Citation Nr: 21027800 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-23 675 DATE: May 6, 2021 REMANDED Entitlement to service connection for a right ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1970 to April 1971 and thereafter, served on the Army National Guard from April 1987 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The matter was previously before the Board in October 2019. It its decision, the Board instructed the RO to obtain the Veteran's outstanding active service treatment records (STRs) pertinent to the Veteran's claimed ankle disability; and to obtain a VA examination determining the nature and etiology of any right ankle disability. The matter has returned to the Board for an appellate review. 1. Entitlement to service connection for a right ankle disability is remanded. At the outset, the Board notes that a portion of the Veteran's service treatment records have been determined to be unavailable. Relevant available service treatment records on file include several in-service routine examinations, but do not include any in-service treatment records for the Veteran's period of active duty service (October 1970 to April 1971). In December 2020, the RO informed the Veteran that his service treatment records could not be located; that all efforts to obtain the needed information have been exhausted; and that further attempts to obtain the records would be futile. Given the missing service treatment records pertinent to the Veteran's claim for a right ankle disability, VA has a heightened duty to assist the Veteran in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Cuevas v. Principi, 3 Vet. App. 542 (1992). Unfortunately, the Board regrets additional delay but cannot make a fully informed decision on this matter because the medical opinions of record are inadequate for adjudicative purposes. Following the Board's October 2019 remand. The Veteran was afforded a VA examination in October 2020. At that examination, the examiner noted a diagnosis of status post calcaneal fracture, diffuse ankle pain. The examiner provided the following opinion and rationale; "While it is not questioned that the Veteran sustained a right calcaneal fracture in service, it is less likely than not that his disability had its onset in service. In reviewing his reports of medical examination, in 1978, he acknowledges that he broke his foot, but the question regarding foot trouble is marked no. According to his 1982, 1990, 1994, and 1996 reports of medical examination he marked that he had not sustained any broken bones and that he was not having any foot trouble. The opinion is based on this and an absence of interval documentation of right foot/ankle pain." The examiner further noted that the consistent denial of right foot/ankle pain, supports her (examiner) negative opinion. See October 2020 C&P Examination. The Board finds that this examination is inadequate for appellate review. The Board notes that the examiner relied too heavily on the Veteran's documented response as a basis for her negative opinion, without adequately addressing lay assertions of an ankle disability since service and the continued symptomatology thereof. In addition, the provided rationale is speculative and conclusory, as it merely provides that the Veteran's condition was not caused by service, but lacks any true basis as to why, other than the Veteran's negative response and the lack of documentation which have been determined to be missing. See Bloom v. West, 12 Vet. App. 185 (1999) (holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As such, the Board finds that a new medical nexus opinion is required. The matters are REMANDED for the following action: 1. Obtain and associated with the Veteran's claims file, all outstanding treatment records. 2. Provide the Veteran's claims file to an appropriate clinician (other than the examiner that conducted the October 2020 examination) to determine the nature and etiology of his right ankle disability. The Veteran may be recalled for examination if deemed necessary. The entire claims file and a copy of this Remand must be made available to the examiner for review. The opinion should address the nature and etiology of the ankle disability and its relationship specifically to the corresponding period of active service from October 1970 to April 1971. The examiner should specifically comment on the Veteran's reported 1970 broken foot (as referenced in the 1978 Report of Medical History) and its relationship, if any, to his current right ankle disability and opine as to whether it is as likely as not (i.e., probability of 50 percent or more) that the Veteran's right ankle disability had its onset during service, or is otherwise related an event or injury in service. In addressing the above, the examiner must consider and discuss all relevant medical evidence, and all lay assertions as to the nature, onset, and continuity of symptoms. In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and that his lay assertions in this regard must be considered and discussed in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded the applicable time to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.