Citation Nr: 22016374 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-02 771 DATE: March 22, 2022 REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right leg disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1979 to June 1982, with additional reserve service in the Army National Guard and the Louisiana National Guard. These matters are before the Board of Veterans' Appeals (the Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, the RO issued a May 2020 rating decision, granting the Veteran service connection for tinnitus and bilateral hearing loss. As these issues have been resolved by a full grant of benefits, they are no longer on appeal before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2021. A transcript of the hearing is of record. The Board recognizes that the Veteran has not appointed a representative and is proceeding pro se in this appeal. 1. Entitlement to service connection for a left ankle disability is remanded. 2. Entitlement to service connection for a back disability is remanded. The Veteran seeks service connection for left ankle and back disabilities which he asserts were incurred during active service. Specifically, the Veteran testified at his Board hearing that he injured his left ankle and back on separate occasions in 1980 while stationed in Germany. The Veteran testified that he was treated at an American dispensary in Germany for his left ankle. Regarding his back disability, the Veteran recalled receiving treatment for his back and being put on light duty. See October 2021 Board Hearing Transcript Initially, the Board notes that the Veteran's service treatment records (STRs) appear incomplete. Despite early to mid-1980 examiner references in the Veteran's STRs to prior in-service ankle and knee injuries, available treatment records do not document any such injuries. Specifically, the Veteran's April 1982 separation exam notes trouble with "ankles and knees" and that the Veteran broke both ankles. A July 1984 Report of Medical History notes that the Veteran broke both ankles in 1980 and 1982, and specifically states "broke ankles while in military service." During the 1984 exam, the Veteran reported his ankles only give him trouble when he runs a lot, and when the weather changes. Thus, as outstanding service records appear to be missing from the file, additional development is required. In October 2015, the RO obtained a VA examination and opinion to access the nature and etiology of the Veteran's left ankle and back disabilities. The examiner opined that the Veteran's ankle and back disabilities are less likely than not incurred in or caused by the Veteran's active service. The examiner based his opinion on the Veteran's service in the National Guard without limits for 10 years following active service and based on "little rx" post discharge until many years after service, with x-rays showing better than typical age-related change. It is unclear which x-rays for which condition, the examiner was referring to. The Board finds this opinion to be inadequate. Once VA undertakes the effort to obtain an examination and medical opinion when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, on remand a VA examination and opinion should be obtained to determine the nature and etiology of the Veteran's claimed disabilities. 3. Entitlement to service connection for a right leg disability is remanded. The Veteran seeks service connection for a right leg disability which he relates to an injury during active service. Specifically, the Veteran testified that he broke his right leg in two or three different places playing a required game of rugby with his unit, when an opponent tackled him. The Veteran was in a cast for 9 months or more and testified that he was treated on post sometime between 1981 to 1982. His leg never completely healed and now it has gotten worse. The Veteran has shooting pain running down his right leg constantly. The Veteran testified that he gets injections in his right knee for pain. See October 2021 Board Hearing Transcript The Veteran's April 1982 separation exam notes the Veteran's trouble with his "knees," his VA treatment records document a current diagnosis of bilateral osteoarthritis of the knees, and he testified that he injured his right leg at a sporting event for his unit that he was treated on post for some time between 1981 and 1982, with symptoms becoming progressively worse since that time. However, to date the Veteran has not been afforded a VA examination and medical opinion to assess the nature and etiology of his right leg disability. As such, a VA examination and opinion is necessary before the Board can make an informed decision on the claim. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Accordingly, the matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. 2. Undertake appropriate efforts to request and associate with the claims file any outstanding service treatment records from the period June 29, 1979, to June 28, 1982, to include records pertaining to treatment in 1980 and 1982 when the Veteran broke both ankles while in active military service, injured his left ankle and back on separate occasions in 1980 while stationed in Germany, and broke his right leg and was in a cast between 1981 to 1982. If the RO cannot locate the aforementioned records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain these government records would be futile. The RO should then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 3. Then, schedule the Veteran for a VA examination by a medical professional of appropriate expertise to determine the nature and etiology of the Veteran's left ankle, back, and right leg disabilities. The entire claims file, to include a copy of this REMAND, must be provided to the examiner/s and reviewed in full. Thereafter, the examiner should provide a fully-articulated opinion addressing the following: (a) Whether the Veteran's left ankle disability was incurred in service or is otherwise causally related to the Veteran's active service or any incident therein, to include the Veteran's report of a 1980 injury during a training exercise that resulted in a broken left ankle? The examiner must specifically consider and address the following evidence: The Veteran's July 1984 separation examination noting that the Veteran broke both ankles in 1980 and 1982, and that he has no trouble except when running a lot or during weather changes. The Veteran's testimony that even after removal of his left ankle cast he continued to have problems with swelling and soreness and that he still has trouble standing on for long periods of time to this day. (b) Whether the Veteran's back disability was incurred in service or is otherwise causally related to the Veteran's active service or any incident therein, to include the Veteran's report of a 1980 fall while carrying a 50-pound pack, mortar baseplate, and an M-16, during a training exercise? The examiner must specifically consider and address the following evidence: The Veteran's April 1982 separation examination noting that the Veteran has muscle spasms from time to time. June 1990 sick slip for back and chest pain with light duty for 3 days. See June 30, 1990 STR VA treatment note that the Veteran's back pain started in the military, but it has been exacerbated since 2004 motor vehicle accident. See October 16, 2014 VA Treatment Note (c) Whether the Veteran's right leg disability was incurred in service or is otherwise causally related to the Veteran's active service or any incident therein, to include the Veteran's report of a broken right leg during a required rugby game with his unit in the 1981 to 1982 timeframe? The examiner must specifically consider and address the following evidence: The Veteran's April 1982 separation exam which notes that the Veteran has trouble with his knees. VA diagnosis of bilateral primary osteoarthritis of the knees. See January 15, 2019 VA Treatment Observation Note Veteran's hearing testimony that his leg never completely healed and has gotten worse. (Continued on the next page) The examiner is advised that the lack of documented treatment for the claimed disability during service cannot serve as the sole basis for a negative finding. The examiner is advised that the Veteran is competent to report his medical history and must be considered and weighed in making the determination as to whether a nexus exists between the claimed diseases and military service. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.