Citation Nr: 21031252 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 15-26 352 DATE: May 21, 2021 REMANDED Entitlement to service connection for a left ankle disability, to include as secondary to a right ankle disability, is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1979 to February 1983, with service in the Army Reserves from 1984 to 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in March 2019, it was remanded for additional development. The case has now been returned to the Board for further appellate consideration. The Board notes the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) in October 2018. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. However, the VLJ who conducted the October 2018 Board hearing is no longer employed by the Board. In April 2021, the Veteran and his representative were sent a letter notifying them that the VLJ who presided over the October 2018 hearing is no longer employed by the Board and offering another hearing before a different VLJ. The letter notified the Veteran that he had 30 days from the date of letter to respond and that if no response was received the Board will assume the Veteran does not want another hearing and the Board will proceed accordingly. The Veteran did not respond to the letter. As such, the Board will consider the case on the evidence of record. Entitlement to service connection for a left ankle disability, to include as secondary to a right ankle disability, is remanded. The Veteran was afforded a VA examination in December 2019. The examiner opined that it was less likely than not that the Veteran's left ankle disability was proximately due to or a result of the Veteran's right ankle disability; however, the examiner does not address the Veteran's contentions that his right ankle disability caused him to shift and carry his weight on his left side. Furthermore, the examiner did not address whether the left ankle disability was aggravated by the service-connected right ankle, which could also result in a grant of service connection. 38 C.F.R. § 3.310(b); see generally El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). In that regard, the examiner generally stated that "arthritis or injury to one joint cannot cause arthritis or injury to another joint," without providing an opinion regarding whether the service connected disability aggravated the Veteran's left ankle disability beyond its natural progression. Thus, a remand is necessary to obtain an adequate opinion regarding secondary service connection. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. The Board notes that the Veteran was granted service connection for an unspecified depressive disorder (claimed as acquired psychiatric disorder) in June 2020. The Veteran was afforded a VA examination in December 2019. The examiner indicated the Veteran was not exposed to a traumatic event; however, the Veteran testified at his hearing in October 2018 that he witnessed a vehicle accident where a soldier was killed. Additionally, a 2014 examination notes he was shot at, resulting in two soldiers being injured around 2005-2006 in Romania. Neither event was considered in the most recent VA examination for PTSD; thus, a remand is necessary to provide an adequate diagnosis and opinion. The Board observes that this appeal was initially certified to the Board prior to August 4, 2014; thus, the Veteran's claim should be examined under both the DSM-IV and DSM-V criteria. See 38 C.F.R. § 4.125; 79 Fed. Reg. 45,093, 45,094-096 (Aug. 4, 2014); 80 Fed. Reg. 14,308 (Mar. 19, 2015) (providing that for claims that were initially certified for appeal to the Board, the Court, or the U.S. Court of Appeals for the Federal Circuit prior to August 4, 2014, DSM-IV will apply. For all applications for benefits received by VA or pending before the agency of original jurisdiction on or after August 4, 2014, DSM-V will apply). The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to a qualified VA examiner for an opinion regarding the etiology of the Veteran's left ankle disability. If an additional examination of the Veteran is deemed warranted, such examination should be provided. Following a review of the relevant records and lay statements, the examiner is asked to provide a response to the following: (a.) Is the Veteran's current left ankle disability at least as likely as not (i.e., a 50 percent or greater probability) caused by the Veteran's service-connected right ankle disability? (b.) Is the Veteran's left ankle disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's service-connected right ankle disability? Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that the Veteran's left ankle disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale should be provided for all opinions. The clinician is asked to consider and address relevant lay and medical evidence, to specifically include the Veteran's testimony during his October 2018 hearing that his right ankle disability causes him to favor and shift his weight to his left ankle. 2. The examiner is asked to provide an opinion as to whether any current PTSD is at least as likely as not (i.e., a 50 percent or greater probability) related to the Veteran's active duty military service. The examiner should specifically discuss the Veteran's testimony regarding an in-service vehicle accident and death and statements regarding a 2005-2006 incident of being involved in a gun fight. The examiner should consider the diagnosis of PTSD under both the criteria provided by the DSM-IV and DSM-V. The examiner must provide a comprehensive rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Townsend, 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.