Citation Nr: 1318786	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  05-14 459A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a bilateral ankle disorder.

2.  Entitlement to service connection for a bilateral knee disorder. 

3.  Entitlement to service connection for a bilateral leg disorder.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran 



ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1979 to October 1982 and from June 1985 to March 1988.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which in pertinent part, denied service connection for a bilateral leg disorder on a direct basis and for bilateral knee and ankle disorders on direct and secondary bases.  Subsequent May 2005 statement of the case (SOC) and June 2007, May 2010, and March 2012 supplemental statements of the case (SSOC) denied the claims on appeal on a direct basis. 

In November 2007, the Veteran testified at a Board hearing held before the undersigned Veterans Law Judge in St. Petersburg, Florida.  A copy of the transcript is of record. 

In a February 2009 decision, the Board, in pertinent part, reopened the issue of service connection for a bilateral knee disorder and remanded the issues of service connection for bilateral knee, ankle, and leg disorders.  The case was returned to the Board, and in a November 2010 decision, the Board remanded the claims for additional development and adjudicative action.  The case has been returned to the Board for further appellate review.

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.  

The issue of service connection for a bilateral leg disorder as secondary to the service-connected lumbar spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1.  All relevant evidence necessary to decide the issues of service connection for bilateral ankle disorder and bilateral knee disorder, both to include as secondary to the service-connected lumbar spine disability, and for bilateral leg disorder has been obtained.

2.  While in service, the Veteran made 44 parachute jumps between March 1980 and October 1982 during service with the Army's 82nd Airborne Division and sustained a motor vehicle accident in October 1980.

3.  The Veteran did not have a chronic bilateral ankle or knee arthritic disorder in service or during the presumptive period. 

4.  Symptoms of a chronic bilateral ankle or knee arthritic disorder have not been continuous since separation from service.

5.  The current bilateral ankle and knee disorders are not related to service and did not manifest to a compensable degree within one year of separation from service.

6.  The current bilateral ankle and knee disorders are not causally related to or aggravated by service-connected lumbar spine disability.  

7.  A bilateral leg disorder was not diagnosed while the Veteran was in service, and a current bilateral leg disorder is not shown. 



CONCLUSIONS OF LAW

1.  The criteria for service connection for a bilateral ankle disorder, to include as secondary to service-connected lumbar spine disability, have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a), 3.310 (2012). 

2.  The criteria for service connection for a bilateral knee disorder, to include as secondary to service-connected lumbar spine disability, have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a), 3.310 (2012). 

3.  The criteria for direct service connection for a bilateral leg disorder have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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).  VA 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 the claimant is expected to provide.

The Board finds that the VCAA notice requirements have been satisfied by October 2003 and March 2004 letters.  In these letters, VA informed the Veteran that in order to substantiate a claim for service connection on a direct basis, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions.  

As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency.  These letters also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals.  Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA.

The Board notes that the May 2005 SOC and June 2007 SSOC included a citation to 38 C.F.R. § 3.310, informing the Veteran of the criteria needed to establish service connection on a secondary basis.

The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, the June 2007 SSOC included the type of evidence necessary to establish a disability rating and effective date.  Although this notice was not issued before the June 2004 rating decision on appeal, the Veteran has not been prejudiced, as the claim was readjudicated in May 2010 and March 2012 SSOC.  See Prickett v. Nicholson, 20 Vet. App. 370 (2006).   

Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In connection with the claims on appeal, the evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, VA examination reports dated November 1999, April 2004, April 2007, October 2009, and January 2011, Veterans Health Administration (VHA) opinions dated August 2012 and January 2013, and a September 2012 VHA clarification opinion.  The Board notes that the VHA opinions and clarification, collectively, are probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

Pursuant to the Board's February 2009 remand instructions, the RO arranged for a VA examination and medical opinion in October 2009.  The claims were readjudicated in a May 2010 SSOC.  In the November 2010 remand, the Board determined the October 2009 VA medical opinion is inadequate.  Pursuant to the remand instructions, the RO arranged for the examiner who rendered the October 2009 VA medical opinion to provide a January 2011 addendum.  That addendum reflects that the physician rendered a conclusion with sufficient rationale.  The claims were readjudicated in a March 2012 SSOC.  Subsequently, August 2012 and January 2013 VHA medical opinions and a September 2012 VHA clarification were obtained and associated with the record.  These opinions and clarification, collectively, reflect that the physicians rendered conclusions with sufficient rationale in response to the specific questions asked by the Board.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes); see also Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions).  The Board finds that VA's duty to assist is met.   

