Citation Nr: 1308086 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 02-08 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral ankle condition, to include as secondary to the service-connected disabilities of bilateral pes planus, chronic left knee strain and/or chronic right knee strain. 2. Entitlement to service connection for a back condition, to include as secondary to the service-connected disabilities of bilateral pes planus, chronic left knee strain and/or chronic right knee strain. REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from March 1979 to December 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO), wherein the RO, in part, denied service connection for a bilateral ankle condition and a back condition. The Veteran perfected an appeal of the denial of these claims to the Board. During the course of this appeal, jurisdiction of the Veteran's claims was transferred from the Muskogee VARO to the Waco, Texas VARO. In December 2002, the Board issued a decision that denied service connection for a bilateral ankle condition. The Veteran appealed the denial of this claim to the United States Court of Appeals for Veterans Claims (Court) which, by a February 2004 Order, the granted a February 2004 Joint Motion for Remand, vacating the Board's December 2002 decision and remanding the claim for further development in compliance with the Joint Motion. In November 2003, the Board remanded the Veteran's claim for a back condition for additional development. Subsequent to the completion of this development, the RO issued a supplemental statement of the case in which it continued to deny the Veteran's back disorder claim. In January 2005, the Board remanded the Veteran's claims to obtain copies of records pertaining to the Veteran from the United States Social Security Administration (SSA) and to afford the Veteran a VA orthopedic examination. The Board issued a decision in April 2007 that denied service connection for a bilateral ankle condition and a back condition. The Veteran appealed that decision to the Court, which, by a May 2008 Order, granted a May 2008 Joint Motion for Remand vacating the Board's April 2007 decision and remanding the claim for further development in compliance with the Joint Motion. The Board issued a decision in October 2008 in which it denied service connection for a bilateral ankle condition and a back condition. The Veteran again appealed this claim. In an October 2009 Order, the Court granted a September 2009 Joint Motion for Remand vacating the Board's October 2008 decision and remanding the claim for further development in compliance with the Joint Motion. The Board remanded the Veteran's claims to the RO in December 2009 for additional development. In December 2010, the Board sought a medical expert opinion addressing the medical issues in this case. Such an opinion was provided to the Board in January 2011. However, after reviewing the January 2011 medical opinion in conjunction with written argument from Veteran's attorney, the Board again remanded the Veteran's claims for additional development in June 2011. The issue of service connection for a back condition, to include as secondary to the service-connected disabilities of bilateral pes planus, chronic left knee strain and/or chronic right knee strain is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs RO. FINDINGS OF FACT 1. The probative weight of the evidence does not demonstrate a current diagnosis of a bilateral ankle condition. 2. The probative weight of the evidence demonstrates that any bilateral ankle condition noted during the pendency of the appeal did not originate in service, did not manifest for many years thereafter, is not related to any incident during active service and is not directly related to any service-connected disabilities. CONCLUSION OF LAW The criteria for the establishment of service connection for a bilateral ankle condition, to include as secondary to the service-connected disabilities of bilateral pes planus, chronic left knee strain and/or chronic right knee strain, have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was provided notice of the VCAA in April 2001, January 2004, April 2005 and January 2010. The VCAA letters indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran also received notice in February 2007 and January 2010, pertaining to the downstream disability rating and effective date elements of his claim with subsequent readjudication in May 2010, January 2012 and October 2012 supplemental statements of the case. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, private medical records, Social Security Administration (SSA) records, VA outpatient treatment reports, an adequate VA examination and adequate VA opinions, and statements and testimony from the Veteran and his attorney. The Board notes that the December 2011 VA examination report and July 2012 addendum opinion regarding the Veteran's bilateral ankle condition reflect that the examiner reviewed the Veteran's past medical history, documented his current medical condition, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Consequently, the Board concludes that the medical examination and addendum opinion are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). This case was previously remanded by the Board in June 2011 to provide the Veteran with an adequate VA examination for his bilateral ankles. As the VA examiner performed all the tests necessary to evaluate the Veteran's bilateral ankles in December 2011 and provided adequate opinions in December 2011 and July 2012, as noted above, and complied with the Board's remand instructions, the Board is satisfied that the development requested by its June 2011 remand has now been satisfactorily completed and substantially complied with respect to the claim for service connection for a bilateral ankle condition. See Stegall, 11 Vet. App. 268 (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his attorney have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012). Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection will also be presumed for certain chronic diseases, including arthritis, if manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R §§ 3.307, 3.309. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. § 1113. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2012). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. With regard to VA examinations, the Board notes that the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v, West, 13 Vet. App. 31, 35 (1999). Analysis Throughout the duration of the appeal, the Veteran has maintained that he has a current bilateral ankle condition which is related to his military service or, alternatively, which is related to his service-connected bilateral foot or bilateral knee disabilities. Service treatment reports are absent of any evidence indicating treatment or complaints related to the bilateral ankles. The February 1979 enlistment examination revealed no findings of an ankle disability upon clinical evaluation, although a notation of moderate crepitus in both knees and laceration of the foot with no deformity or disability were noted. The Veteran was found to be qualified for active service at that time. In addition, the Veteran did not report a history of ankle problems in the February 1979 Report of Medical History. Upon recommendation by the Veteran's commanding officer that he be separated due to several noted behavioral incidents, the Veteran was provided a Chapter 5 examination in October 1979, at which time there were no complaints or findings of a bilateral ankle condition, although bilateral pes planus of the feet and bilateral tendonitis of the knees were noted upon clinical evaluation. An October 1979 Reports of Medical History reflects that the Veteran reported having swollen or painful joints, however no joints were specified, cramps in the legs when jogging or running, and foot trouble. At that time, there were no reports related to the ankles. A December 1979 Statement of Medical Condition reflects that the Veteran reported his "problem" was getting worse every day, specifying that he could hardly stand on his feet. Private and VA medical records from November 1996 to June 2012 reflect that the Veteran was initially treated for complaints of "all over" bilateral foot pain which was mostly in the ankles and bilateral ankle pain in June 1997 by a private physician, at which time he was diagnosed with bilateral lateral ankle instability. In a September 1997 private treatment report, the Veteran stated his ankle was feeling much better. Private treatment reports from February 2000 to May 2000 reflect that the Veteran was involved in a motor vehicle accident in February 2000 and was diagnosed with multiple injuries secondary to the motor vehicle accident, including a left ankle sprain and myofascial pain syndrome and myalgia. A June 2000 VA outpatient treatment report reflects the Veteran complained of discomfort of the heels, ankles and knees and was diagnosed with plantar fasciitis and pronation of the right greater than the left. An August 2000 private treatment report reflects that the Veteran alleged having a mental disorder, flat foot, hammer toes, spurs and no padding in his knees with an alleged date of onset in December 1999. Also at that time, the Veteran's February 2000 motor vehicle accident was noted and February 2000 x-rays of the skull, cervical spine, lumbar spine, chest, pelvis, right knee, left foot and ankle and thoracic spine were grossly negative for acute fracture or dislocation. SSA records reflect that the Veteran was awarded disability benefits for affective mood disorders and sprains and strains, all types, although no specific joint had been identified. The Disability Determination and Transmittal indicated the disabilities began in December 1999. In his September 2000 disability interview, the Veteran reported that the disabling conditions for which he was receiving disability benefits for included flat feet, bunions, bad knees and bipolar disorder and that his new injuries included arthritis in the low back. The Veteran also reported receiving current treatment from a private physician for the feet, knees, back and