Citation Nr: 18160504
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 14-38 644A
DATE:	December 28, 2018
ORDER
As new and material evidence has been received to reopen a claim of entitlement to service connection for a cervical spine condition, to this extent, the appeal is granted.
The reopened claim of entitlement to service connection for a cervical spine condition, diagnosed as cervical spondylosis, arthritis, and cervical degenerative disc disease, is granted.
The claim of entitlement to service connection for right upper extremity cervical radiculopathy is granted.
The claim of entitlement to service connection for left upper extremity cervical radiculopathy is granted.
The reduction of the rating for the Veteran’s left knee degenerative arthritis from 30 percent to 10 percent was not proper, and the 30 percent rating is restored effective December 6, 2012.
REMANDED
The claim of entitlement to service connection for a left ankle condition is remanded.  
The claim of entitlement to a rating greater than 30 percent for left knee degenerative arthritis is remanded.
FINDINGS OF FACT
1. In a September 2013 rating decision, the Regional Office (RO) denied service connection for a cervical spine condition; although notified of the denial in a September 2013 letter, the Veteran did not initiate an appeal, and no pertinent exception to finality applies.
2. New evidence associated with the claims file since the September 2013 denial relates to an unestablished fact necessary to substantiate the claim for service connection for a cervical spine condition and raises a reasonable possibility of substantiating the claim.
3. The Veteran has current cervical spine disability, diagnosed as cervical spondylosis, arthritis, and cervical degenerative disc disease and competent, probative medical evidence on the question of whether the Veteran’s cervical spine disability is related to service is, at least, in relative equipoise.
4. The Veteran currently has cervical radiculopathy of the right and left upper extremities, and competent medical evidence indicates that such is due to the Veteran’s cervical spine conditions.
5. The September 2013 rating decision which reduced the rating for the Veteran’s service-connected left knee degenerative arthritis from 30 percent to 10 percent, effective December 6, 2012, did not comply with required regulatory provisions.
CONCLUSIONS OF LAW
1. The RO’s September 2013 rating decision denying service connection for a cervical spine condition is final.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302(a), 20.1103.
2. As additional evidence received since the September 2013 denial is new and material, the criteria for reopening the claim for service connection for a cervical spine condition are met.  38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.156.
3. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for cervical spine disability, diagnosed as cervical spondylosis, arthritis, and cervical degenerative disc disease, are met.  38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303.
4. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for right upper extremity cervical radiculopathy, as secondary to a service-connected cervical spine condition, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.
5. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for left upper extremity cervical radiculopathy, as secondary to a service-connected cervical spine condition, are met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.
6. The reduction of the disability rating for the Veteran’s service-connected left knee degenerative arthritis from 30 percent to 10 percent was not proper, and the 30 percent disability rating is restored from December 6, 2012.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1985 to June 1989.
This appeal to the Board of Veterans’ Appeals (Board) arose from September 2013, October 2014, and April 2015 rating decisions.
In the September 2013 rating decision, the Department of Veterans Affairs (VA) RO, inter alia, reduced the Veteran’s rating for left knee degenerative arthritis from 30 percent to 10 percent disabling effective December 6, 2012.  After the In April 2014, the Veteran filed a notice of disagreement (NOD).  In a September 2014 rating decision, the RO, inter alia, found CUE in the September 9, 2013 rating decision; and therefore, restored the 30 percent rating effective October 11, 2011.  At the same time, the September 2014 RO proposed that the Veteran’s degenerative arthritis of the left knee status post arthroscopic surgery be reduced to 10 percent.  However, the Veteran’s rating continued at 10 percent from December 6, 2012.  A statement of the case (SOC) was issued in September 2014 and a supplemental statement of the case (SSOC) was issued in November 2014.  The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in November 2014.
In the October 2014 rating decision, the RO denied the Veteran’s claim for service connection for a left ankle disability.  In November 2014, the Veteran filed an NOD.  An SOC was issued in June 2015, and the Veteran filed a substantive appeal (via a VA Form 9) in July 2015.
