HYPERTENSION

J. GALLAGHER · 2022 · Case ID: A22022084

MIXED

Summary

The veteran, who served from June 1962 to January 1986, appeals the denial of service connection for a heart disability as a residual of rheumatic fever and the adequacy of ratings for hearing loss, right ankle disability, right ankle scars, and a secondary thoracolumbar spine disability. The Board denied service connection for the heart condition, finding no current disability based on the January 2020 VA examination and post-service treatment records, which indicated the condition had resolved. The Board remanded the hearing loss claim due to a duty to assist error, as VA examinations did not clarify if testing was conducted without hearing aids. The right ankle disability claim was remanded due to contradictory VA examination findings regarding ankylosis. The right ankle scars claim was remanded because the June 2018 VA examination inadequately addressed the veteran's reports of pain dependent on weather changes. The thoracolumbar spine claim was remanded due to inadequate VA opinions that failed to consider the biomechanical effects of the veteran's abnormal gait from his service-connected right ankle and the onset of his back pain.

Rationale

No current heart disability found; Condition resolved; January 2020 VA exam persuasive

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200219-71111

Full Decision Text

Citation Nr: A22022084
Decision Date: 11/02/22 Archive Date: 11/02/22

DOCKET NO. 200219-71111
DATE: November 2, 2022

ORDER

Service connection for a heart disability as a residual of rheumatic fever is denied.

REMANDED

Entitlement to an initial compensable rating for service-connected hearing loss prior to August 13, 2021.

Entitlement to a rating in excess of 20 percent for a right ankle disability.

Entitlement to a compensable rating for service-connected right ankle scars.

Entitlement to service connection for a thoracolumbar spine disability as secondary to a right ankle disability.

FINDING OF FACT

The Veteran has not had a current heart disability, to include one as a residual of rheumatic fever, at any time during or approximate to the pendency of the claim.

CONCLUSION OF LAW

The criteria for service connection for a heart disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021).

REASONS AND BASIS FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1962 to January 1986.

The case is on appeal from a January 2020 rating decision.

This appeal is before the Board of Veterans' Appeals (Board) from February 2016, August 2017, and July 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appealed his claims by filing timely notice of disagreements.

In June 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in January 2020, which is the decision on appeal. The decision states that error had been discovered and additional development was conducted prior to the issuing of the decision.

In his February 2020 notice of disagreement, the Veteran elected the Hearing docket. In February 2022, he withdrew the hearing request. Therefore, the Board may only consider the evidence of record at the time of the January 2020 HLR decision and considered therein, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal. 38 C.F.R. § 20.302(b).

Entitlement to service connection for a heart disability as a residual of rheumatic fever

Legal Criteria

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

The requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he or she files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).

VA is responsible for determining whether the evidence supports the claims or is in approximate balance, with the veteran prevailing in either event, or whether the evidence is persuasively against the claims, in which case the claims are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-82 (2021).

Analysis

The Veteran claims service connection
is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).

Analysis

The Veteran claims service connection for a heart disability. Specifically, in his May 2017 claim and October 2017 notice of disagreement, he stated that he had a heart murmur that arose due to rheumatic fever during service.

In the January 2020 rating decision on appeal, the RO found that the in-service element of the claim has been established. The RO also found that new and relevant evidence had been received to warrant readjudication of the previously denied claim for a heart disorder as a residual of rheumatic fever. The Board is bound by these favorable finding. 38 C.F.R. § 3.104(c).

Service treatment records reflect that in the report of medical history associated with a July 1967 periodic examination, the Veteran reported that he was hospitalized for 30 days in 1963 for heart murmur and rheumatic fever. Thereafter, while the Veteran did not receive any follow up treatment for a heart disability, he continued to report heart problems throughout the remainder of his service, specifically at his reenlistment examinations in August 1969, March 1972, and April 1982. During his last April 1982 reenlistment examination, the Veteran indicated that he was in good health and was not on any medication. During an October 1985 separation medical exam, the Veteran did not list any heart trouble or problems.

VA treatment records reflect that in October 1999, March 2000, June 2001, June 2002, and May 2003, physical examination revealed the Veteran's heart sounds described as NSR (normal sinus rhythm) and without murmurs. The June 2001 progress note further indicates that while the Veteran had a heart murmur years ago with a history of rheumatic fever, his heart murmur disappeared. Additional post-service treatment records from the Naval Hospital at Pensacola, Florida, show that a July 2003 echocardiogram revealed no signs of rheumatic heart disease. January 2005 x-rays show unremarkable slightly ecstatic and uncoiled aorta. In March 2008, the Veteran was scheduled for a nuclear stress test as part of a pre-operation evaluation. The Veteran denied any cardiac history or chest pain. Results revealed that the Veteran did not present arrhythmias, chest pain, his blood pressure was acceptable, and a normal EKG. Thereafter, the Veteran complained of chest pain while resting. He underwent an October 2013 Nuclear Medicine Myocardial Perfusion Rest and Stress Test. The results revealed no evidence of induced ischemic changes during the procedure. In January 2013, the Veteran stated that he currently did not have any cardiovascular symptoms. In September 2014, the Veteran indicated that he does not have a heart disease. VA treatment records show that in January 2015, a VA provider examined the Veteran and noted that his heart was within normal limits with normal sounds, RRR (regular rate and rhythm), without murmur, rub or gallops. In May 2015, the Veteran's VA primary care physician conducted another physical examination and described the Veteran's heart as with RRR, without rubs, murmurs, or gallops. The VA provider did not mention a heart disorder as part of the Veteran's problems list. Additional treatment records from June 2017, January 2018, and January 2019 reflect that the Veteran continued to present with a normal heart rate and rhythm. VA treatment records show that in February 2019 the Veteran's heart continued to be noted as normal. In September 2019 he was noted to have a history of rheumatic fever with murmur during his childhood. In December 2019 he denied any current chest pain or discomfort.

The Veteran was afforded a VA examination in connection with a prior claim in July 1987. X-ray revealed normal results. While the examination report noted that the Veteran's claims file was not available for review, the Veteran denied any exertional chest pain or palpitation, paroxysmal dyspnea, dyspnea
, and January 2019 reflect that the Veteran continued to present with a normal heart rate and rhythm. VA treatment records show that in February 2019 the Veteran's heart continued to be noted as normal. In September 2019 he was noted to have a history of rheumatic fever with murmur during his childhood. In December 2019 he denied any current chest pain or discomfort.

The Veteran was afforded a VA examination in connection with a prior claim in July 1987. X-ray revealed normal results. While the examination report noted that the Veteran's claims file was not available for review, the Veteran denied any exertional chest pain or palpitation, paroxysmal dyspnea, dyspnea on exertion, such as during ascent or descent of steps, and without a history of syncope. The VA examiner concluded that the Veteran's rheumatic carditis resolved as during examination the Veteran had a normal sinus rhythm and a history of heart murmur was not found during the physical exam.

The Veteran was afforded a VA examination in connection with his current claim in January 2020. The examination report does not contain a diagnosis for a heart disease, to include coronary artery disease or ischemic heart disease. The examiner noted that the Veteran is not currently under medication for a heart disability, does not have a history of myocardial infarctions, does not present a history of congestive heart failure, arrhythmia, or valve conditions. The examiner noted that the Veteran is well developed, well-nourished and in no acute distress. In conclusion, the VA examiner stated that for the claimed condition of rheumatic fever with strep throat and heart murmur, there is no diagnosis because the condition has resolved.

The Board finds that the evidence is persuasively against a finding of a current heart disability or any other residual or rheumatic fever. As noted above, post-service treatment records dated from at least October 1999 to December 2019 do not show a current heart disability. While some of those records make reference to a past history of rheumatic fever with heart murmur, throughout the years all the health providers who have treated the Veteran in one way or the other agree that he does not have a current heart disability, to include one considered a residual of his in-service episode of rheumatic fever in 1963. As previously noted, the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Here, however, the record reflects that the Veteran has not had a current heart disorder at any time during the pendency of the claim or recent to the filing of the claim. See Romanowsky, 26 Vet. App. at 94; McClain, 21 Vet. App. at 321. The January 2020 VA examination is the most persuasive evidence as the examiner, a VA physician, found that the Veteran does not have a heart disability upon review of the Veteran's entire medical history and the in-person examination. This is well supported by post-service treatment records which, as previously noted, do not account for a diagnosis a heart disorder, to include one considered a residual of his rheumatic fever during service.

Accordingly, the first element of service connection has not been met. Without evidence of a current hearing disability, the Board need not address the other elements of service connection. See 38 U.S.C. § 1110 (2012); Degmetich v. Brown, 104 F. 3d 1328 (1997) (the existence of a current disability is the cornerstone of a claim for VA disability compensation); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of evidence of a present disability, there can be no valid claim); Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (stating "[w]ithout a current disability, of course, there can be no service connection and, thus, no disability compensation.")

The Board acknowledges the Veteran may experience symptoms that lead him to believe he has a heart disorder which is related to his in-service rheumatic fever; however, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret objective diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide a diagnosis for a heart disorder.

According
stating "[w]ithout a current disability, of course, there can be no service connection and, thus, no disability compensation.")

Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for a heart disability or for any other residual of rheumatic fever is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to an initial higher compensable rating for service-connected hearing loss prior to August 13, 2021

As an initial matter, following certification to the Board of the present appeal, the Veteran filed a new increase rating claim under the AMA system for his service-connected hearing loss in August 2021. In an October 2021 rating decision, the RO increased the Veteran's rating from a noncompensable evaluation to a 30 percent rating effective August 13, 2021, the date his increase rating claim was received. The Veteran did not appeal this rating decision. Moreover, this decision was based on evidence that was received during a period of time when new evidence was not allowed in this appeal. The Board thus may not consider that evidence. 38 C.F.R. § 20.300. As such, the appeal before the Board only concerns a review of the increase rating claim for hearing loss, but only for the period prior to August 13, 2021, as that is the period which was considered by the RO under the AMA system and from which the present appeal stems. The period from August 13, 2021 is outside the scope of this decision.

In a February 2016 rating decision, the RO granted service connection for hearing loss and assigned a noncompensable rating effective August 19, 2015, the date a claim for service connection was received. Thus, the review period before the Board begins on August 19, 2015, through August 13, 2021, the date the increased rating claim discussed above was received.

The Veteran contends that the severity of his bilateral hearing loss warrants a compensable rating.

The Veteran was afforded a VA examination in connection with his service connection claim in January 2016. The audiology examination report, on initial consideration, appears to reflect level I hearing impairment for both ears. Such levels of hearing impairment correspond to a noncompensable rating evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. Further, the Veteran's Maryland CNC speech discrimination test revealed a 100 percent speech discrimination bilaterally. The examiner, however, indicated that the "Veteran wears binaural hearing aids to assist in hearing and communication."

Thereafter, the Veteran was afforded a second VA audiology examination in April 2019. The audiology examination report appears to reflect level III hearing impairment for the right ear, and level I hearing impairment for the left ear. Such levels of hearing impairment, again, correspond to a noncompensable rating evaluation pursuant to 38 C.F.R. § 4.85, DC 6100.

In an appellate brief received in August 2022, the Veteran's representative challenged the adequacy of the January 2016 VA examination. Specifically, the representative argued that the audiology examination and rating failed to consider the "VA margin of error" in audiograms. The representative cited to multiple VA regulations regarding the reasonable doubt doctrine and VA's general policy application which discusses that the basis of disability evaluations is functioning under the ordinary conditions of daily life. Based on these arguments, the representative requested the Board to consider the application of VA "normal measurement variability" to all audiograms used for rating and to remand for Maryland CNC testing consistent with VA's rating policy.

38 C.F.R. § 4.85 provides that an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will
consider the "VA margin of error" in audiograms. The representative cited to multiple VA regulations regarding the reasonable doubt doctrine and VA's general policy application which discusses that the basis of disability evaluations is functioning under the ordinary conditions of daily life. Based on these arguments, the representative requested the Board to consider the application of VA "normal measurement variability" to all audiograms used for rating and to remand for Maryland CNC testing consistent with VA's rating policy.

