Citation Nr: 1318020 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-05 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a right ankle disability, to include as secondary to a left ankle disability. 3. Entitlement to service connection for a bilateral knee disability, to include as secondary to an ankle disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from November 1976 to January 1979. This matter comes before the Board of Veterans Appeals' (Board) on appeal from an April 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The case has subsequently been transferred to the St. Paul, Minnesota RO. The Board must discuss all theories of entitlement raised by the Veteran or by the evidence of record. Robinson v. Mansfield, 21 Vet. App. 545 (2008). Accordingly, the right ankle and knee claims have been recharacterized as noted on the title page to reflect the theory of secondary service connection. In September 2010, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). In November 2012, the Board remanded the case so that a VA examination could be scheduled. There has been substantial compliance with the November 2012 Remand Order. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. A left ankle disability did not have its clinical onset in service and is not otherwise related to active duty. 2. A right ankle disability did not have its clinical onset in service and is not otherwise related to active duty. 3. A bilateral knee disability did not have its clinical onset in service and is not otherwise related to active duty, and arthritis was not exhibited within the first post service year. CONCLUSIONS OF LAW 1. A left ankle disability was not incurred or aggravated during active duty service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. A right ankle disability was not incurred or aggravated during active duty service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. A bilateral knee disability was not incurred or aggravated in service, and degenerative joint disease of the knees may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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; and (3) that the claimant is expected to provide. 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). Here, a letter dated in October 2007 complied with VA's duty to notify the Veteran with regards to the service connection issues addressed herein. Specifically, this correspondence apprised the Veteran of what the evidence must show to establish entitlement to the benefit, 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 letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the Board finds that VA has complied with its duty to assist the Veteran in the development of her claim, to include substantial compliance with the November 2012 Board Remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). VA has obtained service treatment records (STRs). The Board acknowledges the Veteran's argument that her STRs are incomplete. However, this argument is made with respect to treatment she received for shin splints, an issue that is not currently before the Board. She has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration. See 38 C.F.R. § 3.159 (c) (2). The Board notes that the Veteran reportedly obtained treatment for her claimed conditions between her 1979 discharge and 2010 (the first evidence of post-service treatment). See September 2012 Letter. However, she has indicated that these records are no longer available. See Hearing Transcript at 9; December 2012 Letter. Therefore, in view of the foregoing, the Board concludes that further efforts to locate any private treatment records would be futile. Additionally, the Veteran was afforded physical examinations in March 2008 and February 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the March 2008 and February 2012 examinations, when considered together, are adequate. The examiners fully examined the Veteran, thoroughly reviewed the claims file, and answered the questions posed by the AOJ. The Veteran was provided an opportunity to set forth her contentions during the hearing before the undersigned VLJ in September 2012. In Bryant v. Shinseki, 23 Vet. App. 488, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the September 2012 hearing, the VLJ identified the issues on appeal. Testimony was solicited regarding the Veteran's ankles and knees. The hearing discussion did not reveal any evidence that might be available that had not been submitted. The Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim for benefits. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues in appellate status. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for any condition listed in 38 C.F.R. § 3.303(b). Any condition not encompassed by Section 3.303 (b) requires a medical nexus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Arthritis is a chronic disease for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran believes that her currently diagnosed ankle disabilities resulted from in-service injuries. Her representative has stated that she continued to suffer from left ankle problems after service. See Hearing Transcript at 5. Alternatively, she maintains that her right ankle and bilateral knee disabilities are related to her left ankle disability. STRs reflect that, in July 1977, the Veteran injured her right thigh after bumping into a locker. Upon examination, it was noted that her right knee was within normal limits. On February 8, 1978, the Veteran was treated for left ankle pain after twisting it two weeks earlier. No edema or discoloration was noted. Range of motion was good with mild pain at the extreme ends. There was mild pain with pressure to the Achilles tendon. The assessment was ligament strain. She received a one-week profile. Three weeks later the Veteran was treated for re-occuring left ankle pain. She complained of intermittent sharp pain that radiated up the back of her calf. The impression was strain. Continued hot soaks and whirlpools were prescribed. An examination conducted one week later showed mild edema around the Achilles tendon, with no pain on palpation or during range of motion. The assessment was mild strain, left ankle. Continued use of the whirlpool was recommended. At a follow-up visit on March 15, 1978, the Veteran reported that the pain had become worse with prolonged standing and walking. There was little tenderness on palpation, little to no swelling, and full range of motion. The Veteran received a one-week profile. The doctor prescribed an ace bandage or well supporting boots, moderate exercise, and hot soaks. A January 1979 separation examination contains a normal clinical evaluation of the lower extremities and feet. During a March 2008 VA examination, the Veteran reported that she had been diagnosed with Achilles tendonitis during service, and that since discharge the pain had continued to move up to her knees and hips. She complained of intermittent dull bilateral ankle pain and constant dull and shooting bilateral knee pain. The Veteran worked as a certified nursing assistant and was able to stand for up to one hour. Glucosamine helped the pain somewhat. Upon examination, no constitutional symptoms of arthritis were noted. X-rays showed a small plantar calcaneal spur and minimal calcification of the distal Achilles tendon in both ankles. X-rays of the knees showed minimal degenerative changes involving the medial and patellofemoral joint compartments. The examiner reviewed the claims file and opined that it is less likely as not that the Veteran's current bilateral ankle and knee disability is a result of her service. She noted that the left ankle sprain sustained by the Veteran during service is "typically a self-limiting condition." She also noted that the X-rays findings were not clinically significant. The examiner also concluded that since there was no altered gait upon examination she "would not expect aggravation of the knees . . . secondary to an ankle condition." Private treatment records dated in January 2009 show that the Veteran reported a long history of problems with her lower extremities that she associated with her service. She stated that she was diagnosed with Achilles tendonitis and ligament problems with her knees during service. She complained of chronic iliotibial band tightness. She also complained that her left ankle was "intermittently bothersome" and that her Achilles tendon "sort of locks up." The Veteran felt that her gait was "somewhat altered." She also reported two falls in the past year. Examination of the left foot revealed no soft tissue swelling, no significant areas of tenderness, and no pain with palpation of the Achilles tendon. Examination of the left knee revealed no crepitus, good range of motion, and mild swelling over the iliotibial band insertion. The assessment included left iliotibial band tightness and possible problems with the left foot. The doctor referred the Veteran to a podiatrist later that day. The Veteran complained of Achilles tendon pain when getting up from a sitting position or driving for long periods of time. She reported left ankle "catching" on a daily basis, after which she could not move her foot until it released. She also complained of pain along the iliotibial band and knee. Physical examination revealed some tenderness with palpation to the lateral ankle in the anterior aspect, as well as palpable spurring off the anterolateral ankle. There was crepitus, catching, or clicking with range of motion. There was decreased ankle joint dorsiflexion with the knee extended. There was tenderness to palpation of the Achilles tendon starting approximately 3 cm above its insertion site. Mild leg edema was noted. X-rays showed no evidence of any loose bodies or other osseous deformities. The assessment included Achilles tendonitis, ankle pain, and gastroc equinus. The doctor prescribed custom orthotics for the Achilles tendon and ankle pain. He recommended an MRI if the orthotics did not alleviate the ankle pain. An August 2012 private treatment record from Dr. R.V.B. showed that the Veteran reportedly was diagnosed with Achilles tendonitis and "question of ligamentous injury" during service. She complained of pain and cramping over the lateral aspect of both legs, left greater than right, usually at night. The orthotics had helped somewhat. No limp was noted upon examination. Knees had symmetrical range of motion with hyperextension bilaterally to 12 -15 degrees. There was no excessive collateral cruciate laxity. Patellofemoral motion was reasonable. There was a Q-angle greater than 10 degrees. McMurray's testing was negative. There was some patellofemoral discomfort with compression and quad firing. There was no specific tenderness over the ankles and no effusion. There was possible mild tenderness over the posterior tibial tendon on the left. The doctor reviewed the STRs, the 2008 VA examination report, and the January 2009 private treatment records. He diagnosed "patellofemoral dysfunction and the foot posture and strain as described by the podiatrist." He wrote: "It would appear that her on-going condition may well be related to a somewhat generalized ligamentous laxity." He opined that the Veteran's on-going complaints "are more likely" due to her identified physical findings as opposed to a specific incident during service. However, the doctor noted that service activities "may have been expected to precipitate or aggravate her complaints relative to her physical findings of today, assuming that they did exist at that point in time." During her September 2012 hearing, the Veteran indicated that she was not sure if she was treated for right ankle problems during service. Her representative stated that the Veteran has continued to have left ankle problems since discharge. As instructed by the September 2012 Remand, the Veteran underwent a VA examination in February 2013. With respect to the left ankle, she complained an achy, dull, sharp pain every day that radiated to the lower leg. She reported flare-ups 1-2 times per month lasting for weeks. The pain was aggravated by overdoing it and was alleviated by stretching. She did not wear inserts. The Veteran reported that she saw her family doctor in 1979, but was "pushed aside." Physical examination of both ankles was normal. The examiner opined that the claimed left ankle condition was less likely than not incurred in or caused by the in-service injury. She thoroughly reviewed the claims file and noted a one-month history of pain complaints with respect to the left ankle during service. She found no documentation of a chronic knee or ankle condition. She further noted that the claimed ankle condition was diagnosed in 2009, many years after the Veteran's discharge. With respect to the knees, the Veteran denied any injuries. She complained of pain on the outside and tenderness on the inside of the left knee cap, and pain in the inner portion of the right knee. She reported flare-ups 1-2 times per month. The pain was aggravated by being too tired, sleeping too much, or standing too much. It was alleviated with heat and ice and staying off her knees. She reportedly was told in either the 1980's or 1990's that the ligaments in the left ankle had damaged her knee ligaments. Flexion was to 125 degrees bilaterally. The rest of the examination was normal. The examiner opined that the Veteran's knee disabilities were less likely than not incurred in or caused by the in-service injury. She thoroughly reviewed the claims file and found no documentation of a knee condition during service. She noted that the first documentation of a knee condition was in 2008, many years after the Veteran's discharge. She also noted a history of "intervening interceding " falls in 2009 with documented injuries. As the evidence of record fails to establish any clinical manifestations of any knee arthritis within the applicable time period, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. With respect to service connection on a nonpresumptive basis, the objective record shows no orthopedic injury to the Veteran's right ankle or knees during service. There is no indication of any right ankle or knee pain during service. The 1979 examination did not demonstrate any knee or right ankle pathology. The first documented medical report of ankle or knee disabilities came in March 2008, nearly 30 years following the Veteran's separation from active duty. With respect to negative evidence, the fact that there were no records of any complaints or treatment involving the Veteran's ankles and knees for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). The Veteran claims that she had bilateral ankle problems in service and that they continued to present. However, there is no indication of right ankle problems in the service treatment records. Physical examination at service discharge revealed normal feet and lower extremities. The left ankle problems in service were treated conservatively and as one VA examiner indicated, appeared to be self limiting. The Veteran claims treatment for pertinent disability over the years but that the records are unavailable. The Board does not find the Veteran's recent recall of remote events convincing; her recollection of right ankle problems in service is not supported by any objective evidence. In light of these factors, the Veteran's current statements to the effect that she has experienced continuous left ankle symptomatology since active service, while competent, are not deemed to be credible. The absence of documented treatment is found to be more probative than the Veteran's unconvincing statements. Accordingly, continuity of symptomatology is not established by either clinical evidence or the Veteran's own statements. With regard to the medical opinions of record, where the Board is presented with conflicting medical evidence, it is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Wensch v. Principi, 15 Vet. App. 362, 36 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In some cases, the physician's special qualifications or expertise in the relevant medical specialty or lack thereof may be a factor. In every case, the Board must support its conclusion with an adequate statement of its reasoning of why it found one medical opinion more persuasive than the other. Dr. R.V.B. and the VA examiners each addressed the Veteran's contentions of how she incurred her ankle and knee disabilities. Each also reviewed the medical history with respect to the ankles and knees since discharge from active service. Each clinician addressed the current diagnoses referable to the Veteran's ankles and knees. However, Dr. R.V.B.'s opinion is speculative in nature. A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). He merely opined that the Veteran's service "may have" precipitated the Veteran's ankle and knee problems assuming they existed at that point in time. In contrast, the March 2008 and February 2013 VA examiners opined that the Veteran's ankle and knee disabilities are not related to service. They conducted a review of the claims file, discussed the evidence, and examined the Veteran. The February 2013 VA examiner specifically considered Dr. R.V.B.'s opinion and provided a rationale for her opinion. There is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. Therefore, these opinions, when considered together, are highly probative. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (the opinion of a physician that is based on a review of the entire record is of greater probative value than an opinion based solely on the veteran's reported history). The Veteran contends that her discharge examination was inadequate. Specifically, she maintains that the clinical evaluation of her feet and legs was normal because she was six months pregnant at the time and had not been running. See Hearing Transcript at 5. She also complains that no X-rays were taken at that time due to her pregnancy. Id. The Board notes that while the discharge examination report does not indicate that the Veteran was pregnant at the time, she weighed about 20 pounds more at service discharge than at entry. Assuming the Veteran was pregnant upon discharge, this alone does not render her examination inadequate. The clinician was able to physically examine the Veteran and assess the condition of her lower extremities and feet. Furthermore, X-rays of extremities are not routinely conducted upon separation. If she was having continuous joint problems at the time, it would seem that they could be more symptomatic if the Veteran weighed more than usual. The Veteran genuinely believes that her ankle and knee disabilities were incurred in service. Her statements regarding the symptoms of pain are credible and ultimately competent, regardless of the lack of contemporaneous medical evidence. While the Veteran is a registered nurse and has some medical expertise, she is not shown to have the ability to diagnose and determine the etiology of orthopedic diseases. Even if her opinion was entitled to be accorded some probative value, it is far outweighed by the opinion of the March 2008 and February 2013 VA examiners who thoroughly reviewed the claim file, to include the STRs, and found it unlikely that the Veteran's ankle and knee disabilities are related to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Because service connection has not been granted for an ankle disability, any further consideration of the issues of entitlement to secondary service connection for a right ankle or bilateral knee disability is moot. The preponderance of the evidence is against the service connection claims for right and left ankle disabilities and a bilateral knee disability; there is no doubt to be resolved; and service connection is not warranted. Gilbert, 1 Vet. App. at 57-58. ORDER Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a bilateral knee disability is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs