Citation Nr: 21032656 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-45 278 DATE: May 27, 2021 REMANDED Service connection for a new right ankle fracture is remanded. A temporary total evaluation for convalescence due to treatment for a service-connected right ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1977 to July 1980. This case returns to the Board of Veterans' Appeals (Board) after a remand to the agency of original jurisdiction (AOJ) in May 2019. On remand, the AOJ granted service connection for a lumbar spine disability, bilateral plantar fasciitis, bilateral knee disabilities, bilateral hip disabilities, and a left ankle disability. See June 2020 rating decision. These service connection issues are no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The remaining issues on appeal are entitlement to service connection for a "new" right ankle fracture, and a temporary total evaluation for convalescence due to treatment for a service-connected right ankle disability. The two issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009). By way of background, an April 1981 rating decision granted service connection for post-operative residuals of a 1979 right ankle fracture. In January 2016, the Veteran filed a claim for a temporary total evaluation for ankle surgery. Medical records show that he underwent surgery after falling and fracturing the right ankle in October 2015. The AOJ denied service connection for this "new" fracture, as well as the temporary total evaluation claim in its June 2016 rating decision. This appeal followed. Essentially, the Veteran contends that his service-connected right ankle disability proximately caused or aggravated the 2015 ankle injury and resulting surgery. See e.g. April 2021 brief. The Board remanded for a new examination of the ankle, and specifically instructed the examiner to provide opinions on both proximate causation and aggravation. In January 2020, a VA contract examiner confirmed a current diagnosis of degenerative arthritis in the ankle. The examiner determined that this diagnosis is at least as likely as not proximately due to the service-connected disability, because posttraumatic degenerative joint disease is a common complication of the Veteran's in-service injury. However, the examiner did not discuss the etiology of the 2015 ankle fracture. In August 2020, a second examiner determined that the 2015 fracture was less likely than not proximately due to the service-connected disability. This examiner reasoned that "medical literature failed to demonstrate a causal relationship," and that there is "a lack of chronicity" documented in the claims file between the initial fracture and the latter injury. The August 2020 opinion is inadequate insofar as the examiner overlooked the Veteran's documented complaints of chronic right ankle pain going back to at least the February 1989 VA examination. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a VA examiner may not ignore pertinent lay evidence); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value). Furthermore, the August 2020 examiner failed to provide an opinion on aggravation, as the Board instructed. El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (VA medical opinions on secondary service connection must sufficiently address both causation and aggravation). Another remand is therefore necessary to ensure compliance with the Board's previous instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain an addendum opinion on the etiology of the Veteran's 2015 right ankle fracture and resulting treatment/surgery. Schedule the Veteran for another examination only if the examiner deems it necessary to render the requested opinions. After reviewing the claims file, including this remand, the examiner must address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the 2015 right ankle fracture (and resulting surgery) was proximately due to the service-connected right ankle disability? (b.) Is it at least as likely as not (50 percent or greater probability) that the 2015 right ankle fracture (and resulting surgery) was aggravated beyond its natural clinical course by the service-connected right ankle disability? The examiner's opinion must reflect consideration of the Veteran's lay statements, including his October 2018 testimony, and the prior VA examinations of the ankle. 2. Review the medical opinion(s) above to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 3. Readjudicate the claims in a supplemental statement of the case, and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.