Citation Nr: 0814356 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-31 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating for arthritis of the left ankle joint, with a history of left tibia/fibula fracture, left peroneal and sural neuropathy, and osteomyelitis, currently evaluated as 10 percent disabling. 2. Service connection for low back disability as secondary to the service-connected left lower extremity disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Muhlfeld, Associate Counsel INTRODUCTION The veteran had active military service from April 1954 to April 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. The veteran's service-connected left lower extremity disability is manifested by pain and functional loss that equates to no more than moderate limitation of motion. 2. A low back disability has not been caused or made worse by service-connected left lower extremity disability. CONCLUSIONS OF LAW 1. The criteria for a schedular rating in excess of 10 percent for service-connected left lower extremity disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2007). 2. The veteran's low back disability is not proximately due to or the result of his service-connected left lower extremity disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.102, 3.310 (2007); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the veteran was apprised of VA's duties to both notify and assist in correspondence dated in September 2004, November 2004, November 2005, and September 2006. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claim, "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Consequently, the Board does not find that the late notice under the VCAA requires remand to the RO. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA.) Specifically regarding VA's duty to notify, the notifications to the veteran apprised him of what the evidence must show to establish entitlement to the benefits sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the veteran's behalf. The RO specifically requested that the veteran either identify or submit any evidence or information he had pertaining to his claim. The RO also provided a statement of the case (SOC) and two supplemental statements of the case (SSOC's) reporting the results of its reviews of each issue and the text of the relevant portions of the VA regulations. Further, a September 2006 letter to the veteran apprised him of the criteria for assigning disability ratings and for award of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO made efforts to obtain the veteran's service medical records (SMRs), and VA and private medical records, and secured examinations in furtherance of his claim. Regarding the veteran's service medical records, the Board notes that his records are unavailable and presumed destroyed in a 1973 fire at the National Personnel Records Center. As such, VA's duty to assist the veteran, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit of the doubt rule are heightened. Milostan v. Brown, 4 Vet App. 250, 252 (1993); citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991); and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In this case, the RO resolved reasonable doubt in the veteran's favor, and awarded service connection for left peroneal and sural neuropathy with history of fracture of tibia and fibula and osteomyelitis, by way of an October 1999 rating decision. At issue now is an increased rating for this disability, and service connection for a low back disability caused or aggravated by the service-connected left lower extremity disability; neither of which require examination of the service medical records in order to adjudicate. VA has no duty to inform or assist that was unmet. The Board has considered the Court's recent holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concerning increased compensation claims and 38 U.S.C. § 5103(a) notice requirements, and finds that further notification is not necessary. With such claims, section 5103(a) compliant notice must meet the following four part test: (1) that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Preliminarily, the Board notes that the notice provided in this case was issued prior to the decision in Vazquez-Flores. As such it does not take the form prescribed by that case. Failure to provide pre-adjudicatory notice of any of the necessary duty-to-notify elements is presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). Nevertheless, lack of harm may be shown (1) when any defect was cured by actual knowledge on the part of the claimant, (2) when a reasonable person could be expected to understand from the notice what was needed, or (3) when a benefit could not have been awarded as a matter of law. Id., at 887; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair. See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Board notes that the veteran was questioned about the effect the worsening of his lower extremity disability had on his daily life and occupational activities at both the October 2004, and August 2006 VA examinations performed in association with this claim. The Board finds that the responses to the questioning at the October 2004, and August 2006 examinations regarding the situations that give the veteran the greatest difficulty in his daily life show that the veteran had actual knowledge that medical and lay evidence was required to show an increase in severity, including the impact on his daily life. Letters to the veteran dated in September 2004 and September 2006, provided notice that a disability rating would be determined by application of the ratings schedule and relevant Diagnostic Codes based on the extent and duration of the signs and symptoms of his disability and their impact on his employment and daily life. See Vazquez-Flores. The ratings schedule is the sole mechanism by which a veteran can be rated, excepting only referral for extraschedular consideration and the provisions of special monthly compensation. See 38 C.F.R. Part 4. The veteran was made aware of this. In addition, these letters provided notice to the veteran of the types of evidence, both medical and lay, that could be submitted in support of his claim. In light of the foregoing, the Board finds that, while the notice requirements of Vazquez-Flores were not met as contemplated by the Court, the administrative appeal process provided the veteran with notice of the specific rating criteria, and it is apparent from the record that he understood those things relative to a claim for increase as contemplated by the Vazquez-Flores Court. Consequently, a remand is not now required to furnish additional notice. Increased rating The veteran contends that his current left lower extremity disability, the residual of an August 1955 compound fracture of his distal tibia/fibula, has increased in severity. The veteran was afforded a VA examination in October 2004, which described the history of the veteran's injury, noting that in August 1955, while stationed in Germany, the veteran's leg was crushed when it was run over by an ammunition truck. The veteran reported that he had multiple hospitalizations in Germany for a fracture of his left tibia and fibula with a wound infection. The examiner noted a history of osteomyelitis, and noted that the last active infection was in 1955, and the last hospitalization for osteomyelitis was also in 1955. The examiner noted inflammation, swelling, and tenderness of the left lower leg, but reported no heat or redness. The examiner also noted pain at the left anterior ankle but stated that this condition did not affect the motion of a joint. On examination, the examiner noted no evidence of leg shortening, no bone or joint abnormality, and reported no functional limitation on standing or walking and no ankylosis. Range of motion testing of the left ankle revealed dorsiflexion zero to zero degrees, pain beginning at zero degrees and ending at zero degrees, and noted no additional limitation of motion on repetitive use. Plantar flexion was zero to 40 with pain beginning at 40 degrees and ending at 40 degrees, and the examiner noted no additional limitation of motion on repetitive use. An x-ray taken in October 2004 of the tibia and fibula demonstrated old healed fractures in the distal tibia and fibula, but noted no acute fracture or localized destruction, and the impression provided was that the veteran had old healed fractures. An x-ray of the left ankle demonstrated marginal sclerosis and small spurs consistent with degenerative arthritis of the left ankle, and stated that a small spur was noted from the plantar aspect of the calcaneum. The diagnosis was healed fractures of the left tibia and fibula; degenerative joint disease of the left ankle, and a left heel spur. The examiner noted that there was a significant effect on occupational activities with decreased mobility and pain. The veteran was afforded another VA examination in August 2006, at which point the veteran reported a painful left ankle, noting that the pain was rather constant and varied between 7 and 8/10 in intensity. The veteran reported that he did not use any ankle brace, and more recently had begun using a crutch. He reported no instability and noted that repetitive use increased the pain in his ankle and his walking was affected. He reported no history of flare-ups but noted that he took Tramadol. On examination, the examiner noted that the left leg revealed that alignment was normal and there was very small atrophy of the left calf, but that the skin was healthy all around, and there was a small puncture wound like a scar on the medial side of the ankle, and no tenderness over the leg or the ankle. Range of active and passive motion of the ankle revealed extension to 15 degrees without any pain, flexion to 25 degrees also without pain, and inversion was 10 degrees with complaints of pain, and eversion was 5 degrees. Power against resistance was 4+/5 with complaint of pain, and sensation to monofilament touch along ankle and foot was present. Regarding neurological symptoms, the examiner specifically stated that there was no evidence of sural neuropathy, and noted that both lower limbs were negative for any neurological deficiency, and stated that there was half an inch shortening of the right lower limb as compared to the left. There was no muscle atrophy and deep tendon reflexes were equal bilaterally, leg alignment was normal, and sensation to pinprick and light touch at all dermatomes was equal on both sides. X-rays taken at the time of the examination revealed a healed fracture of the distal tibia and fibula in excellent position, with very mild arthritic changes of the ankle joint. The examiner diagnosed the veteran with a healed fracture of the distal tibia and fibula on the left in excellent alignment, and minimal degenerative arthritis of the ankle with minor limitation of motion. The examiner noted no additional limitation of motion of the left ankle due to pain, fatigue, weakness or lack of endurance on repetitive use. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Additionally, when evaluating musculoskeletal disabilities, VA must, in addition to applying schedular criteria, consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or in coordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2005); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Here, as noted above in the VA examinations provided in October 2004 and August 2006, the effects of pain on use, functional loss, and excess fatigability were taken into account in assessing the range of motion of the veteran's left ankle. For historical purposes, the Board notes that by way of a November 1999 rating decision, the veteran was granted service connection with a noncompensable evaluation for left peroneal and sural neuropathy with a history of fracture of the tibia and fibula and osteomyelitis; and was initially rated under diagnostic code 8522, which pertains to impairment of the musculocutaneous nerve (superficial peroneal) and governs disabilities with manifestations such as weakened eversion of the foot. In September 2004, the veteran filed a claim for an increased rating for his left ankle disability, and by way of a January 2005 rating decision, the RO increased the veteran's disability to 10 percent disabling, effective September 9, 2004, under diagnostic code 5262, based on a finding of degenerative joint disease in the left ankle. Further, after considering staged ratings, as will be explained below, the Board finds that an evaluation higher than the currently assigned 10 percent is not warranted at any point during the period in question. Hart, supra. The veteran's left lower extremity disability was initially rated utilizing diagnostic code 8522, which contemplates impairment of the musculocutaneous nerve (superficial peroneal) and governs disabilities with manifestations such as weakened eversion of the foot. Diagnostic code 8522 provides a 20 percent rating for severe incomplete paralysis and a 30 percent rating for complete paralysis. A zero percent rating is warranted for mild incomplete paralysis, and a 10 percent rating is warranted for moderate incomplete paralysis. The veteran's left lower extremity disability is currently rated at 10 percent disabling utilizing the rating criteria found at 38 C.F.R. § 4.71a, Diagnostic Code 5262, impairment of the tibia and fibula, or malunion of the tibia and fibula with loose motion, requiring the wearing of a brace. Under Diagnostic Code 5262, a 10 percent rating is for application when there is slight knee or ankle disability. A 20 percent rating is for application when there is moderate knee or ankle disability, and a 30 percent rating is for application when there is marked knee or ankle disability. Although the veteran's left ankle disability has been previously rated under diagnostic code 8522, and under code 5262, these codes are no longer appropriate for rating the veteran's disability. Specifically, as noted by the most recent August 2006 examination, both lower limbs were negative for any neurological deficiency; and as the examiner explained, deep tendon reflexes were equal bilaterally and sensation to pinprick and light touch at all dermatomes were equal on both sides. Further, it is also not appropriate to rate the veteran under diagnostic Code 5262, impairment of the tibia and fibula, or malunion of the tibia and fibula with loose motion, requiring the wearing of a brace, because x-rays taken at the time of the August 2006 examination revealed a healed fracture of the distal tibia and fibula on the left with excellent alignment, thereby confirming that there is no malunion of the tibia or fibula. In this case, the Board finds that the veteran's left ankle disability which involves degenerative arthritis of the ankle joint, is most appropriately evaluated utilizing Diagnostic Code 5003, which, in turn, calls for rating the degenerative arthritis on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed. Here, limitation of motion of the ankle is evaluated utilizing diagnostic code 5271. Under diagnostic code 5271, a 10 percent rating is for application when there is moderate limitation of motion, and a 20 percent rating, the highest available under Diagnostic Code 5271, is for application when there is marked limitation of motion of the ankle. The Board notes that normal range of motion of the ankle is measured as 0-20 degrees of dorsiflexion and 0-45 degrees of plantar flexion. 38 C.F.R. § 4.71 (Plate II) (2007). In this case, after evaluating the veteran's range of motion testing conducted at both his October 2004 and August 2006 examinations, the Board finds that a higher 20 percent evaluation based on limitation of motion is not warranted. Specifically, regarding dorsiflexion, the August 2006 examiner noted extension/dorsiflexion to 15 degrees (only 5 degrees less than full range of motion), and plantar flexion on the October 2004 examination was noted to be to 40 degrees (again only 5 degrees short of full range of motion); however, the August 2006 examination showed plantar flexion to 25 degrees. Here, the Board finds that despite the August 2006 examination noting plantar flexion to 25 degrees, this is still greater than half the range of motion, and coupled with the finding of dorsiflexion only 5 degrees less than full, and the August 2006 examiner's diagnosis of minimal degenerative arthritis with only minor limitation of motion, the Board finds that the veteran's left ankle range of motion does not equate to marked limitation of motion, but rather to no worse than moderate limitation of motion, as contemplated by a 10 percent rating. With regard to the effect of pain on function, the August 2006 examiner specifically noted that there was no additional limitation of motion due to