In the April 2015 rating decision, the RO denied the Veteran’s petition to reopen his claim for service connection for cervical spine strain with degenerative disc disease, and denied entitlement to service connection for radiculopathy of the right and left upper extremities related to cervical spine strain with degenerative disc disease.  In May 2015, the Veteran filed an NOD.  An SOC was issued in May 2015, and the Veteran filed a substantive appeal (via a VA Form 9) in July 2015.
In March 2018, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record.
Request to Reopen
The Veteran’s initial claim for service connection for a cervical spine condition was denied in a March 2011 rating decision.  As new evidence was received, the RO reopened the Veteran’s claim for service connection for a cervical spine condition in September 2013 and denied the claim on the merits.  The pertinent evidence then of record consisted of service treatment records, a February 2011 VA examination, a March 2013 cervical MRI showing minimal disc bulging C5-C6 and C6-C7 and only minimal central canal narrowing, private treatment records from Dr. J.E. through October 2011, Dr. B.P. through January 2011, and Dr. J.M. through May 2013.  The RO found that there was no evidence that the condition occurred in service, was caused by service, or manifested to a compensable degree within one year of service. 
Although notified of the September 2013 denial in a letter dated that same month, the Veteran did not initiate an appeal.  See 38 C.F.R. § 20.200.  Moreover, no new and material evidence was received within the one-year appeal period from the date of the notice of the denial, and no additional service records (warranting reconsideration of the claim) have been received.  See 38 C.F.R. § 3.156 (b), (c). Therefore, the RO’s September 2013 denial of the claim is final as to the evidence then of record and is not subject to revision on the same factual basis.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.
However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  The Veteran filed his request to reopen his previously denied claim for service connection for cervical spine strain in February 2015.  Regarding requests to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).
In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new.  As indicated by the regulation cited above, and by judicial case law, “new” evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or “merely cumulative” of other evidence then of record.  This analysis is undertaken by comparing the newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material.
The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.
The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996).  Here, the last final denial of the claim is the September 2013 rating decision.  Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).
Pertinent evidence added to the claims file since the September 2013 rating decision includes February 2015 private independent medical examination from J.E., which provides a positive nexus opinion relating the Veteran’s cervical spine conditions to his service, and the Veteran’s testimony at the January 2018 Board hearing.  The Board finds that the above-described evidence, when considered in light of the evidence previously of record, provides a basis for reopening the previously-denied claim.  This evidence is “new” in that it was not before the RO at the time of the September 2013 denial and is not duplicative or cumulative of the evidence previously of record.  Moreover, this evidence is “material” in that it relates to unestablished facts necessary to substantiate the claim for service connection at issue namely, whether the Veteran’s current cervical spine condition is related to his service.  Under these circumstances, the Board concludes that the criteria for reopening the claim for entitlement to service connection for a cervical spine condition is met. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156.
Service Connection
Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d). 
Generally, to establish service connection, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

The determination as to whether the elements of a claim are met is based on an analysis of all the evidence of record and the evaluation of its competency, credibility and probative value.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Baldwin v. West, 13 Vet. App. 1, 8 (1999).
In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  
1. Cervical spine disability
The Veteran testified that, during his service, he was in technical school at the Keister Air Force Base in Mississippi and the sergeant made him stand at attention for an hour and a half in the heat during the summer, which caused him to pass out and hit his head on the corner of a desk, which was a whiplash type of event that injured his neck.  See January 2018 Board hearing transcript, p.14; see also Veteran’s contentions at his February 2011 VA examination; August 2012 statement in support of claim.
Service treatment records confirm a fainting episode in April 1986, during which the Veteran overheated, lost consciousness, and hit the right side of his head, requiring stitches.  Service treatment records also show the Veteran was diagnosed with a muscle strain in his posterior neck after lifting weights in July 1986.
The Veteran has current diagnoses of cervical segmental dysfunction, cervicalgia, disc bulging, degenerative disc disease, cervical spondylosis, and arthritis.  See January 2011 private treatment record from chiropractic physician, B.P.; March 2013 MRI; April 2013 private record from Dr. J.M.; February 2015 private treatment record from J.E. 
On the question of medical etiology of the current cervical spine disability, the Board notes that there are conflicting medical opinions with respect to whether his current disability is related to his service.  The Board, therefore, must assess the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other.  See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)).  The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim.  See Gabrielson v. Brown, 7 Vet. App. 36, 29-40 (1994).