For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal.  The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained.  Therefore, no further assistance to the Veteran with the development of evidence is required.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

Service Connection Laws and Regulations

Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service.  It may be granting by affirmatively showing inception or aggravation during service.  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

Service connection can also be established through application of statutory presumptions, including for chronic diseases, such as arthritis, when manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309.  

Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  When the fact of chronicity in service (or during the presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim.  The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As will be discussed below, the showing of a chronic bilateral ankle or knee arthritic disorder during service or in the one-year presumptive period is not adequately supported and the evidence of record does not indicate a finding of a continuity of symptomatology for bilateral ankle and knee arthritic disorders since discharge from service.     

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability.  See 38 C.F.R. § 3.310(a) (2012).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  Id.; see Harder v. Brown, 5 Vet. App. 183, 187 (1993).  The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability.  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  See 38 C.F.R. § 3.310(b) (2012); Allen v. Brown, 7 Vet. App. 439, 448 (1995); Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).

In making all determinations, the Board must consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed, Cir. 2007).

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.   See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

With regard to all the claims on appeal, the Veteran contends that his chronic ankle, knee, and leg disorders were incurred as the result of trauma associated his multiple in-service parachute jumps.  Specifically, he testified at the November 2007 Board hearing that, as a paratrooper, he completed almost 750 jumps between 1979 and 1982, and every single military jump he performed was considered a combat equipment jump with full gear consisting of rucksack, weapon, helmet, and other necessities for the mission.  The Veteran also informed the October 2009 VA examiner of his belief that the ankle, knee, and leg problems are the result of repeated trauma from so many jumps.


Analysis of Service Connection for Bilateral Ankle and Knee Disorders 

The evidentiary record shows a current diagnosis of arthritis of the ankles, noted as degenerative joint disease in an April 2004 VA examination report.  He was also diagnosed with bilateral ankle sprain as documented in an October 2009 VA examination report.  With regard to a current diagnosis of arthritis of the knees, the evidentiary record shows degenerative joint disease in an April 2004 VA examination report and osteoarthritis in an April 1989 VA outpatient treatment record.  He was also diagnosed with left lateral meniscus tear and right medial meniscus tear as documented in an October 2009 VA examination report.  The evidentiary record shows diagnosis of bilateral chondromalacia patella (patellofemoral syndrome), as documented in November 1999 and October 2009 VA examination reports.  The criteria of a current disability is met.  

On the question of an in-service injury or disease, service personnel records document the Veteran made 44 parachute jumps between March 1980 and October 1982 during service with the Army's 82nd Airborne Division and sustained a motor vehicle accident in October 1980.  The service treatment records are also silent as to any complaints, treatment, or diagnosis of an ankle or knee disorder. 

In spite of the Veteran's documented in-service parachute jumps and motor vehicle accident, the Board finds that the weight of the evidence demonstrates that the Veteran did not have a chronic bilateral ankle or knee arthritic disorder in service or during the presumptive period nor have symptoms of a chronic bilateral ankle or knee arthritic disorder been continuous since separation from service.  

As noted above, the Veteran's service treatment records are silent as to any complaints, treatment, or diagnoses of arthritis of the ankles and knees.  At the November 2007 Board hearing, the Veteran stated he did not seek treatment for any complaints of the ankles or knees while in service.