pain, fatigue, weakness, or lack of endurance. Consequently, there is no suggestion that the pain causes functional losses that equates to greater limitation of motion. Therefore, a higher, 20 percent rating under this diagnostic code is not warranted. Additionally, as the veteran retains range of motion of the left ankle and ankylosis has not been evidenced in the record, a higher rating is not warranted for ankylosis of the left ankle. See 38 C.F.R. § 4.71a (Diagnostic Code 5270). Also, while the veteran has some shortening of the right leg, the 1/2 inch discrepancy is not enough to award a compensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5275, which requires at least a 11/4-inch shortening before a compensable rating may be assigned. Moreover, there is no indication that the shortening of the right leg is at all related to the service-connected left lower extremity disability. Service connection The veteran contends that his low back pain with sciatica was caused by his service-connected left lower leg disability, specifically, his arthritis of the left ankle joint. In an August 2004 letter, by M.F., M.D., the veteran reported that he had an injury to the left lower leg with a compound fracture while in the Army, and noted that over the years, he had walked with a limp secondary to that injury. He noted that he sprained his right ankle on a couple of occasions, and subsequently developed increasing back discomfort with symptoms of sciatica. The veteran attributes the back and sciatica discomfort to the fact that with the prior injury to the left leg, he made undo compensation to the right ankle sprain, and believed that a lot of the problems he had recently were related to his initial injury to the left lower leg. A January 2004 MRI of the lumbar spine by J.C., M.D., noted a clinical history of back pain with radicular symptoms and gave an impression of L4-5 disc bulge with a moderate spinal stenosis and mild spondylotic changes at L2-3 and to a lesser extent at L3-4. The veteran was afforded a VA spine examination in October 2004, which noted that the veteran developed low back pain with sciatica, which progressively worsened over the previous year. The veteran reported no history of trauma to the spine, and no history of hospitalization or surgery, and noted mild decreased motion and mild stiffness in the lower back. The veteran also reported severe pain in the low back, stating that it was constant and radiated down the left leg to the ankle. The examiner noted no abnormal spinal contours and no ankylosis, and noted flexion from zero to 85 degrees and extension from zero to 25 degrees. An x-ray of the spine taken at the time of the examination demonstrated spurs from the upper and mid lumbar spine consistent with spondylosis, and noted no significant disk space narrowing. Regarding etiology of the veteran's spine disability, the examiner opined that his lumbar spine disability was not related to or caused by his service-connected lower leg condition, explaining that the veteran's left lower leg condition did not cause a leg length discrepancy and that there was no other condition of the left lower extremity that had been shown in the medical literature to cause degenerative changes of the lumbar spine such as seen in this veteran. A November 2005 letter from M.F., M.D., noted the over the past year, the veteran had some problems with left sciatica, and noted that he had a fall with a sprain to his right ankle in the fall of 2004. The examiner noted that the veteran subsequently developed the sciatica discomfort and continued discomfort in the left leg, and noted that he attributed the sprain in the ankle to the fact that his left leg did not support him as well. Dr. F. noted that an examination of the veteran's left lower extremity showed decreased range of motion at the ankle, especially for dorsiflexion, and internal/external rotation, and noted post surgical scarring. Dr. F. opined that the veteran's sciatica could certainly stem from long-term chronic difficulties with the left lower extremity secondary to the compound fracture, noting that the veteran certainly did favor that leg and walked with a limp secondary to the restricted motion in the ankle. A memorandum dated in February 2006 from K.B., a nurse practitioner, noted that the veteran's lumbar spine condition was not caused by or the result of his service-connected left leg fracture, explaining that there was no medical literature that supports the notion that an altered or limping gait causes sciatica, noting that the medical literature addresses the following known etiologies of sciatica: compression, transaction, nerve ischemia/infarct, radiation-induced injury, inflammation and degeneration. The veteran was afforded another VA examination in August 2006, and which point he reported that his lower back had become painful, noting that he could not sit properly because of his back condition, and stated that sometimes he used a walker or a cane, but no back brace. The veteran reported that his activities of daily living were limited as he could not bend or lift, and noted no history or episode of acute excruciating pain in the last 12 months, and reported that repetitive motion increased the pain without additional loss of motion, and that the pain sometimes radiated into the bilateral buttocks, especially when he was sitting. On examination, the examiner diagnosed the veteran with degenerative arthritis of the lumbar spine with some limitation of motion but no evidence of sciatic neuropathy or sural neuropathy. The examiner opined that the veteran's complaint of low