Citation Nr: 21031930 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-50 643 DATE: May 25, 2021 REMANDED Entitlement to service connection for right shoulder arthritis is remanded. Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for a left ankle condition is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1994 to April 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in September 2019. The Board remanded this matter in January 2020 for additional development. The matter is now returned to the Board for further appellate review. 1. Entitlement to service connection for right shoulder arthritis is remanded. In the December 2020 remand, the Board requested the RO obtain an opinion that addresses whether the Veteran's right shoulder disability began in or is etiologically related to his military service, to include falling approximately 40 feet during rappelling training. VA provided the Veteran an examination in January 2021, at which the examiner did not identify any current diagnoses. However, a February 2020 examiner diagnosed the Veteran with right shoulder impingement syndrome and degenerative arthritis. Thus, the Board finds clarification of whether the Veteran has a right shoulder disability is necessary. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). 2. Entitlement to service connection for a right ankle condition is remanded. VA provided the Veteran an ankle examination in January 2021. The examiner opined the Veteran does not have a current diagnosis of a right ankle condition. However, the Veteran has consistently reported his right ankle condition began during active duty service after falling approximately 40 feet during rappelling training and he has experienced continuous pain, stiffness, and instability since. Even if there is no pathology to provide a diagnosis, pain alone can be a disability for VA compensation purposes if it produces functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Therefore, a remand is necessary to obtain a new examination addressing this deficiency. 3. Entitlement to service connection for a left ankle condition is remanded. VA provided the Veteran an ankle examination in January 2021, at which time he reported his ankle condition began during active duty service after he fell during rappelling training. Further, the Veteran submitted a Buddy Statement from his immediate supervisor, who confirmed the incident and noted the Veteran fell approximately 40 feet. The examiner diagnosed the Veteran with degenerative arthritis in his left ankle, but opined that the claimed left ankle disability is less likely than not incurred in or caused by service, in part, because the Veteran's service treatment records do not contain evidence of complaints, treatments, or a diagnosis of a left ankle condition. This opinion is inadequate, as the examiner appears to have impermissibly dismissed the Veteran's reports of an ankle injury in service and continued ankle symptoms after this injury solely because these complaints were not documented in medical treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Accordingly, a remand is necessary to obtain an adequate examination. The matters are REMANDED for the following action: 1. Obtain an opinion regarding the etiology of any current right shoulder disability, to include impingement syndrome and degenerative arthritis. For each right shoulder disability diagnosed at any point during the appeal period, the examiner must opine whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the current disability is related to the Veteran's military service, to include the in-service fall incurred during rappelling training. The examiner may not dismiss the account of the in-service fall during rappelling training solely because it is not documented in contemporaneous treatment records If the clinician determines that the Veteran has not had right shoulder impingement syndrome or right shoulder degenerative arthritis at any point during the appeal, the examiner must explain why he or she concluded that the diagnoses of impingement syndrome and/or degenerative arthritis reflected in the record was made in error. If the clinician determines that there has been no current diagnosed shoulder disability at any point during the appeal, the clinician must address whether the Veteran's current right shoulder symptoms, to include pain, results in functional loss. If the symptoms, to include pain, result in functional loss, the clinician must opine whether the current symptoms, to include pain, are at least as likely as not related to the Veteran's active duty service, to include the in-service fall during rappelling training. If the examiner determines that an additional in-person examination is required, one should be scheduled. Please note, if the examiner deems it reasonable, an alternate format such as a telehealth interview is acceptable. The Veteran should not be scheduled for an additional examination unless deemed necessary by the selected clinician. 2. Obtain an opinion regarding the etiology of any current right ankle disability. For each right ankle disability diagnosed at any point during the appeal period, the examiner must opine whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the current disability is related to the Veteran's military service, to include the in-service fall incurred during rappelling training. The examiner may not dismiss the Veteran's contention of an in-service fall incurred during rappelling training solely on the basis that it is not documented in contemporaneous treatment records. If the clinician determines that there has been no current diagnosed right ankle disability at any point during the appeal, the clinician must address whether the Veteran's current right ankle pain and stiffness result in functional loss. If the pain and stiffness results in functional loss, the clinician must opine whether the pain is at least as likely as not related to the Veteran's active duty service, to include the in-service fall during rappelling training. If the examiner determines that an additional in-person examination is required, one should be scheduled. Please note, if the examiner deems it reasonable, an alternate format such as a telehealth interview is acceptable. The Veteran should not be scheduled for an additional examination unless deemed necessary by the selected clinician. 3. Obtain an opinion from an appropriate clinician to determine whether the Veteran's left ankle condition, to include degenerative arthritis, is related to his military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Please note, if the examiner deems it reasonable, an alternate format such as a telehealth interview is acceptable. (Continued on the next page) Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ankle condition, to include degenerative arthritis, began in or is otherwise related to the Veteran's active service, to include the Veteran's lay statements regarding falling approximately 40 feet during rappelling training. These contentions may not be dismissed by the clinician solely because they are not documented in the Veteran's service treatment records and any negative opinion must be supported by a rationale that goes beyond simply noting that a specific in-service injury is not documented in treatment records. The examiner should address any other pertinent evidence of record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.