Citation Nr: 21041568 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 08-34 087A DATE: July 9, 2021 REMANDED Service connection for left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1986 to January 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2006 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied, inter alia, entitlement to osteoarthritis, right knee and bilateral ankles. The Veteran's notice of disagreement was received in January 2007. The RO issued a statement of the case in March 2008. The Veteran's VA Form 9, substantive appeal to the Board, was received in November 2008. In February 2015, the Veteran testified at a Board (video conference) hearing before a Veterans Law Judge. A transcript of the testimony is associated with the claims file. Subsequently, the Veteran was notified that the Veterans Law Judge that held that hearing was no longer with the Board and was apprised of his right to another hearing before a current Veterans Law Judge. The Veteran has never responded to that June 2017 letter, requesting another hearing. The Board has remanded this case for additional development in June 2015, October 2017, April 2019, and again in December 2020. Unfortunately, the Board finds that another remand is required at this time. The Veteran asserts that his left ankle disability is proximately due to or aggravated by his service-connected knee disabilities. A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). When no pre-existing condition is noted upon examination for entry into service, a Veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. Mere history provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition. 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Therefore, to rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a Veteran's disability existed prior to service, and (2) that the pre-existing disability was not aggravated during service. Id. The second prong may be rebutted with clear and unmistakable evidence establishing that either (1) the disability underwent no increase in severity during service, or (2) any increase in severity was due to the natural progression of the condition. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. See Vanerson v. West, 12 Vet. App. 254 (1999). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. During a January 2000 private knee consultation, the Veteran reported ankle pain due to altered gait caused by a left knee injury and described a childhood left ankle fracture that left him in a cast for over a year. The July 2020 VA examiner found the February 1987 service treatment record x-ray showing degenerative changes ('arthritis') of the left ankle to be consistent with the childhood injury. In December 2020 the Board remanded the case for an addendum medical opinion to address whether the Veteran's left ankle disability preexisted service. The February 2021 VA examiner found the Veteran's left ankle disability clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness and provided the following rationale: Temporary aggravation is plausible, but there is no evidence of permanent aggravation of the pre-existing left ankle condition. A through review of the medical record fails to support that the pre-existing condition was permanently aggravated by service. The Veteran sustained an acute sprain of the left ankle in February 1987. There is no record of chronic treatment of the left ankle during service. There is no documentation of a profile status or any record of the Veteran incapable of performing the duties of his MOS or PT during service due to the left ankle condition. The Separation exam noted a history of broken bones without any left ankle disability. There is no anatomic or pathophysiological basis for rhe development of osteoarthritis of the left ankle due to service including the acute sprain in 1987. It is more likely than not that the Veteran's osteoarthritis of the left ankle is proximately due to prior trauma with fracture of the left ankle and the effect of aging and obesity. A nexus has not been established. The examiner does not address whether the Veteran's in-service degenerative arthritis of the left ankle was aggravated by his service-connected knee disability. Service treatment records show multiple knee injuries and multiple knee procedures during service, which during his February 2015 Board hearing the Veteran states altered his gait and resulted in ankle pain. VA has a duty to ensure that medical examinations are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Examinations that do not consider all the relevant evidence of record, including lay statements, are inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the reasons outlined above, the Board finds the examiner's opinion inadequate. Consequently, a remand for an addendum opinion is necessary to correct such inadequacies and ensure the completeness of the medical evidence prior to the Board's adjudication of the Veteran's claim. The matter is REMANDED for the following action: Forward a copy of this remand to the February 2021 VA examiner, for an addendum opinion addressing aggravation of the Veteran's left ankle disability, currently diagnosed as osteoarthritis. Following a review of the record, to include a copy of this Remand, the examiner is asked to opine as to the following inquiries: (A) Whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during such period of service. The examiner should focus on whether there was a permanent increase in symptomatology during military service of the left ankle disability that pre-existed service. With regards to the clear and unmistakable standard, the examiner should point to the specific evidence in the service records which underpin the specific finding that the Veteran's left ankle clearly and unmistakably was not aggravated (i.e., did not sustain a permanent increase in symptomatology) during military service. (B) If the examiner finds that there was clear and unmistakable evidence that the Veteran's left ankle disorder was not aggravated by military service, then the examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current left ankle disability was aggravated by his service-connected disabilities, to include his bilateral knee and lumbar spine disabilities, during the pendency of the appeal (i.e., any aggravation since February 24, 2005). Aggravation is defined as any increase in severity beyond the natural progression of the condition; such does not need to be permanent in nature. For any aggravation found, the clinician should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering such opinions, the clinician should consider and discuss the lay statements of record from the Veteran, specifically the February 2015 Board hearing. A rationale for any opinion offered should be provided. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.