The Board acknowledges that in a June 2010 VA Form 21-4138 the Veteran asserted he has had treatment for the claimed disorders at the time of his "crash and burn" parachute incident at Fort Bragg, North Carolina and ever since.  The Board finds the Veteran's assertion of a continuity of treatment for symptomatology since separation from service is not credible because, in contrast, he informed the October 2009 VA examiner that he had 759 jumps during service and that he began having bilateral ankle and knee pain approximately 10 years ago, which dates back to 1999.  He further explained that he did not develop ankle and knee pain as a result of any particular injury and the pain did not come until years later.  These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service.  See Madden v. Gober, 125 F.3d 1477, 1481 (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding the Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service).  

Moreover, the Board finds the Veteran's current bilateral ankle and knee arthritic disorders did not manifest to a compensable degree within one year of separation from service.  As noted above, the Veteran was diagnosed with degenerative joint disease of the bilateral ankles and knees, per x-ray findings of degenerative changes, at the April 2004 VA examination, which is multiple years after separation from service.  Although the April 1989 VA outpatient treatment record noted a diagnosis of osteoarthritis of the knees, this diagnosis was not supported by x-ray findings of arthritis in the knees.  As a result, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against these claims for service connection on a presumptive basis as due to a chronic disease.  See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a).

Furthermore, the weight of the evidence demonstrates the Veteran's currently diagnosed bilateral ankle and knee disorders are not related to service, to include the parachute jumps and motor vehicle accident.

A November 1999 VA examiner opined that based on the Veteran's history of multiple parachute jumps, it was as likely as not that the Veteran's current knee disorders could be directly related to jumping activities in the Army.  The Board finds this opinion is not probative because medical evidence that is speculative, general or inconclusive in nature cannot support a claim.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  A physician's statement framed in terms such as "may" or "could" is not probative.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993).

Following an April 2004 VA examination for the spine and joints, the Veteran was diagnosed, in pertinent part, with bilateral ankle and knee mild degenerative joint disease with minimal radiographic evidence about the clinical symptoms consistent with these diagnoses.  The examiner opined that these conditions are "likely not related to [the Veteran's] service and his career of jumps, as this type of activity does produce heavy stress to the joints, and it is conceivable that the arthrosis has started through this activity."  The Board finds this opinion is not adequate as it is not clear whether the examiner was providing a positive or negative opinion.

As a result, the Veteran underwent an additional VA examination in April 2007.  Following a physical evaluation and review of the Veteran's claims file and medical records, the VA examiner rendered diagnoses of bilateral knee and ankle arthrosis.  It was opined that: 

	[T]here is no clear medical/orthopedic diagnosis other than painful arthrosis 	of [the] knees and ankles.  There is no radiographic evidence of degenerative 	arthritis or other problems.  The clinical examination did not reveal any 	significant problems.  I am sure that the Veteran's jumps had some impact on 	his joints, but other than some seemingly mild pain, the Veteran has no other 	positive findings that would lead to a formal diagnosis for the purpose of 	service connection.

The Board finds this opinion is not probative because, as discussed above, a review of the medical evidence of record shows there are multiple diagnoses of degenerative joint disease for both ankles and both knees.  See e.g., April 2004 x-ray reports.  As a result, the April 2007 VA medical opinion is based on an inaccurate factual history, thus lacks probative value.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate factual premise has no probative value).

Pursuant to February 2009 Board remand instructions, an October 2009 VA examination report and medical opinion were provided to the Veteran in connection with these claims on appeal.  The examiner noted review of the claims file and computerized patient record system (CPRS) records and diagnosed the Veteran with bilateral ankle strain, left lateral meniscus tear, and right medial meniscus tear.  The examiner opined "[i]t is less likely as not that the Veteran's bilateral knee [and] ankle . . . disorders are a direct result of a disease or injury in service."  It was explained that "[t]he Veteran states that he did not start having knee or ankle problems until ten years after service.  Thus, there are many other possible causes of knee and ankle pain.  I cannot assume that the Veteran has knee and ankle pain based solely on the fact that he jumped out an airplane 759 times." 