back condition was unrelated to his service connected left leg fracture, explaining that the healing of the fracture had been excellent, both in alignment and in remodeling. Moreover, his complaint of back pain started very much later in his life, which was quite consistent with associated degenerative disk disease of the lumbar spine which began gradually. Regarding service connection on a secondary basis, the Board notes that a disability that is proximately due to or the result of a service-connected disease or injury is considered service connected, and when thus established, this secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a). In this regard, the Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen v. Brown, 7 Vet. App. 439 (1995), it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the 2006 change amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. Here, the record contains several opinions regarding the etiology of the veteran's low back disability, specifically, whether or not his symptoms of sciatic neuropathy (as diagnosed by the October 2004 examiner) and degenerative arthritis, were related to his service-connected left leg disability. The October 2004 VA examiner opined that the veteran's lumbar spine disability was not related to or caused by his service-connected lower leg condition (referring to the residuals of his fractured tibia-fibula), explaining that the veteran's left lower leg condition did not cause a leg length discrepancy and that there was no other condition of the left lower extremity that had been shown in the medical literature to cause degenerative changes of the lumbar spine such as seen in this veteran. Further supporting the conclusion of the October 2004 examiner, the August 2006 examiner opined that the veteran's complaints of a low back disability were unrelated to his service-connected left leg fracture, explaining that the healing of the fracture had been excellent, both in alignment and in remodeling. Moreover, the examiner noted that his complaint of back pain started very much later in his life, which was quite consistent with associated degenerative disk disease of the lumbar spine which began gradually. The Board finds these opinions persuasive. The record contains a medical opinion dated in February 2006, discussing whether or not there was any relationship between the veteran's service-connected left leg fracture and sciatica. Specifically, the clinician opined that veteran's lumbar spine condition was not caused by or the result of his service-connected left leg fracture, explaining that there was no medical literature that supported the notion that an altered or limping gait caused sciatica, noting that the medical literature addressed the following known etiologies of sciatica including: compression, transaction, nerve ischemia/infarct, radiation-induced injury, inflammation and degeneration-polyneuropathies; none of which the veteran experienced. The record also contains a November 2005 medical opinion from Dr. F. opining that the veteran's sciatica could certainly stem from long-term chronic difficulties with the left lower extremity secondary to the compound fracture, noting that the veteran certainly did favor that leg and walked with a limp secondary to the restricted motion in the ankle. However, the Board is not persuaded by Dr. F.'s opinion because he failed to provide any clinical data or other rationale to support his opinion that the veteran's sciatica "could certainly" stem from his left lower extremity compound fracture; nor is there anything in the record that would give it substance. Without any sort of rationale for his assertion, the Board does not find that Dr. F.'s opinion is entitled to much probative weight. See Prejean v. West, 13 Vet. App. 444, 448-499 (2000)(the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion). Further, by using the term "could," without supporting rationale, Dr. F.'s opinion is too speculative to provide the degree of certainty required for medical nexus evidence. See Bloom v. West, 12 Vet. App. 185, 187 (1999). Contrary to Dr. F.'s opinion, the February 2006 clinician offered a thorough, detailed explanation, supported by clinical data, as to why she did not find that the veteran's sciatica was caused by or the result of his service-connected left leg fracture. Specifically, she noted that no medical literature supported the notion that an altered gait or limp caused sciatica, and expounded on the various causes of sciatica, none of which the veteran experiences as a result of his left leg disability. Additionally, another VA examiner has noted the absence of back complaint for many years, presumably years during which the veteran's leg was bothersome and during which altered mechanics, if there were any, would have begun to cause back pain. Such explanation give substance to the opinion, which the Board in turn gives greater evidentiary weight. In sum, after considering all the evidence of record, the Board finds that the veteran is not entitled to service connection on a secondary basis for his lower back disability, which includes degenerative arthritis, and at one point, symptoms of sciatic neuropathy. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating for arthritis of the left ankle joint, with a history of left tibia/fibula fracture, left peroneal and sural neuropathy, and osteomyelitis, currently evaluated as 10 percent disabling, is denied. Service connection for a low back disability as secondary to the service-connected left lower extremity disability is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs