Citation Nr: 22017733 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 15-24 062 DATE: March 26, 2022 REMANDED Entitlement to service connection for a left ankle disability, including as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active service from June 1966 to June 1969. In January 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been reviewed. The Board previously remanded the claim for service connection for a left ankle condition in June 2019, September 2020, and February 2021. See June 2019 Board Decision (dismissing the claims for service connection for disabilities of the right and left legs; reopening but denying the claim for service connection for a lumbar spine disability; denying the claims for service connection for a cervical spine disability, a left hip disability, a right hip disability, a left knee disability, and a right knee disability; and remanding the claims for service connection for a left ankle disability and a right ankle disability); September 2020 Board Decision (remanding the claims for service connection for a left ankle disability and a right ankle disability); February 2021 Board Decision (granting service connection for a right ankle disability and remanding the claim for service connection for a left ankle disability). The case has again returned to the Board. Although the Board sincerely regrets the additional delay caused by yet another remand, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 1. Entitlement to service connection for a left ankle disability, including as secondary to service-connected disabilities, is remanded. The Board finds the January 2022 VA medical opinion concerning the potential relationship between the Veteran's left ankle pain and the service-connected right toe and ankle disabilities, obtained pursuant to the Board's February 2021 remand, to be inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In this regard, the January 2022 VA examiner opined that the Veteran's left ankle pain was "less likely than not proximately due to his right ankle pain and more likely than not due to obesity, old age and bilateral knee arthritis." See January 2022 VA Medical Opinion Disability Benefits Questionnaires (DBQs). Although the VA examiner checked the box on the DBQ indicating that the condition was less likely than not aggravated beyond its natural progression by his service-connected conditions, his rationale for this determination focused solely upon the purported causal relationship between his left ankle pain and his service-connected disability, failing to acknowledge or address whether his left ankle condition was aggravated by his service-connected right toe or ankle conditions or any resultant disturbance of gait. Id. See also El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (finding that a VA opinion addressing secondary service connection was inadequate as it did not address the issue of aggravation). Significantly, the February 2021 Board remand explicitly requested an opinion as to whether the Veteran's left ankle disability was "aggravated (worsened) by" his service-connected conditions, and further requested that in so opining, the VA examiner should consider the medical evidence of record noting the Veteran's impaired gait. See February 2021 Board Decision. Because the January 2022 VA examination did not include such an opinion, there has not been substantial compliance with the Board's previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, another remand is required. The matters are REMANDED for the following action: 1. Obtain and associate with the file any outstanding VA treatment records. 2. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule the Veteran for an appropriate examination with an examiner other than the VA examiner who performed the January 2022 VA examination, if possible, to assist in determining the nature and etiology of the Veteran's left ankle disorder. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file, including a copy of this REMAND, has been reviewed. The examiner should elicit a full history from the Veteran. The examination should include any necessary diagnostic testing or evaluation (i.e., X-ray and/or MRI studies). After eliciting a full history from the Veteran, conducting a complete review of the claims file (including all available medical treatment records), performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ankle disorder was either (a) caused by, or (b) aggravated by the Veteran's service-connected right toe and ankle conditions, to include as the result of any gait alterations resulting from those disabilities. In providing the requested opinion, the examiner should consider and address the July 2011 VA examination, which noted that the Veteran had an antalgic gait. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding his symptomatology and medical history, including statements regarding the onset, severity, and duration of his symptoms, must be specifically acknowledged and considered in formulating any opinions concerning his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 3. Following completion of the above directive, review the claims file to ensure compliance with this remand. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.