The February 2011 VA examiner diagnosed cervical strain and provided a negative nexus opinion.  His rationale was that the Veteran had a one-time diagnosis and treatment of muscle strain of the posterior neck in service that resolved within 48 to 72 hours with a normal examination on exit.  The examiner does not acknowledge the Veteran’s head trauma in service, which the Veteran specifically reported during the examination.  
The Veteran submitted a February 2015 private independent medical examination report from Dr. J.E.  He diagnosed cervical spondylosis, arthritis, and degenerative disc disease.  After a review of the Veteran’s medical records, Dr. J.E. determined that the Veteran’s fall during service was severe enough to strain the muscles on the right side of his neck.  He determined that this caused continued abnormal biomechanical stress on his cervical spine, which caused derangement of his discs in his cervical spine.  Further, in a January 2011 letter, private chiropractic physician, B.P., diagnosed cervical segmental dysfunction and cervicalgia and related the Veteran’s conditions to service.  He provided rationale that old injuries pre-expose one to arthritis and secondary spinal problems, which the Veteran experienced.
As the February 2011 VA examiner did not consider whether the Veteran’s head injury in service caused his cervical spine condition, the opinion was not based on a complete review of the evidence, including the service treatment records and the Veteran’s contentions.  
When, after careful consideration of all procurable and assembled data, reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 3.102.  See also 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  
Considering the claim in light of the above noted evidence, and with resolution of all reasonable doubt on the medical nexus question in the Veteran’s favor, the Board concludes that the criteria for service connection current cervical spine disability, diagnosed as cervical spondylosis, arthritis, and degenerative disc disease, are met.
2. Radiculopathy of the right and left upper extremities
The Veteran testified that he had a tingling feeling in his hands and constantly dropped things.  The Veteran’s representative contended that the Veteran’s right and left upper extremity conditions are secondary to his cervical spine disability.  See January 2018 Board hearing transcript, pp.16-18.  
Pursuant to this Board decision, service-connection is in effect for the Veteran’s cervical spine condition, diagnosed as cervical spondylosis, arthritis, and cervical degenerative disc disease.  Service connection may be established on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310.
The Board acknowledges that the February 2011 VA examination revealed no neurological deficits.  However, private treatment records show that the Veteran has a current diagnosis of radiculitis and radiculopathy.  See January 2011 letter from private chiropractic physician, B.P.; February 2015 private independent medical examination by Dr. J.E., and January 2017 Worker’s Compensation Report by Dr. D.A.  Dr. J.E. noted that the derangement of the disc in his cervical spine caused increased pressure on the spinal nerves causing radiation of pain and weakness down the arms.  Dr. D.A. also determined the Veteran had radiculopathy in both upper extremities secondary to his cervical spine injury.  He noted that the radiculopathy findings were substantiated by an electrodiagnostic study.
When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 3.102. See also 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53-56.  Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that the criteria for service connection for the radiculopathy of the right and left upper extremities are met.
Reduction
In the September 2013 rating decision, Department of Veterans Affairs (VA) Regional Office (RO), inter alia, reduced the Veteran’s evaluation for degenerative arthritis of the left knee status post arthroscopic surgery from 30 percent to 10 percent disabling effective December 6, 2012.  In April 2014, the Veteran filed a notice of disagreement (NOD).  In a September 2014 rating decision, the RO, inter alia, found CUE in the September 9, 2013 rating decision; and stated that the 30 percent rating would be restored effective October 11, 2011.  At the same time, the September 2014 RO proposed that the Veteran’s degenerative arthritis of the left knee status post arthroscopic surgery be reduced to 10 percent, and did not assign an effective date for this proposed rating.  No additional rating decision is of record regarding the rating for the Veteran’s degenerative arthritis of the left knee status post arthroscopic surgery.  However, the evidence shows that the reduction in the Veteran’s rating for left knee degenerative arthritis from 30 percent to 10 percent was effective December 6, 2012, and has continued at 10 percent since that time.
Because the reduction in the Veteran’s rating from 30 percent to 10 percent resulted in a decreased overall disability rating at the time of the reduction, the procedural safeguards of 38 C.F.R. § 3.105(e) apply.  Pursuant to 38 C.F.R. § 3.105(e), the RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction.  The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing.  Then, a rating action will be taken to effectuate the reduction.  38 C.F.R. § 3.105(e).  The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires.  38 C.F.R. § 3.105(e), (i)(2)(i).
Where a rating reduction does not comply with the provisions of applicable VA regulations, the reduction is void ab initio.  See Greyzck v. West, 12 Vet. App. 288 (1999).  As indicated in the September 2014 rating decision, the RO did not comply with the procedural safeguards of 38 C.F.R. § 3.105(e) at the time of the September 2013 rating decision reduced the Veteran’s evaluation for degenerative arthritis of the left knee status post arthroscopic surgery from 30 percent to 10 percent disabling effective December 6, 2012.  Further, although the RO acknowledged this error in its September 2014 rating decision, the RO did not subsequently correct this error and restore the 30 percent rating.  Instead, the 10 percent rating for degenerative arthritis of the left knee status post arthroscopic surgery has remained at 10 percent since December 6, 2012.  Additionally, after providing notice of a proposed reduction in a September 2014 rating decision, the RO did not issue a subsequent rating decision effectuating this reduction, as required.  As the reduction did not comply with the due process requirements of 38 C.F.R. § 3.105(e), the September 2013 rating decision that reduced the Veteran’s evaluation for degenerative arthritis of the left knee status post arthroscopic surgery from 30 percent to 10 percent is void ab initio, and the 30 percent evaluation must be restored effective December 6, 2012.
REASONS FOR REMAND
The Board’s review of the claims file reveals that further AOJ action on the Veteran’s claims for service connection for a left ankle condition and for a rating greater than 30 percent for left knee degenerative arthritis is warranted.
Specific to the left ankle condition claim, the Veteran testified that while in the Air Force in Utah, he was in a recreation area in a ski resort and fell while riding down a concrete luge.  Reportedly, he jumped up and stepped on jagged rocks and his ankle popped and swelled up.  See January 2018 Board hearing transcript, p. 19.
The Veteran’s testimony is consistent with the service treatment records, which show a left ankle sprain on July 25, 1988 after falling from off an alpine slide in Park City.  A July 28, 1988 service treatment record noted that the ankle sprain was resolving and the Veteran was doing much better and walking without difficulty.
The Veteran has a current diagnosis of ankle sprain.  See May 2014 private treatment record from Mercy Therapy Services; July 2014 private treatment record from Foot Clinic of Oklahoma; August 2014 Disability Benefits Questionnaire (DBQ).  The August 2014 DBQ provided a negative nexus opinion on the basis that the Veteran’s left ankle condition resolved quickly in service and there were no continuity of care records showing that the problem had become a chronic condition that would have progressed into a current left ankle diagnosis.
However, since the August 2014 DBQ, additional evidence has been added to the record which should be considered in the formulation of a medical etiology opinion.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (it is incumbent on the examiner to consider all relevant evidence before forming an opinion). Significantly, in January 2018, the Veteran submitted a February 2015 private medical opinion, in which Dr. J.E. diagnosed left ankle severe anterior talofibular ligament instability and traumatic arthritis and opined that it is as likely as not that the left ankle injury occurred while the Veteran was in the recreational area riding a luge causing a severe strain and that the laxity of the anterior talofibular ligament caused him to have increased instability of his left ankle causing him to fall frequently and twist his ankle on average at least twelve times per year.  Additionally, the Veteran testified that he has continued to have problems with his ankle ever since service.  See January 2018 Board hearing transcript, p.19.
Thus, the Board finds that further medical findings and opinion—based on full consideration of the Veteran’s documented medical history and assertions, and supported by complete, clearly-stated, rationale are needed to resolve this claim.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006).  See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to obtain an examination or opinion when developing a service connection claim, even if not statutorily obligated to do so, it must provide or obtain one that is adequate for purposes of the determination being made).  Accordingly, the AOJ should arrange for the Veteran to undergo VA ankle examination by an appropriate physician.  
As for the matter of a rating in excess of 30 percent for left knee degenerative arthritis, the Board finds that a such a claim is on appeal before the Board, as the Veteran submitted a May 2013 claim and testified that a rating in excess of 30 percent is warranted for his left knee degenerative arthritis.  See January 2018 Board hearing transcript, p. 2.
The Veteran was provided a VA knee examination in September 2014.  Since then, the United States Court of Appeals for Veteran’s Claims (Court) has issued the decision in Correia v. McDonald, 28 Vet. App. 158 (2016).  In Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, and in weight bearing and non-weight bearing, and, if possible, with range of motion measurements of the opposite undamaged joint.  Such testing was not accomplished during the September 2014 VA examination and is needed to properly evaluate the Veteran’s condition.
Further, the Veteran testified that the September 2014 VA examination was inadequate as the examiner did not provide a physical examination and did not touch his knee or take any measurements.  He testified that, to the contrary, he he and the examiner only talked about his condition.  See January 2018 Board hearing transcript, p. 7.  He also contends that he has additional symptoms which were not noted on the examination report, including instability, laxity, buckling, and difficulty walking on stairs, kneeling, and sitting for a long period of time.  Id., pp. 5, 7.  The Veteran also submitted a February 2015 private independent medical examination from Dr. J.E. showing decreased range of motion from 30 to 90 degrees.
Given the Veteran’s assertions and the additional evidence received, the claim for higher rating for left knee disability should be remanded for the Veteran to undergo VA knee examination by an appropriate medical professional.
The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may result in denial of his claim(s).  See 38 C.F.R. § 3.655.  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.  
Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all outstanding, pertinent records, to include VA medical records.  
The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claims on appeal, explaining that he has a full one-year period to respond.  See 38 U.S.C. § 5103 (b)(1); but see 38 U.S.C. § 5103 (b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period).  In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records. 
Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159.
The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.  However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claims on appeal.  Adjudication of the claims should include consideration of whether staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate 
These matters are hereby REMANDED for the following action:
1. Obtain any outstanding VA treatment records of evaluation and/or treatment of the Veteran that are not of record.  Follow the procedures of 38 C.F.R. § 3.159 regarding requesting records from Federal facilities.  All records and/or responses received should be associated with the claims file.
2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the remaining claim on appeal that is not currently of record.  Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records.  
Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period).
3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.
4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination of his left ankle by an appropriate physician.
The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran’s documented medical history and lay assertions.
All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.
The examiner should first clearly identify all left ankle disabilities currently present or present at any point pertinent to the current claim on appeal (even if now asymptomatic or resolved), to include sprain, strain anterior talofibular ligament instability, and traumatic arthritis.
Then, for each such diagnosed disability, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the disability had its onset in or is otherwise medically-related to service, specifically the Veteran’s July 25, 1988 fall from an alpine slide in Park City and diagnosis of left ankle sprain in service.
In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence of record, to include the service treatment records showing left ankle sprain; Dr. J.E.’s February 2015 private medical opinion diagnosing left ankle severe anterior talofibular ligament instability and traumatic arthritis and opining that it is as likely as not that the left ankle injury occurred while the Veteran was in the recreational area riding a luge causing a severe strain and that the laxity of the anterior talofibular ligament caused him to have increased instability of his left ankle causing him to fall frequently and twist his ankle on average at least twelve times per year.
The examiner must also consider and discuss all lay assertions, to include lay assertions as to the nature, onset and continuity of ankle symptoms, including the Veteran’s January 2018 testimony that he has continued to have problems with his ankle ever since service.
Notably, the absence of documented evidence of symptoms and/or diagnosis of a specific disability in or shortly after service should not, alone, serve as the sole basis for a negative opinion.  
In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating the requested opinion.  If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why.
All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.
5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination of his left knee by an appropriate medical professional.
The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran’s documented medical history and lay assertions.
All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.  
The examiner should conduct range of motion testing of the left knee in both active and passive motion, and in weight bearing and non-weight bearing.  The same range of motion testing should be accomplished for the right knee, for comparison purposes.  n measurements of the opposite undamaged joint.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly so state, and explain why.
The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present.  
The examiner should also state whether the examination is taking place during a period of flare-up.  If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time.
Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an estimate of additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time.  If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, he or she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).
All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.
6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).
7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include, for the higher rating claim, consideration of whether staged rating of the disability is warranted).

 
JACQUELINE E. MONROE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Samuelson, Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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