The Board finds the October 2009 VA medical opinion is inadequate for the following reasons.  Although the examiner purported to provide rationale for the opinion concerning the Veteran's knees and ankles, the rationale was conclusory.  For example, the examiner did not explain what "many other possible causes" there were for the Veteran's knee and ankle pain, particularly in light of the Veteran's hearing testimony that he did only office-type work after service.  The examiner did not explain why the degenerative changes that were noted in the Veteran's ankles and knees several years after service were not related to service.  The examiner did not explain why he "cannot assume that the Veteran has ankle and knee pain based solely on the fact that he jumped out of an airplane 759 times."  Additionally, the examination report and opinion did not take into account the November 1999, April 2004, and April 2007 VA examination reports, as specifically requested in the February 2009 Board remand instructions in an effort to clarify the previous unclear and conflicting opinions.   

Pursuant to November 2010 Board remand instructions, a January 2011 VA medical opinion was provided.  The VA physician noted review of the Veteran's claims file, to include service personnel records and service treatment records, as well as objective medical data and medical literature, and opined:

	There remains no objective documentation that the knee or ankle conditions 	are caused by military service.  The earliest documentation that the knee or 	ankle problem is a bilateral x-ray of 2004 showing mild degenerative 	changes, 16 years following military service.  To resolve the question of 	whether knee or ankle problems is the result of military service, without 	objective documentation of knee or ankle problems during the military or in 	the year or years immediately following military service would require that  	I resort to speculation.

The Court has held that when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability.  Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010).  In this case, the January 2011 VA physician explained that he cannot provide an opinion in this case because there is no objective documentation of knee or ankle problems during military service or within the years immediately following service.  The Board finds the VA physician's statement, while adequate, lacks probative value for this claim due to the absence of an opinion regarding the cause of the Veteran's bilateral ankle and knee disorders.  

In a July 2012 request for a VHA opinion, the Board, in pertinent part, asked whether the bilateral ankle and knee disorders are as likely as not etiologically related to the documented in-service parachute jumps and/or motor vehicle accident and/or otherwise related to service.  In an August 2012 VHA opinion, Dr. D. M. reported "I see no medical evidence of any serv[ice] related injury or series of activities to support what is most likely age related degenerative arthritis. . . . [and] It is highly unlikely that repeated jumps caused any ankle condition, without a fracture.  Even athletes with recurrent sprains are not prone to degenerative arthritis."

Pursuant to a September 2012 request for a VHA clarification opinion, the Board asked Dr. D. M. to, in pertinent part, provide (1) further rationale that takes into account the 2004 opinion that the stress to the joints from the parachute jumps could lead to arthrosis and (2) indicate whether it is as likely as not that the Veteran's chronic bilateral knee and ankle disabilities are etiologically related to the in-service motor vehicle accident.  In a September 2012 VHA clarification opinion, Dr. D. M. concluded "I can see no rationale or scientific basis for the 2004 opinion.  The 1980 accident did not cause the back problem.  Nothing in the chart supports any knee injury.  For ankle complaints see above."   

In a January 2013 VHA opinion, Dr. B. G. stated that he is a board-certified orthopedic surgeon, reviewed the Veteran's claims file, and provided a summary of the relevant documents of record.  Dr. B. G. made the following pertinent conclusion with regard to the Veteran's bilateral ankle and knee disorders:
	
	I believe to a reasonable degree of medical and surgical certainty (more 	likely than not), that the patient's conditions of his knees and ankles are not 	related to the parachute injury or history of jumps.  There was no evidence of 	lower extremity injuries during his career as a parachutist per my review.  An 	injury significant to cause or accelerate an arthritis condition or other cause 	of pain presenting at a late time point in the lower extremities would likely 	have been documented as causing a lower extremity injury at some point.  	There is no medical evidence of any traumatic incident in the lower 	extremities such as a ligament strain/sprain or a fracture from this time 	period.  Additionally, he apparently recovered enough after an alleged jump 	injury in 1981 to continue jumping until 1982 and he claimed he was running 	during one of his interviews after this report.

Collectively, the Board finds these VHA opinions are the most probative evidence of record and weigh against a finding that the Veteran's bilateral ankle and knee disorders are related to service.  A comprehensive review of the claims file was completed and the opinions addressed the etiology of these disorders with sufficient rationale on an accurate factual history.  See Nieves-Rodriguez, 22 Vet. App. at 295.

Based on the evidence of record, the weight of the competent and probative evidence demonstrates no relationship between the Veteran's currently diagnosed bilateral ankle and knee disorders, and his period of active service, including no competent or probative evidence of a nexus to the in-service parachute jumps or motor vehicle accident.  As a result, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against these claims for service connection on a direct basis.   

Next, the Board considers whether the Veteran's bilateral ankle and knee disorders are related to his service-connected lumbosacral strain disability.  Specifically, the Veteran made such an assertion in a July 1999 VA Form 21-4138 for the bilateral knee disorder and the Board requested such development in the July 2012 VHA opinion request.  

The Board notes that the RO denied these claims on a secondary basis in the June 2004 rating decision, the Veteran has current bilateral ankle and knee disorders, as discussed above, and the RO granted service connection for lumbosacral strain in a February 1983 rating decision.  Nonetheless, the Board finds that the weight of the evidence demonstrates the current bilateral ankle and knee disorders are not causally related to or aggravated by service-connected lumbosacral strain disability.

In an August 2012 VHA opinion, Dr. D. M. opined "[t]here is no known connection between lumbar strain and any ankle condition."  With regard to the question regarding the etiology of the Veteran's bilateral knee disorders to the service-connected lumbosacral strain, he opined "[the Veteran's] lumbar disc syndrome may give symptom referred to [the] legs, but there is no evidence this can cause or exacerbate a bone condition." 

Pursuant to a September 2012 request for a VHA clarification opinion, the Board asked Dr. D. M. to indicate if the ankle disabilities increased in severity beyond their natural progression due to the service-connected lumbosacral strain.  In a September 2012 VHA clarification opinion, Dr. D. M. concluded "[n]o medical relationship."  In a January 2013 VHA opinion, Dr. B. G. opined "[t]he ankle conditions that the [Veteran] has are degenerative in nature.  These did not increase in severity beyond their natural progression due to the Veteran's lumbosacral strain with degenerative changes.  There is no medical evidence that a lumbar condition causes lower extremity degenerative changes."  

Based on the evidence of record, the weight of the competent and probative evidence demonstrates no causal relationship between the Veteran's currently diagnosed bilateral ankle and knee disorders, and his service-connected lumbosacral strain, or aggravation of the service-connected lumbosacral strain and the bilateral ankle and knee disorders.  As a result, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claims for service connection for bilateral ankle and knee disorders on a secondary basis.

Analysis of Service Connection for a Bilateral Leg Disorder 

The analysis above applies to any knee and ankle disorders, which are clearly part of the legs.  The analysis below considers whether there is a bilateral leg disorder other than that affecting the ankles and knees.  

The Board notes that review of the evidentiary record shows treatment records reflect the Veteran's complaints of leg pain separate and apart from knee and ankle pain since 1989.  For instance, a VA examiner in June 1989 noted the Veteran's report that his back pain radiated into both legs and that his legs would become weak.

The 1999 and 2004 VA examinations for the spine and joints showed no diagnosis or opinion with regard to the Veteran's legs, other than the knees and ankles already discussed above.

Following the October 2009 VA examination and review of the Veteran's claims file and CPRS records, the examiner stated that "for the leg condition, I see no [magnetic resonance imaging] MRI evidence of radiculopathy from the MRI in 2005.  The Veteran did have leg pain at the time of that MRI which indicates that radiculopathy was not likely the cause of the Veteran's leg pain."

Again, the Board finds the October 2009 VA medical opinion is inadequate because the examiner did not indicate whether the leg pain was a manifestation of a disorder other than radiculopathy or whether any such other disorder was related to an injury or disease in service.  

