Citation Nr: 21041819 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 19-23 827 DATE: July 10, 2021 REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from August 1974 to August 1977. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual Board hearing in March 2021; a transcript is of record. 1. Entitlement to service connection for a right ankle disability is remanded. The Veteran asserts service connection for a right ankle disability. He has a current diagnosis of chronic right ankle sprain as reported at the May 2018 examination. As such, the first element of service connection has been met. His service treatment records show a right ankle injury. See 10/01/2014, STR Medical at 13, 21, and 25. Additionally, the Veteran testified at the March 2021 that he has had pain in his ankle since his in-service injury. The Board finds the Veteran competent to describe his experiences and his continuous pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The May 2018 examiner provided a negative nexus opinion. The examiner stated there was no evidence of a chronic ankle condition during service or continuity of symptoms since service and today. The Veteran's representative asserted at the Board hearing that the examiner did not sufficiently account for the Veteran's credible lay testimony regarding his continual pain and stiffness since service. The Board finds as the Veteran has credibly testified that he has had pain since service that an addendum opinion is warranted to discuss the Veteran's contentions. As such, the Board finds that an addendum opinion or examination that adequately addresses his assertions is required. 2. Entitlement to service connection for a right knee disability is remanded. The Veteran asserts service connection for a right knee disability. His medical records show knee pain. His service treatment records show a right ankle injury, as noted above. See 10/01/2014, STR - Medical. The Veteran testified at the March 2021 Board hearing that he also injured his right knee when he injured his ankle. The Board acknowledges his service treatment records document a right ankle injury, but not a right knee injury. He has right knee pain and swelling. His knee pain and swelling has occurred since he exited active service. He also asserts that his right ankle disability has altered his gait and increased strain on his right knee. The Board finds the Veteran competent to describe his experiences as well as when his pain and swelling began. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Concerning the reports of the Veteran's right knee pain, the Court of Appeals for the Federal Circuit found that pain alone can constitute a "disability" under § 1110, because pain can cause functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). In light of Saunders, the Board finds that the Veteran reports right knee pain which may indicate chronic pain and/or a persistent disability. Additionally, the Board finds that service connection for a right knee disability is intertwined with the above remanded service connection claim for a right ankle disability. The Veteran has asserted that his right knee disability may be due to his right ankle disability. Therefore, the Board finds adjudication of service connection for a right knee disability would be premature because it is inextricably intertwined with the above remanded claim See Harris v. Derwinksi, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As such, this issue is deferred pending the receipt of additional evidence, as directed below. As such, the Board finds that an examination is warranted to address the Veteran's contentions and to provide a nexus opinion. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing #1, schedule the Veteran for an examination. The claims file is to be made available to the examiner and reviewed in conjunction with the examination. Identify all right ankle disabilities during the period on appeal (April 2018 to the present) to include a chronic right ankle sprain. Then, address whether: (a.) It is at least as likely as not (probability of approximately 50 percent) that the Veteran's current right ankle disability is related to an in-service injury, event, or disease, to include his in-service right ankle injury. See 10/01/2014, STR - Medical at 13, 21, and 25. **The Board finds the Veteran competent and credible to report his right ankle pain began during service and has continued since that time. The Veteran's competent statements are to be considered in rendering an opinion. Additionally, the examiner may not solely rely on the absence of continuous medical care to provide a negative nexus opinion as the Board has found him to be competent and credible.** 3. After completing #1, schedule the Veteran for an examination. The examiner is to provide a diagnosis which accounts for the Veteran's symptoms for his right knee disability during the period on appeal (April 2018 onward). If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as loss of range of motion, pain, or instability. Complete the "Functional Impact" section of the report. --Then, address whether: (a.) Is it at least as likely as not (probability of approximately 50 percent) that the Veteran's disability was caused by a disease or injury in service, to include the injury where he injured his right ankle? See 10/01/2014, STR - Medical. (b.) If no, is it at least as likely as not (probability of approximately 50 percent) that his disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? **Please address the Veteran's contention that that his right ankle injury has altered his gait leading to his right knee disability. Additionally, the Board finds the Veteran competent and credible to report his right knee pain and swelling began during service and has continued since that time. The Veteran's competent statements are to be considered in rendering an opinion. Additionally, the examiner may not solely rely on the absence of continuous medical care to provide a negative nexus opinion as the Board has found him to be competent and credible.** 4. Then, if the Veteran is now service connected for any of the remanded disabilities per the Veterans Benefits Administration (VBA), and any remanded disability is not found to be caused by a disease or injury in service, please address whether the disability: (a.) Is it at least as likely as not (probability of approximately 50 percent) that any disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? The term "aggravated" refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. 5. Inform EACH examiner that a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.