Board remand, that the examiner was to discuss service treatment records from January 1980, December 1983, and February 1984 which show that the Veteran complained of chest problems, along with shortness of breath and dizziness. An April 1984 separation examination further contained a diagnosis of “palpitations history associated with dizziness,” and a record from two weeks later, noted a diagnosis of “syndrome of palpitations, shortness of breath, systolic click – suspect Barlow’s syndrome.” Thus, that claim was remanded for a VA examination, however due to the Veteran’s passing, the examination never occurred. Again, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). See further, Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, the claim must be remanded for a VA addendum opinion which addresses the etiological questions provided in the August 2019 and September 2020 Board remands. See further, Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Forward the Appellant’s claims file to an appropriate clinician(s) for an addendum opinion(s) to determine the nature and etiology of the Veteran’s left ankle, left knee, and heart disabilities. The claims file should be forward to different clinicians/specialists as deemed necessary. The claims folder and this remand must be made available to the examiner(s) for review, and the examination report(s) must reflect that such a review was undertaken. After reviewing the claims file, the clinician(s) is asked to provide opinions as to the following: As it relates to the left ankle claim: (a.) Opine as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s left ankle disability was causally related to, or aggravated by, his military service. Any opinion should include a complete rationale and should take into account the lay statements and the March 2015 testimony provided by the Veteran, where he testified to twisting his ankle when getting out of a truck during service. The examiner is also asked to consider the following: a November 1984 VA examination report noting a sprained left ankle incurred while playing basketball during service; a March 2005 VA treatment record showing complaints of chronic leg pain; and July 2010 x-rays showing soft tissue swelling around the left ankle. As it relates to the left knee claim: (b.) Opine as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s left knee disability was causally related to, or aggravated by, his military service. Any opinion should include a complete rationale and should consider the lay statements and the March 2015 testimony provided by the Veteran, as well as the February 1984 service treatment record indicating swollen/painful left knee pain. (c.) If not, opine whether the Veteran’s left knee disability, was at least as likely as not (1) proximately due to his left ankle disability, or (2) aggravated beyond its natural progression by the left ankle disability. The examiner is reminded that an opinion on possible aggravation is required. As it relates to the heart disability claim: (d.) Opine as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s heart disability was causally related to, or aggravated by, his military service. Any opinion should include a complete rationale and should consider the lay statements and the March 2015 testimony provided by the Veteran. The examiner is also asked to consider service treatment records from January 1980, December 1983, and February 1984 which show complaints of chest problems, shortness of breath and dizziness, the April 1984 separation exam, containing a diagnosis of “palpitations history associated with dizziness,” and a later diagnosis of “syndrome of palpitations, shortness of breath, systolic click – suspect Barlow’s syndrome.” All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner 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 it is to find against it. If the examiner finds that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). 2. After completing the development noted above, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue an SSOC to the Appellant and her Representative. After they have had an adequate opportunity to respond, return the appeal to the Board. The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, Associate 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.