The Board finds that it is not clear from the January 2016 and March 2019 VA examination reports whether the Veteran's audiometry and Maryland CNC speech discrimination tests were conducted without the use of his hearing aids. While the January 2016 VA audiologist noted that the "Veteran wears binaural hearing aids to assist in hearing and communication," and the March 2019 audiologist noted that the Veteran "currently wears hearing aids," both failed to indicate whether the required testing was conducted without hearing aids. As noted by the Veteran's representative, that is the way to be conducted for consistency with VA's rating policy pursuant to 38 C.F.R. § 4.85(a). The lack of clarity regarding that aspect of the claim constitutes a pre decisional duty to assist error and prevents the Board from adjudicating the claim at this time.

For the reasons set forth above, the Board finds that the claim must be remanded to clarify from the January 2016 and March 2019 VA audiologists to the extent possible, whether the audiometry testing performed during their respective examinations was conducted without the use of hearing aids.

2. Entitlement to a rating in excess of 20 percent for a right ankle disability

3. Entitlement to a compensable rating for service-connected right ankle scars

The Veteran contends that a higher rating in excess of 20 percent for his right ankle disability, and a compensable rating for his right ankle scars are warranted. Specifically, in his October 2016 notice of disagreement he stated that the currently assigned 20 percent for his right ankle does not compensate for the severity of his disability as his right ankle is fused and does not move. The Veteran also contended in April 2018 claim that his right ankle scars are painful.

With respect to his right ankle disability, the Veteran was afforded a VA examination in connection with this claim in January 2016. The examination report contains a diagnosis of right ankle ankylosis since 2007. The report further shows right ankle ankylosis in plantar flexion. The examiner did not conduct range of motion (ROM) testing and indicated that the right ankle was fused in 15 degrees plantar flexion.

The Veteran was afforded a second VA examination in connection with this claim in June 2018. The VA examiner noted that the Veteran's right ankle was fused and that there was no movement in dorsiflexion or plantar flexion. As such, the examiner reported dorsiflexion and plantar flexion to 0 degrees respectively. The examiner found that the ankle was fused and that range of motion was not intact. The examiner further noted that while the examination was not conducted during a flare-up, it was consistent with the Veteran's statements describing functional loss during flares. Notwithstanding the foregoing, the VA examination report shows that the Veteran does not have ankylosis of the right ankle. Accordingly, in a July 2018 rating decision, the RO confirmed and continued a 20 percent rating, but changed the applicable Diagnostic Code (DC) to DC 5271 (limited motion of the ankle) from DC 5270 (ankylosis of the ankle), the rating criteria under which the Veteran's right ankle had been rated up to that point.

Post-service treatment records show that in November 2017, the Veteran's health provider noted normal muscle strength on dorsiflexion and plantar flexion of the right ankle. The record indicates that the Veteran had some type of motion of the right ankle during the assessment.

The Board is mindful that the Veteran is already receiving the maximum evaluation of 20 percent under 38 C.F.R. § 4.71a, DC 5271 for limitation of motion for the ankle based on the re rating of his disability under that DC. However, a higher rating under DC 5270 may be warranted if there is a showing of ankylosis (or functional ankylosis) within certain ranges of motion. Even though the June
that in November 2017, the Veteran's health provider noted normal muscle strength on dorsiflexion and plantar flexion of the right ankle. The record indicates that the Veteran had some type of motion of the right ankle during the assessment.

The Board is mindful that the Veteran is already receiving the maximum evaluation of 20 percent under 38 C.F.R. § 4.71a, DC 5271 for limitation of motion for the ankle based on the re rating of his disability under that DC. However, a higher rating under DC 5270 may be warranted if there is a showing of ankylosis (or functional ankylosis) within certain ranges of motion. Even though the June 2018 VA examiner checked the box indicating "no ankylosis," the examiner noted in the same examination that there is no movement in dorsiflexion or plantar flexion and reported dorsiflexion and plantar flexion to 0 degrees respectively. The examiner's contradictory findings constitute a pre-decisional duty to assist error that must be clarified with another VA examination.

With respect to the claim for a compensable rating for his right ankle scars, in his April 2018, compensation claim, the Veteran indicated that he experiences pain associated with his right ankle scars.

The Veteran underwent a VA ankle examination in January 2016. The report describing the Veteran's right ankle scars indicated that the scars were neither painful nor unstable.

The Veteran was first afforded a VA scars examination in June 2018. The report described two ankle scars that were neither painful nor unstable. Nonetheless, the Veteran clarified that pain in his right ankle scars depends on the weather. The VA examiner, however, indicated that as the scars were not tender to palpation on examination, the Veteran's subjective reports were not clinically consistent.

The Board finds that the June 2018 VA scars examination is not wholly sufficient to decide the Veteran's claim. The examiner found that his scars were not tender to palpation during the examination and opined that the Veteran's reports of pain were not clinically consistent. The opinion disregarded the Veteran's lay statements regarding pain. The Board notes that the Veteran is competent to report on that which comes through the use of his senses (i.e., pain during weather changes). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, the examiner failed to explain why, beyond the findings of the in-person examination, the Veteran's statements suggesting flare-ups of pain dependent on weather changes are not medically plausible. The opinion is limited to indicate that his reports of pain are not clinically consistent without a supporting rationale and without consideration of the Veteran's insistence, as noted by the examiner, that the scars to the ankle were more painful dependent on weather. A medical opinion is inadequate if it is based solely on the absence of objective evidence and does not account for the claimant's reports of symptoms and history. See Dalton v. Peake, 21 Vet. App. 23 (2007).

The inadequacy of the June 2018 VA examination and opinion constitutes a pre decisional duty to assist error and, therefore, the claim must be remanded for a new VA examination and opinion with consideration of the Veteran's statements regarding pain.

Thus, given the Veteran's statements indicating that he cannot move his right ankle, which in turn suggests ankylosis of the joint, the potential applicability of the criteria set forth in DC 5270, the inadequacy of the June 2018 VA scars examination, and the Veteran's competent reports of pain in his scars, the Board finds that a remand is warranted for another examination to clarify these fundamental aspects of the claims.

4. Entitlement to service connection for a thoracolumbar spine disability as secondary to service-connected right ankle and right knee disabilities

The Veteran seeks service connection for a thoracolumbar spine disability, as secondary to his service-connected right ankle and right knee impairments, identifying the issue as such in his August 2015 claim and his October 2016 notice of disagreement. Moreover, in an August 2022 appellate brief, his representative argues that his back disability stems from the abnormal gait produced by his right ankle and right knee disabilities. Thus, the Board will solely address this issue as one of service connection on a secondary basis pursuant to 38 C.F.R. § 3.310.

Post-service treatment records reflect a report of back pain in 2008. Specifically, an October 2008 record notes a diagnosis of osteoarthritis but without particular specificity regarding his back. In September 2013, the Veteran complained of chronic back pain again in September 2013 after a fall and was diagnosed with lumbago
claim and his October 2016 notice of disagreement. Moreover, in an August 2022 appellate brief, his representative argues that his back disability stems from the abnormal gait produced by his right ankle and right knee disabilities. Thus, the Board will solely address this issue as one of service connection on a secondary basis pursuant to 38 C.F.R. § 3.310.

Post-service treatment records reflect a report of back pain in 2008. Specifically, an October 2008 record notes a diagnosis of osteoarthritis but without particular specificity regarding his back. In September 2013, the Veteran complained of chronic back pain again in September 2013 after a fall and was diagnosed with lumbago. The Veteran followed up in October 2013. Subsequent treatment records from Walter Reed, Bethesda Naval Hospital show that the Veteran denied back pain or history of trauma in June 2017 and October 2017 and was told that his lumbar spine was normal in November 2017 and January 2018.

The Veteran was afforded a VA examination in connection with this claim in January 2016. The examination report reflects a diagnosis of degenerative arthritis of the thoracolumbar spine. The Veteran reported a gradual onset of back pain in 2005. The examiner opined that the claimed thoracolumbar spine disability was less likely than not proximately due to, or the result of, the Veteran's service-connected right ankle. This opinion was based on the rationale that there was no evidence connecting a back condition to a right ankle condition.

The Board also notes that in connection with a right knee disability claim beyond the scope of this decision, a January 2016 VA examiner noted that the position of the Veteran's right ankle fusion was outside recommendations, and excessive plantar flexion appeared to be overloading his right knee.

In his October 2016 notice of disagreement, the Veteran indicated that his back problems stem from many years of favoring one side over the other as a result of his right ankle symptoms.

The Veteran was afforded a second VA examination in connection with this claim in April 2019. The report contains diagnoses of degenerative arthritis of the spine, scoliosis, and sacroiliac osteoarthritis. The report indicates that the onset of symptoms began in 2015. The examiner opined that the claimed disability was less likely than not proximately due to, or the result of the Veteran's service-connected right ankle disability. The examiner opined that the claimed disability is less likely than not proximately due to, or the result of his service-connected right ankle and associated symptoms. This opinion was based on the rationale that there was no evidence in the medical records connecting his claimed back condition to the status post fused right ankle. The examiner further opined that following the chronology from baseline severity from normal in 2011 to the low back pain status post fall in 2013 which is unrelated to the right ankle condition, the claimed back disabilities are less likely than not aggravated beyond their natural progression by his service-connected conditions. This opinion was based on the rationale that while treatment records reflect a complaint in October 2008 for back pain, the visit "appears" to have been for right knee pain and not back pain.

In an August 2021 appellate brief, the Veteran's representative advanced additional arguments in support of the Veteran's claim. Specifically, the representative stated that his service-connected right ankle, right knee, and left toes disabilities cause an abnormal gait and stance which in turn affects his back. The representative further noted that the negative opinions of record failed to consider that people with bad knees and feet tend to fall and get hurt, as it is the case here. The representative argued that an April 2018 VA ankle examination specifically documents that the Veteran cannot run or walk long distances and has poor balance while negotiating stairs. The appellate brief cites to medical research favoring the theory that with long term altered gait and stance other joints can be affected and that a complete gait analysis cannot be done with the naked eye as it involves angles of the foot, toes, ankles, and knees, as well as timing the stride. Finally, the brief argued that it was self-evident that walking with a locked ankle is more jarring to the back than not. The Veteran's representative concluded that should the Board not grant the benefit sought, and that a remand for a medical opinion that considers biomechanics should be warranted.

With respect to the January 2016 VA examination, the Board finds that the examiner failed to provide a valid rationale as the examiner limited the analysis to a conclusory statement that there was no evidence of a nexus without discussion and/or consideration of the effect the Veteran's abnormal gait, as a result of his right ankle
as it involves angles of the foot, toes, ankles, and knees, as well as timing the stride. Finally, the brief argued that it was self-evident that walking with a locked ankle is more jarring to the back than not. The Veteran's representative concluded that should the Board not grant the benefit sought, and that a remand for a medical opinion that considers biomechanics should be warranted.

With respect to the April 2019 VA examination and opinion, the Board finds the examiner's opinion is inadequate for multiple reasons.

First, the examination report indicated that the onset of the Veteran's disability occurred in or around 2015. Later in the report, the examiner indicated that the Veteran began complaining of back pain in 2013 after a fall. As noted above, post-service treatment records show that the Veteran began complaining of back pain, somehow associated with his right ankle and right knee disabilities in 2008. This, in turn, seems to lend support to the Veteran's statements during his January 2016 VA examination indicating that the onset of his back pain has been gradually worsening ever since 2005. The foregoing was not discussed nor appears to have been considered by the April 2018 VA examiner.

Second, the examiner failed to consider whether the Veteran's fall, to which he attributes his current back disability, could have potentially been the result of his abnormal gait as a result of his right ankle fusion since as stated by the January 2016 examiner who conducted the right knee examination, the right ankle fusion is outside recommendations and excessive plantar flexion appears to be overloading other joints. The foregoing establishes a plausible theory that was not discussed nor addressed by the April 2019 VA examiner. This is relevant to the present claim as the Veteran had previously stated that his back problems stem from many years of favoring one side over the other as a result of his right ankle symptoms. Additionally, the examiner's rationale as to the causation prong is not sufficient as it appears to have been materially based on the lack of objective evidence associating the two disabilities, without providing a valid analysis involving the biomechanics of the joints involved, particularly considering all potential effects of the Veteran's abnormal gait. The report does not show that the examiner elicited from the Veteran the circumstances surrounding his fall in 2013.

Lastly, the Board also finds that the aggravation opinion is not sufficient as its rationale appears to have been provided around the causation question (i.e., the 2013 fall) without considering the possibility of long-term altered gait.

As the matters discussed above constitute pre decisional duty to assist errors, the claim must be remanded for further analysis to assess those aspects of the claim.

Thus, in light of the arguments advanced by the Veteran's representative and the lack of a valid rationale by the January 2016 and April 2019 VA examiners, the Board finds that a remand is warranted for a VA opinion by an orthopedist specialist to reconcile the medical evidence of record and comment on the nature and etiology of the claimed back disability.

The matters are REMANDED for the following action:

1. With respect to the increase rating claim for hearing loss prior to August 13, 2021, request, to extent feasible, from the January 2016 and March 2019 VA audiologists clarification as to whether the Veteran's audiometry tests, and Maryland CNC testing were conducted without the use of hearing aids pursuant to 38 C.F.R. § 4.85(a).

Only if the January 2016 and March 2019 VA audiologists are not available to respond, or cannot provide clarification regarding that aspect, forward the claims file to an otolaryngology (ENT) specialist to provide, to the extent possible, a retrospective opinion as to the severity of the Veteran's hearing loss prior to August 13, 2021. All relevant records must be made available to the physician for review.

A complete rationale must be provided for any opinions expressed.

2. Schedule the Veteran for a new VA examination and opinion by a qualified medical professional with respect to his increase rating claims for a right ankle disability and right ankle scars. The claims file must be reviewed by the examiner.

(a.) With respect to the increase claim for a right ankle disability, the examiner must clarify whether the Veteran's right ankle fusion constitutes ankylosis (or the functional equivalent) of the right
olaryngology (ENT) specialist to provide, to the extent possible, a retrospective opinion as to the severity of the Veteran's hearing loss prior to August 13, 2021. All relevant records must be made available to the physician for review.

A complete rationale must be provided for any opinions expressed.

(a.) With respect to the increase claim for a right ankle disability, the examiner must clarify whether the Veteran's right ankle fusion constitutes ankylosis (or the functional equivalent) of the right ankle on plantar flexion, dorsiflexion, abduction, adduction, or inversion or eversion deformity. Consideration should be given to the Veteran's statements indicating that he does have movement in his right ankle.

(b.) With respect to the compensable rating claim for right ankle scars, the examiner should clarify whether the Veteran's scars are either painful or unstable. Consideration should be given to the Veteran's statements that his right ankle scars become painful depending on weather changes.

The Veteran is competent to report on that which he can observe and describe through the use of his senses.

A complete rationale should be provided for any opinions reached.

3. Schedule the Veteran for a new VA examination by an orthopedist specialist to comment on the nature and etiology of the claimed thoracolumbar spine disability. The claims file must be reviewed by the examiner.

The examiner is asked to identify whether the Veteran has a thoracolumbar spine disability, to include degenerative arthritis of the spine, scoliosis, and/or sacroiliac osteoarthritis. Any diagnostic testing deemed necessary must be conducted.

(a.) The examiner is then asked to provide an opinion as to whether it is at least as likely as not (an approximate balance of negative and positive evidence), that any identified thoracolumbar spine disability is proximately due to, or the result of, the Veteran's abnormal gait produced by his service-connected right ankle disability and associated impairments.

(b.) If not to (a), the examiner is then asked to provide an opinion as to whether it is at least as likely as not (an approximate balance of negative and positive evidence), that any identified thoracolumbar spine disability was aggravated, beyond its natural progression, by the altered gait resulting from his service-connected right ankle disability.

If there is aggravation, the examiner should determine the baseline level of the disability prior to such aggravation.

Consideration should be given to: (1) the Veteran's statements that his back problems stem from many years of favoring one side over the other as a result of his right ankle symptoms; (2) the Veteran's statements during his January 2016 VA examination suggesting that the onset of his disability began in 2005; and (3) the Veteran's reports of back pain in October 2008.

J. GALLAGHER

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board William Pagan, 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.

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