Citation Nr: 21039779 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-23 214 DATE: July 1, 2021 REMANDED Entitlement to service connection for a bilateral ankle condition, to include as secondary to service-connected bilateral knee disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1975 to February 1979. These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision, which originally denied the claim, and an April 2013 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO), which continued the denial on the merits. By way of background, the Board notes the matter was previously before the Board in July 2019, at which time it was remanded for further evidentiary development. Although regretting the additional delay, the Board finds that remand is again needed before a decision may be rendered on the claim. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a bilateral ankle condition, to include as secondary to service-connected bilateral knee disabilities, is remanded. The Veteran has contended several theories of entitlement for his current bilateral ankle condition. He has indicated that he suffers from pain in his ankles due to activities he performed as a paratrooper in service, and/or that his bilateral ankle condition was caused or aggravated by his service-connected bilateral knee disabilities. His DD-214 confirms he served as an Infantryman and received a "Parachute Badge." Thus, it is presumed the Veteran participated in paratrooper activities. His service treatment records, however, do not show any specific ankle injury. After service, VA outpatient treatment records note a diagnosis of degenerative joint disease (DJD) of the ankles in 2017 (decades after service), which he relates to paratrooper activities or compensation for his knee pain. VA examinations were afforded to the Veteran in February 2012 and August 2020, where both examiner found the Veteran's bilateral ankle conditions unlikely do to service because although he participated in paratrooper activities, he never incurred an ankle-specific injury at the time. In support of his claim, the Veteran submitted a private opinion dated July 2014 indicating his bilateral ankle conditions are "traumatic" in nature and appear to be related to "multiple injuries" sustained in service. The Board finds the medical evidence is insufficient to render a decision at this time. The private examiner, although providing a positive nexus opinion, seems to base the decision on in-service "multiple injuries," which is at odds with the Veteran's silent service treatment records for such injuries. The VA examiners' opinions, moreover, did not address the Veteran's secondary service-connection theory of entitlement, which was indicated in his lay statements and VA outpatient treatment records. See 38 C.F.R. § 3.310. Accordingly, the Board finds a new VA examination is warranted. The matter is therefore REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the nature and etiology of his claimed bilateral ankle condition. The claims file should be made available to the clinician for review of the case. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a) Is it at least as likely as not that the Veteran's bilateral ankle arthritis / degenerative joint disease (1) began during active service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (b) Is the Veteran's bilateral ankle disability/disabilities at least as likely as not related to service, including his paratrooper duties and described in-service injuries? Provide a rationale to support the opinion(s). (c) Is the Veteran's bilateral ankle disability/disabilities at least as likely as not proximately due to or aggravated by (i.e., worsened beyond its natural progression) his service-connected bilateral knee disabilities? The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. If medical literature is relied upon in rendering this determination, the clinician should identify and specifically cite each reference material used. All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. If the clinician determines that s/he cannot provide an opinion without resorting to speculation, the clinician should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. (Continued on the next page) 2. Ensure that the requested opinion is associated with the claims file. After completing the above, and any additionally indicated development, re-adjudicate the claim. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Wilkinson, Edward L. 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.