Citation Nr: 21026467 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-56 922 DATE: May 3, 2021 ORDER Entitlement to service connection for a left ankle disability is denied. REMANDED Whether the reduction of a disability rating for status post right knee meniscus repair with arthritis from 10 percent to noncompensable (0 percent), effective June 1, 2015, was proper, is remanded. Whether the reduction of a disability rating for status post left knee meniscus tear from 10 percent to noncompensable (0 percent), effective June 1, 2015, was proper, is remanded. Entitlement to a rating in excess of 10 percent for limitation of motion of the right knee is remanded. Entitlement to a rating in excess of 10 percent for limitation of motion of the left knee is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a left ankle disability at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1976 to August 1979 and from February 1981 to July 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2014 and March 2015 rating decisions issued by the Department of Veterans Affairs regional office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned at a virtual tele-hearing hearing in August 2020. A transcript of the hearing is associated with the claims file. The Board notes that at the hearing, the undersigned allowed testimony as to the severity of the Veteran's right ankle, insofar as the Veteran stated that he was seeking a higher rating for his right ankle, rather than service connection for his left ankle, which was the issue that had been previously appealed and certified to the Board. It was noted on the record that testimony was being permitted on this issue subject to the Board's jurisdiction. Upon review of the file, the Board notes that the September 2014 rating decision on appeal continued a 20 percent rating for residuals, subtalar dislocation and fracture of the right navicular with traumatic arthritis and tripe arthrodesis. The Veteran specifically excluded the issue of a higher rating for his right ankle condition in his October 2014 Notice of Disagreement (NOD). As such, the Board does not have jurisdiction to address the issue of a higher rating for the Veteran's service-connected right ankle disability. That stated, the Veteran is advised that if he wishes to file an increased rating claim for his service-connected right ankle disability, he must do so on the form prescribed by the Secretary. See 38 C.F.R. §§ 3.1(p), 3.155, 3.160. Finally, the Board notes that while the Veteran was previously represented in this matter by AMVETS, AMVETS withdrew its representation in May 2015, and the Veteran clarified at his August 2020 Hearing that he wished to proceed without representation. Service Connection Left Ankle Disability The Veteran contended in his June 2014 claim for service connection that he was seeking service connection for his left ankle as secondary to his right ankle. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board concludes that the Veteran does not have a current disability of a left ankle and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Importantly, the Veteran stated at his August 2020 Board hearing that he was not actually seeking service connection for his left ankle and that his symptomatology referred to his already service-connected right ankle. The Board adds that at an August 2014 VA ankle conditions examination, the Veteran did not endorse any left ankle symptoms and demonstrated full range of motion in his left ankle. In a corresponding opinion, the examiner wrote that while the Veteran did have some painful left ankle symptoms, and that while there were some abnormal objective findings, there was not sufficient evidence to support that the Veteran suffered from a left ankle condition. This is supported by the other medical evidence of recordincluding VA treatment records which do not show any complaints of, treatment for, or diagnoses of any left ankle conditionsas well as the Veteran's own statements that he does not suffer any manifestations of an ankle condition productive of a functional impairment in earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In sum, the Veteran has not been diagnosed with a left ankle disability, he has not indicated that he has pain productive of functional impairment associated with his left ankle, and most notably, he expressed at his August 2020 Board hearing that not only was he not seeking service connection for his left ankle, but that he did not have any left ankle symptoms or disabilities. Accordingly, the preponderance of the evidence is against the claim of service connection for a left ankle disability, and the claim must be denied. In denying this claim, the Board recognizes that VA treatment records dating from June 2017 to the present have not been associated with the claims file. The unique facts of this case do not require the Board to first obtain these records before deciding the issue. Indeed, the Veteran has made clear at his hearing before the Board that he does not wish to pursue a service-connection claim for his left ankle, and in fact, never meant to, stating that he does not have a current left ankle disability. REASONS FOR REMAND 1. Whether the reduction of a disability rating for status post right knee meniscus repair with arthritis from 10 percent to noncompensable (0 percent), effective June 1, 2015, was proper. 2. Whether the reduction of a disability rating for status post left knee meniscus tear from 10 percent to noncompensable (0 percent), effective June 1, 2015, was proper. In the September 2014 rating decision on appeal, the Agency of Original Jurisdiction (AOJ), in part, proposed that the ratings for right knee meniscus repair with arthritis and status post left knee meniscus tear each be reduced to 0 percent disabling. The Veteran attempted to disagree with the proposals to reduce in an October 2014 NOD, and the AOJ sent him a letter in November 2014 advising him that his October 2014 NOD was premature insofar as the reductions had not yet been carried out. The reductions were subsequently effectuated in a March 2015 rating decision, and the Veteran submitted a timely NOD in May 2015, specifically disagreeing with the reductions. Although the AOJ addressed the Veteran's knee increased rating claims in the August 2017 Statement of the Case (SOC), the AOJ did not issue a SOC addressing the propriety of the rating reductions. Accordingly, the AOJ should issue an appropriate SOC on the issues of the propriety of the rating reductions. See 38 C.F.R. § 19.9(c), codifying Manlincon v. West, 12 Vet. App. 238 (1990). 3. Entitlement to a rating in excess of 10 percent for limitation of motion of the right knee. 4. Entitlement to a rating in excess of 10 percent for limitation of motion of the left knee. The Veteran is seeking higher ratings for his bilateral knee disabilities. At his August 2020 Board hearing, the Veteran testified that both knees had worsened insofar as he experienced locking, swelling, and constant pain, and that he had undergone knee injections as recently as two months prior to the hearing. Considering the above, the Board finds that the most recent June 2017 VA examination may not accurately reflect the current the severity of the Veteran's knee conditions, and he should undergo a new VA knee examination. The updated examination must comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), and the examiner should include assessments of any functional loss during flare-ups, or upon repetitive motion. Also, at the August 2020 Hearing, the Veteran identified relevant outstanding private treatment records from his family physician. On remand, the Veteran should be afforded an opportunity to submit such records, or allow VA to obtain such records on his behalf. Finally, the evidence indicates that there may be outstanding relevant VA treatment records. At his Hearing, the Board reported that he had received pain injections in his knee two months prior to the hearing. As VA treatment records in the file date only to June 2017, updated records must be obtained. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records dated since June 2017. 2. Ask the Veteran to submit private treatment records from his family doctor, or alternatively, to complete a VA Form 21-4142 records release form for such records. Take all appropriate action to obtain identified treatment records. 3. Schedule the Veteran for an examination to determine the current severity of his service-connected bilateral knee disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluation the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should report or estimate functional loss during flare-ups and after repetitive use in terms of the degree of additional loss of range of motion. All examination findings, including rationales, should be set forth. 4. Issue a SOC addressing whether reductions of the ratings for right knee meniscus repair with arthritis and left knee meniscus tear, each from 10 percent to 0 percent, effective June 1, 2015, were proper. 5. Readjudicate the issues on appeal. If the benefits sought remain denied, issue the Veteran a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.