Citation Nr: 21030977 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-29 157A DATE: May 20, 2021 REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. REASONS FOR REMAND 1. Entitlement to service connection for a right ankle and/or left ankle disability is remanded. The Veteran had active service in the U.S. Navy from October 1987 to October 1990 and had additional reserve service. These matters originate from an appeal of an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board of Veterans' Appeals (Board) and remanded in September 2018 and August 2020. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed below, the Board finds that there has not been substantial compliance with its August 2020 remand directives. Also as discussed below, VA has not yet satisfied its duty to assist. An additional remand is thus necessary. As an initial matter, the Board finds that remand is necessary to ensure that VA has satisfied its duty to assist with regard to verifying all periods of service and obtaining medical records associated with all the Veteran's periods of service. VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim 38 U.S.C. § 5103A. This duty includes obtaining service treatment records (STRs) and other relevant records pertaining to the claimant's active military, naval, or air service that are held or maintained by a governmental entity. Id. Whenever VA attempts to obtain such records from a Federal department or agency under 38 U.S.C. § 5103A, the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Id. Here, the Veteran's military personnel records reflect that while he was discharged from active service in the U.S. Navy in October 1990, he was not discharged from reserve service until October 1995. The Veteran's STRs include notes reflecting he was medically cleared from release from active duty for training (ACDUTRA) in March 1992. However, the record currently before the Board does not include a full accounting of all periods of the Veteran's service, and it is unclear whether all medical records associated with the Veteran's reserve service have been obtained, or whether attempts to obtain them have been made. Accordingly, the Veteran's bilateral ankle claim should be remanded for the RO to make appropriate attempts to verify all periods of service after October 1990, and to obtain any associated STRs. The Board also finds that remand is necessary to obtain an adequate VA examination consistent with its September 2018 and August 2020 remand directives. The Veteran contends that he has a disability of the right and left ankles. A March 1989 treatment note in the STRs reflects a complaint by the Veteran that he injured his right ankle playing basketball; the Veteran was treated by military providers at that time. At his October 1990 separation examination, the Veteran reported ankle pain. At his July 2017 Board hearing the Veteran contended that his currently claimed left ankle disability is the result of compensating for the right ankle following the March 1989 complaint of right ankle pain. The Veteran also testified that he injured his left ankle at the same time as his right ankle in March 1989. At his July 2017 hearing the Veteran also testified that he fell down a ladder on board ship during his active service. In September 2018 the Board remanded the Veteran's bilateral ankle claims for a VA examination and medical opinion as to the nature and etiology of the Veteran's claimed bilateral ankle disability. At that time, the Board specifically noted the March 1989 and October 1990 entries in the Veteran's STRs regarding his right and/or left ankles. The Veteran was afforded a VA examination in relation to his ankles in July 2019. The Veteran reported ongoing aches and pains in his right and left ankles since the time of his active service. The Veteran also reported flare ups manifesting as frequent increases in severe pain. The July 2019 VA examiner opined that the Veteran had no current diagnosis of any disability of the right and/or left ankles. In August 2020 the Board found that the July 2019 VA examination was inadequate, as it did not reflect consideration of the March 1989 and October 1990 entries in the Veteran's STRs regarding his ankle(s); in fact, the examiner stated that there was no evidence of any ankle injury during the Veteran's active service. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board remanded the Veteran's bilateral ankle claims to obtain a VA medical opinion that reflected consideration of all evidence of record. A VA medical examination and opinion was obtained in October 2020. The Veteran again reported ongoing pain in his right and left ankles, with stiffness in the mornings. The Veteran stated that first thing in the mornings his ankles would not hold his weight. Following a physical examination including range of motion testing and radiological studies of both ankles, the October 2020 VA examiner stated that there was "no current pathology to render a diagnosis related to ankle." However, the Board now finds that the October 2020 examination also does not reflect any consideration of the March 1989 and October 1990 entries in the Veteran's STRs regarding complaints of, and/or treatment for, ankle pain. The only STR noted by the October 2020 VA examiner is a purported August 1986 record; the Board cannot reconcile this with its finding that the Veteran was first afforded a military physical examination in June 1987 prior to his October 1987 entry into active service. Laypeople are competent to report symptoms and experiences observable by their senses, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). To the extent the October 2020 VA examiner's opinion discounts the Veteran's reports of bilateral ankle pain, it must be supported by factually accurate, fully articulated, sound reasoning based on review of all medical and lay evidence of record. Here, the October 2020 VA examiner's opinion does not reflect consideration of the March 1989 and October 1990 STR entries regarding the Veteran's right and/or left ankle and, in fact, appears to reference a military medical record that predates the Veteran's period of active service by approximately one year. Accordingly, the Board finds that the October 2020 opinion is inadequate, and the Veteran's bilateral ankle claims should be remanded to obtain an addendum opinion resolving these deficiencies, as well as addressing any medical records obtained pursuant to the discussion above regarding the Veteran's reserve service after October 1990. The matters are REMANDED for the following action: 1. Take all necessary steps to verify all of the Veteran's period(s) of Active Duty, Active Duty for Training (ACDUTRA), Inactive Duty for Training (IDT), Active Duty for Special Work (ADSW), and/or any other periods of service for the period(s) after October 1990. Reserve retirement point sheets are not adequate for this purpose; rather, the specific dates of the Veteran's periods of service, including Active Duty, ACDUTRA, ADSW, and IDT, are required. If this information or documentation is unavailable this fact should be documented, and a formal finding of unavailability should be made with notice to the Veteran and his representative and they should be given an opportunity to respond. 2. Following the completion of remand directive 1, forward the claims file, including this remand and any material obtained pursuant to remand directive 1, to the examiner who provided the October 2020 opinion. If the October 2020 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should opine as to the existence, nature, and etiology of any right and/or left ankle disabilities, to include whether pain has resulted in functional loss. The examiner's opinion should reflect consideration of all evidence of record, to include the March 1989 and October 1990 entries in the Veteran's STRs regarding his right and/or left ankles, and the Veteran's subsequent reports of bilateral ankle pain since service. With respect to any identified ankle disabilities, the examiner should state whether it is at least as likely as not to be the result of an event, injury, or occurrence in service, to include the March 1989 ankle injury documented in his STRs, and/or the fall from the ladder to which the Veteran testified at his July 2017 Board hearing. If a disability of one ankle but not the other is determined to be service connected, the examiner should address whether the non-service connected ankle is at least as likely as not (1) proximately due to his service connected ankle disability or (2) aggravated beyond its natural progression by service-connected ankle disability. If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner explain why an opinion cannot be provided and specifically state whether the inability to provide an opinion is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that would allow for an opinion on this matter. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. C. Sametshaw 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.