Citation Nr: 21025839 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 18-26 265 DATE: April 29, 2021 REMANDED Entitlement to service connection for residuals of a left ankle injury is remanded. REASONS FOR REMAND The Veteran had active service from September 1951 to August 1953. This matter comes to the Board on appeal from a November 2016 rating decision. The Veteran testified at a videoconference hearing before the undersigned in July 2018. The matter was then remanded for additional development in August 2018. Entitlement to service connection for residuals of a left ankle injury is remanded. The August 2018 Board remand directed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s claimed left ankle disability. The remand directives noted that the Veteran’s service medical records were lost in a fire, and that careful consideration should be given to the Veteran’s lay statements as to continuity of symptomatology and onset. The resulting VA examination occurred in June 2019. The VA examiner opined that the Veteran’s current left ankle disability was less likely than not incurred in or caused by service. She reasoned that the Veteran had subjective documentation of a left ankle fracture per submission of photos of him in uniform with a cast on his left ankle, and that per history he did not seek further treatment and worked until retirement at an automotive plant. She stated that he sought evaluations for left ankle pain in recent years, noting the year 2017, and pointed out that was greater than 50 years after service. An addendum opinion was requested and the same examiner further noted in July 2019 that the in-service injury was acute only, and that the Veteran sought treatment for ankle pain greater than 40 years after injury, with no evidence of chronic care. The Board finds the opinions inadequate for decision-making purposes. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The Board initially notes that the Veteran is only able to provide subjective evidence of a left ankle injury in service at no fault of his own, due to a well-documented fire. However, the Board finds his submission of a photograph of the Veteran wearing a boot on his left foot, in uniform, dated January 1952, to be extremely probative in establishing that he sustained a left ankle injury in-service. The Veteran’s testimony surrounding the incident was detailed and credible. Further, a lay witness statement from the Veteran’s brother attested to the authenticity of the photograph. The 2019 VA examiner did not give careful consideration to the Veteran’s lay statements, or the medical record on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran submitted a document in February 2019 indicating that he was not treated for his ankle by another physician as he just worked through the pain and discomfort because he knew there was nothing that could be done to fix it. He reiterated that he has had the ankle injury nearly his whole life. The Veteran further testified that he had applied to be a paratrooper, but was rejected due to his ankle. He also testified that his ankle pain has continued since service, and has worsened with age. The 2019 VA examiner suggests that the record did not show evidence of chronic care, and that he was not seen for more than 40 or 50 years after service for his condition, initially noting he was seen in 2017. The record contains VA treatment records from 1999 that show the Veteran complaining of a left ankle injury in-service that was causing him increasing pain. These complaints were many years before the Veteran filed any claim for VA benefits. The Board is unclear how, given the Veteran’s testimony that he worked through the pain, a record of complaints over 20 years old is not evidence of chronicity. The Board does not reasonably expect to have available medical records that are 40 to 50 years old. The Board requires additional rationale supported by medical principles to better understand why the Veteran’s injury was only acute, despite his testimony and medical evidence to the contrary and absent evidence of an intercurrent injury. Further, it is unclear how his work at an automotive plant is relevant to showing he did not have an ankle condition. The Board does not have information as to the Veteran’s particular duties at that occupation and whether it would involve heavy use of the ankle. Further, the medical evidence of record contains an October 2017 left ankle MRI report. The report states that “the radiologist reports a probable anterior talofibular ligament tear from the past.” The 2019 VA examiner did not address the MRI report that suggests the Veteran had an old injury, consistent with his testimony. Given the above, an addendum opinion is necessary on remand. The matters are REMANDED for the following action: 1. Forward the record and a copy of this remand to an examiner other than the one who provided the June 2019 and July 2019 ankle opinions. The examiner must review the entire record, including this remand. An additional examination should be scheduled if necessary to provide an adequate opinion. The examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current left ankle disability was incurred in or caused by service. The examiner is advised that the Veteran’s service treatment records are unavailable due to a fire, and this should not weigh against the Veteran. The examiner is further advised that absent medical rationale to undermine his contentions, the Board finds the Veteran’s testimony regard the onset and continuity of his symptoms to be credible. The examiner should carefully consider the Veteran’s lay statements regarding the onset of any ankle symptoms and continuous nature of his symptoms since service. The Board directs the examiner to medical records from December 1999 that show the Veteran complaining of an old service injury of the left ankle. (Continued on the next page)   If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a complete rationale for each opinion given. 2. Readjudicate the claim in light of this and all other additional evidence. If the claim continues to be denied send him and his representative a Supplemental Statement of the Case and give an opportunity to respond to it before returning the file to the Board for further appellate consideration of the claim. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.