In a July 2012 request for a VHA opinion, the Board, in pertinent part, asked whether the Veteran has a separate and distinct chronic bilateral leg disorder.  If so, it is as likely as not that the identified disability is etiologically related to the documented in-service parachute jumps and/or motor vehicle accident and/or otherwise related to service.  In an August 2012 VHA opinion, Dr. D. M. reported, with regard to this specific request, that "[the Veteran's] lumbar spine complaints are most likely due to his October 1980 documented motor vehicle accident."   

Pursuant to a September 2012 request for a VHA clarification opinion, the Board asked Dr. D. M. to, in pertinent part, comply with the specified July 2012 request for a VHA opinion regarding the bilateral leg disorder.  In a September 2012 VHA clarification opinion, Dr. D. M. stated "[n]o, this leg complaint may be referred pain.  Spine disorder is not a separate disorder."

In a January 2013 VHA opinion, Dr. B. G. stated that he is a board-certified orthopedic surgeon, reviewed the Veteran's claims file, and provided a summary of the relevant documents of record.  Dr. B. G. made the following pertinent conclusion with regard to the Veteran's leg disorder:
	
	I do not believe that [the Veteran] has a separate and distinct chronic bilateral 	leg disorder . . . I believe to a reasonable degree of medical and surgical 	certainty (probability of more than 50 percent) that his leg conditions are not 	related to his parachute jumps or 1980 motor vehicle accident or are 	otherwise related to service. 

Based on the evidence of record, the weight of the competent and probative evidence demonstrates diagnosed bilateral leg disorder, other than conditions affecting the ankles and knees, which are analyzed separately.  Despite his complaints of leg pain, the medical evidence does not show diagnosis of a leg disorder to account for his complaints.  As a result, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection on a direct basis.   

With regard to all the claims on appeal, the Board acknowledges the Veteran is competent to report symptoms that he experiences at any time regarding this disorder on appeal because this requires personal knowledge as it comes through the use of his senses.  See Layno, 6 Vet. App. at 470.  He is not, however, competent and with the appropriate medical training and expertise to offer an opinion on a medical matter, including the etiology of his bilateral ankle, knee, and leg disorders.  See Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  The questions of causation, in this case, involve complex medical issues that the Veteran is not competent to address.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claims for service connection for bilateral ankle, knee, and leg disorders, and these claims must be denied.  Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 


ORDER

Service connection for a bilateral ankle disorder, to include as secondary to the service-connected lumbar spine disability, is denied.

Service connection for a bilateral knee disorder, to include as secondary to the service-connected lumbar spine disability, is denied. 

Service connection for a bilateral leg disorder is denied on a direct basis.


REMAND

A remand is required for the issue of service connection for a bilateral leg disorder as secondary to the service-connected lumbar spine disability.  In a March 2012 statement, via a VA Form 21-4138, the Veteran noted he has radiating pain in his legs and no one has bothered to address that it could very well be related to his service-connected back injury.  Thus, he clarified that he is claiming the bilateral leg disorder as secondary to his service-connected back injury and the bilateral leg disorder that he is addressing refers to radiating pain.  

Throughout the development of this claim, the RO has failed to address this issue on a secondary basis in the June 2004 rating decision, May 2005 statement of the case (SOC), and subsequent supplemental statements of the case (SSOC) dated June 2007, May 2010, and March 2012.  Upon the filing of a claim for benefits, VA generally must investigate the reasonably apparent and potential causes of a veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing.  See Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (characterizing Schroeder as holding that "the duty to assist applies to the entire claim, which might require assistance in developing more than one theory in support of that claim").

Accordingly, the issue of service connection for a bilateral leg disorder as secondary to the service-connected lumbar spine disability is REMANDED for the following action:
	
The issue of service connection for a bilateral leg disorder should be readjudicated on a secondary basis to the service-connected lumbar spine disability.  If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto.

The Veteran and representative have the right to submit additional evidence and argument on the matter 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 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).



____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2012).



Department of Veterans Affairs