ankle problems. In his December 2000 claim, the Veteran reported his disabilities included soreness in the ankles which began in 1979. An April 2002 private medical record reflects that the Veteran reported a history of chronic lower back pain, knee pain and ankle pain for "many, many years." Per a June 2002 private medical report, the Veteran reported having painful flat feet, heel spurs and hammertoes, bilateral which he reported had been present for 24 years and resulted around 1978 as a consequence of his military service. The Veteran was found to be a poor historian and had not filled out questions regarding his past medical history. At that time, x-rays revealed no signs of soft tissue or osseous pathology and no radiographical changes such as osteoarthritis, dislocation or stress fracture. The Veteran was diagnosed with bilateral flexible flat foot deformity and arthritis of the foot and ankle. In July 2002 the Veteran was treated for foot and ankle pain and reported he no longer had foot or ankle pain. In a September 2002 private medical report, the Veteran reported having problems with a flat foot deformity, pain in the right knee and bilateral ankle pain. At that time, the Veteran was diagnosed with osteoarthritis generally, however, the joints associated with this diagnosis were not specified. In a June 2004 VA examination of the feet, joints and spine, the Veteran reported having problems with flat feet, his knees and his spine which had began in service. No complaints or findings related to the ankles were made at this time. In a December 2005 VA examination, the Veteran reported that he had pain in multiple joints while he was in the military, stating that, in 1978 it started in his feet and then involved his ankles, knees and low back. He stated these problems continued since discharge from his active service and finally developed into pain in all joints and the spine. The examiner noted that, although the Veteran complained of bilateral ankle pain, his pain seemed to be associated with the chronic pain in his feet and when his feet became symptomatic, his ankles did as well. She also noted the Veteran's ankle pain could be spontaneous and precipitated by any prolonged weightbearing, which also caused pain in all the lower extremities and the low back. The Veteran also reported having intermittent swelling in the ankles and feet and felt that he had increased pain with repetitive use, however he did not know how long it would take before repetitive use increased the pain. The Veteran also reported that he would have pain when he had no use of the joints at all and that he had fatigue in the lower extremities, although he also reported he could walk one mile, stand for 20 minutes and sit for 20 minutes. The examiner concluded that no ankle disease was found and x-ray revealed fibulotalar region changes. She concluded that there was no evidence of an ankle or lumbar spine condition while the Veteran was in the military and no objective evidence of ankle or lumbar spine condition on present physical examination. Therefore, she found that it was not likely that the Veteran's present complaints in the ankles and low back were caused by or the result of his military service. An April 2009 VA outpatient treatment report reflects that the Veteran complained of right foot and ankle pain with prolonged weight bearing, was observed to have a low arch and was diagnosed with pes planus with symptomatic pronation of the right arch. VA outpatient treatment reports from July 2009 reflect that the Veteran had a motor vehicle accident on a cycle and hurt his left ankle. X-rays revealed a distal fibular linear nondisplaced fracture. In a September 2009 Joint Motion for Remand, both parties agreed that the December 2005 VA examination was deficient as a whole because the VA examiner failed to account for evidence which demonstrated diagnoses of the back and ankle condition during the claim stream that led to the decision on appeal. This Joint Motion was granted by an October 2009 Court Order. In an April 2010 VA examination, the Veteran reported having been seen multiple times in the military for his feet and ankles and stated he continued to have pain after discharge. He reported having bilateral ankle pain at the same time that his feet began to bother him and he was seen for his ankles and feet while on active duty. The Veteran stated his ankles hurt "all over." He was diagnosed with bilateral ankle tenosynovitis and there was no evidence of degenerative changes on x-ray. The examiner opined that, based on the evidence of record available, it was his opinion that the Veteran's current lumbar spine and ankle conditions were not related to the Veteran's military service. He also found that there was nothing in current orthopedic literature indicating that bilateral intrinsic knee conditions or bilateral pes planus would cause intrinsic conditions within the ankles. The examiner also found that he could not render an opinion regarding the bilateral ankle condition being secondary to the bilateral foot condition without resorting to mere speculation. He also concluded that the Veteran's current bilateral ankle condition was not secondary to the bilateral knee condition. Finally, he could not comment on whether his examination was the same or different to the previously mentioned examinations and it would be mere speculation to offer an opinion as to why an examination would be the same or different. The April 2010 VA examiner then furnished an addendum to his earlier examination and opinion in April 2010, finding that there was no evidence that the Veteran's bilateral pes planus or bilateral knee condition permanently aggravated or made worse the low back or ankle conditions. He explained that there was nothing in the orthopedic literature to indicate that pes planus or knee conditions would permanently aggravate or make worse the spine and ankle conditions. Therefore, the examiner opined that the Veteran's ankle and low back condition were not permanently aggravated or permanently made worse by the bilateral pes planus or bilateral knee conditions. Per a December 2010 request by the Board, a Veterans Health Administration (VHA) opinion was furnished in January 2011. In a four (4) page, single spaced report, a certified physician's assistant documented his review and analysis of all of the evidence in this case and ultimately opined that the Veteran did not have either an ankle condition or back condition that could be related to service. Specifically, he found that there was no current evidence of a bilateral ankle disability and that he had a current lumbar disability. The examiner essentially provided a cogent and supported assessment that the June 2002 diagnosis of arthritis of the feet and ankle with normal x-rays and the April 2010 diagnosis of tenosynovitis of the ankle without any objective evidence of such on examination, were untenable diagnoses. The examiner also reported that the Veteran's lumbar condition was not related to military service and was not caused or aggravated by the Veteran's service connected bilateral pes planus or chronic left or right knee strain. In so finding, the examiner provided an explanation for each finding based on evidence of record. Although the Board, in the June 2011 remand, found the January 2011 medical opinion to be very thorough and that it addressed all of the Board's December 2009 medical questions, the Board concluded that it was not sufficient upon which to adjudicate the Veteran's claims. Specifically, the Board observed that, after the physician's assistant discussed his review of the evidence in this case and provided his medical opinions, he noted on the last page of his report that due to inconsistencies in the record between the Veteran's examinations and diagnoses, it was his opinion that the Veteran should be reexamined by a qualified orthopedic examiner so that a complete history could be obtained from the Veteran and a full, complete physical examination performed. Subsequent to the completion of the foregoing, and after giving the new orthopedic examiner an opportunity to review the claims file, the physician's assistant essentially recommended that another medical opinion be obtained that addressed the medical questions in this case, to particularly include obtaining a clear diagnosis of the Veteran's orthopedic conditions based upon history, physical findings and x-ray findings. In response to the January 2011 medical expert opinion, Veteran's attorney submitted written argument in which he asserted that there were a number of serious flaws with the opinion; and as such, the opinion should be disregarded completely. In doing so, the attorney requested that the Board obtain another VHA or outside medical opinion and the Board remanded the claim for a new VA examination with opinions in June 2011. In December 2011 VA examinations of the ankles and spine, the Veteran was diagnosed with bilateral ankle pain. The Veteran reported that he had bilateral ankle pain for a long time and it seemed to be related to his pes planus problem. He reported that he was told by a podiatrist that his flat feet could cause bilateral ankle pain. The Veteran reported that arch supports seemed to help his ankles somewhat also. His medical history noted he had never been treated for ankle problems in the military but did sustain a left distal fibular linear fracture in 2009, diagnosed by VA x-ray and the Veteran wore a walking boot for a short time and the problem resolved. He also stated that when he was on his feet for a long time, especially on hard floors, his feet would swell and hurt and the pain and swelling would spread to his ankles, calves, knees and thighs and ultimately to his lower back. He did not wear ankle braces at the present time. The examiner opined that there was no current ankle disability. In his rationale, he explained that the Veteran had only one ankle diagnosis in his review of the records, and that was a small, linear, nondisplaced distal left fibular fracture in July 2009, diagnosed by x-ray, treated conservatively with a Cam walker boot for several weeks and the Veteran demonstrated no residual from that fracture at all. The examiner also noted that all other x-rays of the ankle had been normal and the current examination of his ankles revealed no swelling, tenderness, deformity, ankylosis or instability with full strength and range of motion bilaterally. Therefore, the examiner found that the Veteran's bilateral ankle disability was unsubstantiated by the current evaluation. In a September 2011 private medical report, the Veteran was seen for complaints of painful feet, arches and ankles and sometimes swelling and pain. X-rays were noted to have demonstrated a significant loss of joint space and spurring in the medial and lateral malleoli spurring bilaterally with no fracture at that time. The Veteran was assessed with degenerative joint changes and deterioration throughout the arches, toes and ankle. In response to the December 2011 VA examinations and medical opinions, the Veteran's attorney submitted written argument in January 2012, in which he asserted that there were again a number of serious flaws with the December 2011 VA opinion; and as such, the opinion was inadequate. A July 2012 addendum opinion was furnished by the December 2011 VA examiner in response to the Veteran's attorney's arguments. The examiner concluded that he firmly stood by his initial medical opinion that there was nothing wrong with the Veteran's ankles. He reported that the small linear fracture was completely healed on x-rays in 2010 and demonstrated no sequelae. With respect the various diagnoses referred to by the Veteran's attorney and made by the private physicians, the examiner found that this would have to be more clearly stated with supporting medical imaging in order for him to be able to comment on them and there were no medical provider references cited for these diagnoses. With regard to the final diagnosis of significant loss of joint space and spurring in the ankle joint, the VA examiner noted this statement was made in a clinical note by the private physician in September 2011 and he apparently was reading his own x-rays as there was no radiologist official report attached for verification of this statement. By contrast, the examiner found that the VA x-rays he had cited to himself in 2009 and 2010, were read by radiologists. The examiner reiterated his conclusion that he did not find any current pathology in the Veteran's ankles and that it was his medical opinion that the prior diagnoses were more likely either incorrect or exaggerated. He found that synovitis was detectable clinically by localized joint swelling, redness of the skin and discomfort and radiographic evidence of synovitis would only be found on a computerized tomography (CT) or magnetic resonance imaging (MRI). The examiner then opined that he did not believe the Veteran's ankle problems were caused by his flat feet, as flat feet were a minor medical problem, easily corrected by orthotics. He noted that pain was the only objective finding in the Veteran and it was therefore less likely than not that the Veteran's alleged ankle pain was secondary to his service-connected knee or flat foot condition, because the pain was so difficult to measure or quantify. With regard to the service-connected bipolar disorder, the examiner found that it was clinically plausible that the Veteran could suffer diffuse body aches and pains secondary to this condition, however, he was not a psychiatrist or clinical pathologist and would defer an opinion on that to other providers at this point in time. Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In considering the VA examiner's December 2011 examination and opinion and his July 2012 addendum opinion, the December 2005 and April 2010 VA examiners' findings and diagnoses and the private medical evidence of record indicating diagnoses of the bilateral ankle, including the July 1997, June 2002 and September 2011 private physicians' findings and diagnoses, the Board affords greater probative weight to the VA examiner's opinions furnished in December 2011 and July 2012. The Board observes that the December 2011 and July 2012 VA examiner's opinions were predicated upon a review of the claims file including, the lay statements by the Veteran, the service records, and private and VA medical records including the prior VA examinations. The December 2011 and July 2012 VA examiner also provided an extensive rationale to support his finding that the Veteran did not have a current bilateral ankle disability except for the fracture in July 2009 which had resolved thereafter, per the April 2010 x-ray reports. His rationale also noted the relevant findings in the post-service medical evidence, which included both private and VA medical records. The examiner also provided a well reasoned explanation as to why he found that synovitis was not a current ankle disability, noting that such was detectable clinically by localized joint swelling, redness of the skin and discomfort and radiographic evidence of synovitis would only be found on a computerized tomography (CT) or magnetic resonance imaging (MRI) and pointing out that the September 2011 private physician made this conclusion by reading his own x-rays rather than having