Citation Nr: 21029465 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-39 439 DATE: May 13, 2021 REMANDED Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1992 to December 1995. This matter comes to the Board of Veterans' Appeals (Board) from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In October 2019, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the October 2019 hearing is associated with the file. This appealed issue, among others, was previously before the Board in January 2020, when it was determined that remand was necessary in order to ensure that VA fulfilled its duty to assist the Veteran in substantiating her appeal. The Board's prior remand directives and the subsequent actions by the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. 1. Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected disability, is remanded. While further delay is regrettable, the Board concludes that another remand is necessary to ensure that the Board's prior remand directives are substantially completed in furtherance of the Board ensuring that VA fulfills its duty to assist the Veteran in substantiating her appeal. First, in the January 2020 remand, the Board noted that, while the record reflected that the Veteran had participated in VA's Vocational Rehabilitation and Education (VR&E) program, the file was devoid of any records in connection with this program. Accordingly, the AOJ was directed to "obtain and associate with the Veteran's file all records from her participation in VA's Vocational Rehabilitation and Education (VR&E) program." In response, an AOJ employee reached to a VA Rehabilitation Technician via e-mail in August 2020 to request that the Veteran's "VR&E folder" be uploaded to VA's electronic file system. The Rehabilitation Technician replied that all VR&E folders were either already within the Veteran's electronic files, "sitting in the scanner storage to be uploaded, or with counselors if the files are active; however, in the Veteran's case, no "1902b was ever created[,] and the file has been closed out since 2004." No further actions regarding this Board remand directive were completed. While noting the AOJ's efforts, the Board concludes that such do not amount to substantial compliance with the Board's prior remand directive. When a Veteran participates in VA's VR&E program, a Counseling/Evaluation/Rehabilitation (CER) folder is compiled, which includes all records related to the Veteran's participation in such. Upon completion of the program, a VA Form 28-1902b, Counseling Record Narrative Report, is created which summarizes the impact of the Veteran's disabilities on his/her employability. Given this context, it appears from the August 2020 e-mail exchange that the Veteran did not complete the VR&E program, and her CER folder, which has been "closed out" since 2004, is likely "sitting in the scanner storage to be uploaded." The Board acknowledges that the AOJ has internal guidance which provides that requests for CER folders can be fulfilled by associating the Veteran's completed VA Form 28-1902b with the record unless the CER folder has evidentiary value that pertains to the pending claim/appeal. In the present case, in view of the fact that a VA Form 1902b was not completed for the Veteran, obtaining such in lieu of the complete VR&E (CER) file is an impossibility. In sum, the Board concludes that the AOJ's actions do not amount to substantial compliance with the Board's prior remand directive, and thus, another remand is necessary. Further, as noted by the Board in the January 2020 remand, while the Veteran clearly asserts that she injured her right ankle due to a fall that was allegedly caused by her service-connected low back and/or right hip disability, her reports of the time and circumstances of this injury and resulting disability were inconsistent. As directed by the Board in the January 2020, an addendum opinion was obtained in November 2020 concerning the nature and etiology of the Veteran's claimed right ankle disability. After a review of the record, a VA clinician stated that the Veteran's sole right ankle injury, diagnosed as a right ankle sprain, was incurred in April 2014 due to a fall from her bed; however, the clinician further opined that the disability had since resolved, and thus, the requested medical opinions concerning the etiology of this disability were not provided. While the Board acknowledges and appreciates the November 2020 conclusions and opinions, such are inadequate for the purpose of readjudicating the Veteran's appeal. Specifically, while the Veteran's right ankle disability may have resolved since April 2014, such was incurred during the appeal period, and the Court and Federal Circuit have made clear that the criteria of a "current disability" is fulfilled if a disability is diagnosed at any time during or contemporaneous to the appeal period, even if such subsequently resolves. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, another remand is necessary in order to obtain medical opinions addressing whether the Veteran's April 2014 fall from bed was caused by her service-connected low back and/or right hip disabilities, as she asserts. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA and private treatment pertaining to the Veteran, with her assistance regarding the latter. 2. The AOJ must obtain and associate with the Veteran's file all records from her participation in VA's Vocational Rehabilitation and Education (VR&E) program. More specifically, the AOJ must make efforts to locate the Veteran's CER folder and have such scanned into the Veteran's electronic VA file. If the Veteran's CER file is found to be unavailable for review, a formal finding of the unavailability of this evidence outlining the efforts completed in furtherance of this remand directive must be associated with the file. 3. Thereafter, the AOJ must transfer the Veteran's file to an appropriate VA clinician to determine the nature and etiology of any right ankle disability identified during the pendency of her appeal. After a review of the complete filed, the clinician is asked to address the following: a. Identify any right ankle disability present during the pendency of the Veteran's appeal (since August 2013). *If a right ankle sprain incurred in April 2014 is not identified by the VA clinician, this finding must be reconciled with the November 2020 VA opinion. b. For each right ankle disability identified in part (a), provide an opinion concerning whether such is at least as likely as not proximately due to, or the result of, the Veteran's active duty. c. For each right ankle disability identified in part (a), provide an opinion concerning whether such is at least as likely as not caused or aggravated by a service-connected disability. 4. *In addressing part (c), please specifically address the Veteran's assertions that her service-connected low back and/or right hip disabilities have caused her to fall and injure her right ankle in April 2014. 5. Any stated opinion should be supported by a complete rationale. Any stated opinion should be supported by a complete rationale. If the clinician cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 6. *If it is felt that another VA examination is necessary in order to address the above requests, such should be scheduled, and the Veteran should be notified of the time and place to report. (Continued on the next page) 7. When the development requested has been completed, the AOJ must readjudicate the Veteran's appeal on the basis of additional evidence. If the benefit sought is not granted to the fullest extent, the Veteran and her representative should be furnished a copy of the readjudication and be afforded a reasonable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.