a radiologist interpret them, which was not one of the ways that synovitis was objectively detectable. The Board finds the December 2011 and July 2012 VA examiner's conclusions are consistent with the evidence of record. It is also clear from the record evidence that the December 2011 and July 2012 VA examiner's review of the claims file and discussion of evidence in relation to his ultimate opinion was extensive and thorough and discussed any conflicting evidence and provided an adequate support for his conclusions, based on objective findings in the record. Finally, the objective medical evidence of record demonstrates that a bilateral ankle condition was not shown in service or for many years thereafter, until ankle pain was noted 1997 and ankle problems were treated following February 2000 and July 2009 motor vehicle accidents with no residual disability, thereby further supporting the December 2011 and July 2012 VA examiner's opinions. In fact, the June 2002 private medical report in which the Veteran was diagnosed with arthritis of the foot and ankle specifically noted that x-rays revealed no signs of soft tissue or osseous pathology and no radiographical changes such as osteoarthritis, dislocation or stress fracture. In addition, the December 2005 VA examiner found the Veteran had no current bilateral ankle disability despite noting that an x-ray revealed fibulotalar region changes. Likewise, the April 2010 VA examiner specifically found there was no evidence of degenerative changes on x-ray, thereby further supporting the December 2011 and July 2012 VA examiner's conclusion that the prior diagnoses related to the ankle disabilities were more likely either incorrect or exaggerated. Therefore, the Board affords little probative weight to the December 2005 and April 2010 VA examiners' diagnoses and opinions and the private medical evidence of record indicating diagnoses of the bilateral ankle, including the July 1997, June 2002 and September 2011 private physicians' findings and diagnoses and affords greater probative weight to the December 2011 and July 2012 VA examiner's opinions. After a review of the record, the Board concludes that entitlement to service connection for a bilateral ankle condition, to include as secondary to the service-connected disabilities of bilateral pes planus, chronic left knee strain and/or chronic right knee strain, is not warranted. In this regard, the Board finds that, while the Veteran had a left ankle sprain noted in February 2000 and left ankle fracture in July 2009 both as due to post-service motor vehicle accidents with no residual disability, there is no competent, credible, and probative objective evidence of a current bilateral ankle condition and the satisfactory lay and medical evidence of record does not demonstrate a nexus between either the left ankle sprain noted in February 2000 or left ankle fracture in July 2009 both as due to post-service motor vehicle accidents, and either his active service or his service-connected bilateral pes planus, chronic left knee strain and/or chronic right knee strain. Initially, the Board notes the Veteran's statements regarding his a continuity of bilateral ankle pain since active service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence). However, continuity of symptomatology under § 3.303(b) only applies to conditions that have been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). As noted, the VA examiner's opinions furnished in December 2011 and July 2012, found that the Veteran did not have a current bilateral ankle condition. The Board also acknowledges the lay statements by the Veteran that his claimed bilateral ankle condition is due to his active service and/or his service-connected disabilities, however, he is not competent to specify etiology of any bilateral ankle condition as this would constitute a medical conclusion which he is not competent to make. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (a lay person is not competent to render an opinion regarding the diagnosis or etiology of a disease or injury; however, a lay witness can provide and "eye-witness" account of the visible symptoms). As noted above, the Board has afforded greater probative weight to the December 2011 and July 2012 VA examiner's opinions and afforded little probative weight to the December 2005 and April 2010 VA examiners' findings and diagnoses as well as the private medical evidence indicating diagnoses of the bilateral ankles, including the June 2002 and September 2011 private physicians' findings and diagnoses. Therefore, the most probative evidence of record demonstrates that there is no objective medical evidence of a current bilateral ankle condition of record. In making this decision, the Board acknowledges that the Court has held that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 312 (2007). The Board has concluded that the satisfactory evidence of record clearly demonstrates that the Veteran does not have a current diagnosis of a bilateral ankle condition. While the Veteran was treated for and diagnosed with a left ankle sprain noted in February 2000 and left ankle fracture in July 2009, both were due to post-service motor vehicle accidents in February 2000 and July 2009 with no residual disability demonstrated after each. In addition, aside from the February 2000 and July 2009 motor vehicle accidents with left ankle injuries, the post-service medical evidence of record demonstrates that there is no evidence of complaints or treatment for the bilateral ankles in the medical record until June 1997 when the Veteran began seeking treatment for bilateral ankle pain, approximately 18 years after the Veteran's separation from active service, however, pain alone, without a diagnosed or identifiable underlying malady or condition does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). While the Board notes a July 1967 private medical report indicated a diagnosis of bilateral lateral ankle instability, the objective medical evidence of record does not demonstrate this finding recurrent or indicative of an ankle condition. Moreover, in the July 2012 VA examiner's opinion, which the Board has afforded greater probative weight than the private medical evidence indicating diagnoses of the bilateral ankles, the examiner did not find any current pathology in the Veteran's ankles and that it was his medical opinion that the prior diagnoses were more likely either incorrect or exaggerated. Therefore, with respect to the Veteran's attorney's requests for opinions regarding whether the Veteran's bilateral ankle symptoms, which consist of pain, are secondary to any other service-connected disabilities, without a diagnosed or identifiable underlying malady or condition of the bilateral ankles, such is not warranted. Id. In considering the Veteran's attorney's most recent argument, dated in December 2012, that the December 2011 and July 2012 VA examiner, in his July 2012 opinion dismissed the most recent x-ray findings of the September 2011 private physician without explanation. In fact, the VA examiner, in his July 2012 opinion, specified that synovitis was clinically detectable by localized joint swelling, redness of the skin and discomfort and that radiographic evidence of joint synovitis could only be found on CT or MRI, thereby explaining why the most recent x-rays would not provide objective evidence of synovitis. In addition, the VA examiner noted that the September 2011 private physician was apparently reading his own x-rays that no radiologist official report was attached and therefore his reading of the x-rays was not verified by a radiologist. The attorney also argued that the VA examiner conceded in the same opinion that synovitis would not show up on x-ray but would require a CT or MRI to detect, however in the absence of either, he found it was unclear how the VA examiner could find synovitis was not present. The Board observes however, that the VA examiner specified that synovitis was detectable by both objective findings of localized joint swelling, redness of the skin and discomfort as well as by radiographic evidence on a CT or MRI scan. In this case the examiner only found objective evidence of pain, and therefore as there were no objective findings of synovitis, his conclusion that the Veteran did not have synovitis was supported by the fact that there were no objective findings of synovitis. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. Finally, the satisfactory lay and medical evidence of record does not demonstrate a nexus between the diagnosed left ankle sprain noted in February 2000 or left ankle fracture in July 2009 both as due to post-service motor vehicle accidents, and either the Veteran's active service or his service-connected bilateral pes planus, chronic left knee strain and/or chronic right knee strain. In this regard, the Board observes that the private and VA medical records indicate that the Veteran sustained a left ankle sprain due to a motor vehicle accident in February 2000 and a left ankle fracture in July 2009 from a motor vehicle accident with no residual disability of either. In addition, the July 2012 VA examiner's addendum opinion noted that while the Veteran did not have a current bilateral ankle disability, he also did not believe the Veteran's ankle problems were caused by his flat feet, as flat feet were a minor medical problem, easily corrected by orthotics. The July 2012 VA examiner also noted that pain was the only objective finding and it was therefore less likely than not that the Veteran's alleged ankle pain was secondary to his service-connected knee or flat foot condition, because the pain was so difficult to measure or quantify. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a bilateral ankle condition, to include as secondary to the service-connected disabilities of bilateral pes planus, chronic left knee strain and/or chronic right knee strain, is denied. REMAND Although the Board regrets any further delay in adjudicating the Veteran's claim, pursuant to the duty to assist, the issue of service connection for a back condition, to include as secondary to the service-connected disabilities of bilateral pes planus, chronic left knee strain and/or chronic right knee strain, must be remanded for further development. In the Board's June 2011 remand, the Board remanded the Veteran's claim for service connection for a back condition, to include as secondary to the service-connected disabilities of bilateral pes planus, chronic left knee strain and/or chronic right knee strain, for a VA examination with an opinion. The Board instructed that the examination report must provide a complete rationale for all opinions and must reflect a review of the evidence, both medical evidence and lay evidence, to include the Veteran's statements. In a December 2011 VA examination, the VA examiner diagnosed the Veteran with lumbar degenerative joint disease and provided opinions as to whether his back condition was related to his active service or whether his back condition was caused or aggravated by his service-connected disabilities of bilateral pes planus, chronic left knee strain and/or chronic right knee strain. In providing his opinion regarding whether the Veteran's back condition was related to his active service, the examiner found that it was less likely than not that the Veteran's current lumbar spine disability was related to his military service. He explained in his rationale that the service treatment records contained no documentation of any treatment for low back pain and therefore his lumbar spine degenerative joint disease was not related to his military service. In February 2012, the VA examiner provided an addendum to his earlier opinion regarding the relationship of the Veteran's lumbar spine disability to his active service. He was asked to address the Veteran's contention that his back pain began during service and, assuming his report of in-service back pain was credible was it at least as likely as not that the current findings were related to his in-service back pain. The examiner found that the Veteran's report of low back pain was in 1979, which as 32 years ago, and to attempt to correlate present day x-ray findings of degenerative disc disease/degenerative joint disease of the lumbar spine with complaints of 32 years ago was unreasonable and medically unsound. He concluded that any patient over the age of 50 was going to have lumbar pathology on x-ray as a normal finding, which was attributable to normal aging of the spine. Therefore, he found it was less likely than not that the Veteran's current findings were related to in-service back pain. In response to the December 2011 and February 2012 VA examination and medical opinions, the Veteran's attorney submitted written argument in January 2012, in which he asserted that the VA examiner failed to address the Veteran's competent lay statements of a continuity of symptomatology since service; and as such, the opinion was inadequate. Once VA undertakes the effort to provide an examination with respect to a claim of entitlement to service connection, whether or not statutorily obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate when it contains clear conclusions with supporting data and a reasoned medical explanation or analysis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, in considering that it does not appear that the VA examiner considered the Veteran's lay statements of a continuity of symptoms per the Board's previous remand instructions, the case must be remanded for additional development to include a supplemental medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 U.S.C.A. § 5103A (West 2002). Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for the claims file to be forwarded to the VA examiner who last provided the February 2012 VA opinion regarding the back condition, or, if this examiner is not available, the claims file should be forwarded to a similar specialist, to review the claims file. The claims file, to include a copy of this remand, must be made available prior to completion of the evaluation. The examiner must annotate the examination report to indicate review of pertinent evidence in the claims file. (Please note the Veteran's lay statements of a continuity of symptoms since service are competent evidence). The examiner is then asked, to furnish an opinion with respect to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed back condition: (i) had its onset during his period of active duty from August 1966 to August 1968; or, (ii) that such disorder was caused by any incident or event that occurred during such period. Please explain the reasons for any opinions rendered and include a discussion of the relevant evidence. In particular, the examiner is asked to address the Veteran's competent lay statements of a continuity of symptoms since his active service in the rationale. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 2. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the RO should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 3. After the requested development has been completed, the RO should readjudicate the merits of the Veteran's claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his attorney (or representative), if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs