Citation Nr: 1325710 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 09-16 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for right ankle and/or leg disability, secondary to service connected left ankle disability. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from September 1970 to September 1972. These matters come before the Board of Veterans' Appeals (Board) from February and May 2008 rating decisions from the Department of Veterans Affairs (VA), Regional Office (RO) in Lincoln, Nebraska. In June 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of this hearing was prepared and associated with the claims file. The Board notes that the instant matter was previously before the Board in February 2011, at which time it was remanded for further development. Upon completion of the requested development, the agency of original jurisdiction (AOJ) readjudicated the Veteran's service connection claim via a June 2011 supplemental statement of the case (SSOC) and denied that claim on the merits. The case was returned to the Board in August 2011, after which the Veteran obtained new representation. As will be discussed in further detail below, the Board is satisfied that the terms of its prior remand have been complied with; thus, it may proceed with a decision at this time. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran does not have a disability or the right ankle or leg that has been caused or aggravated by his service-connected left ankle disability. CONCLUSION OF LAW The Veteran does not have a right ankle and/or right leg disability that is caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.310, 3.159 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, the Veteran was apprised of VA's duties to both notify and assist through correspondence dated in February 2008. Specifically, the notification to the Veteran apprised him of what the evidence must show to establish entitlement to service connection on a secondary basis, 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 notice also included the criteria for assigning a disability rating and an effective date as required by Dingess, supra. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the February 2008 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim of secondary service connection for a right ankle disability. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board is satisfied that the duty to assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his service treatment records (STRs), VA treatment records, a VA examination and opinion reports, private medical records, and statements from the Veteran, to include his June 2010 hearing testimony. The Veteran has also been afforded several VA examinations in connection with his claim for service connection for a right ankle disability, secondary to his service-connected left ankle disability. A review of the examination reports reveal that the examiners reviewed the claims folder and considered the lay contentions of the Veteran before rendering an opinion as to the likelihood that the Veteran's diagnosed right ankle disability was caused or aggravated by his service-connected left ankle disability. Further, in compliance with the terms of the Board's February 2011 remand, an orthopedist reviewed the claims folder in March 2011, to specifically include the conflicting private and VA medical opinions, and set forth his opinion regarding causation and/or aggravation of the Veteran's right ankle disability. The Board notes that although the examiner indicated that it would be only with resort to mere speculation to be able to opine whether or not the Veteran's right ankle disability was caused or aggravated by his left ankle disability, the examiner then went on to state that it was less likely as not that the Veteran's left ankle sprain had caused his right ankle disability and that there was no basis for a finding of aggravation. The examination report contains a basis for his opinion in this regard, and it discusses the contrary evidence of record. The examiner explained why the evidence was against an association between the Veteran's current right ankle disability and his service-connected left ankle disability and the Board finds that the examination report, along with the other evidence of record, allows for the Board's evaluation of the Veteran's claim to be a fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (describing adequacy of medical examinations). The Board is thus satisfied that the March 2011 examination report is adequate and also complies with the terms of the Board's prior remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl and Stegall, both supra. II. Analysis In the instant case, the Veteran is seeking service connection for a disability of the right ankle and/or right leg, which he asserts is related to his service-connected let ankle disability. Notably, the Veteran does not contend, nor does the evidence so indicate, that any right ankle/right leg disability is directly related to service. As such, the Board's analysis of the Veteran's claim will be limited to theory of secondary service connection. In this regard, the Veteran's asserts that because of his left ankle instability, he has fallen on numerous occasions, the most serious of which occurred in January 2008 resulting in a compound fracture of his right leg and ankle. The law provides that service connection may be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West. 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability may be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2012). Evidence relevant to the issue of secondary service connection shows that in January 2008, the Veteran was seen in the emergency room after falling in his home. It was noted that he had sustained a distal right tibial/fibular fracture for which he underwent an intramedullary rodding, right leg tibia, and a percutaneous plate fixation, lateral malleolus, right ankle. X-rays of the right ankle and right tibia taken at the first follow-up appointing showed a varus alignment and the Veteran's private physician P. C., M.D., noted that the Veteran was also complaining of chronic left ankle instability but that examination of the left ankle revealed no unusual findings and x-rays were unremarkable. In support of his claim, the Veteran also submitted the report of an October 2007 magnetic resonance imaging (MRI) scan that showed mild increased signal intensity at the anterior talofibular ligament and thinning near the talus, consistent with a partial tear. There was no evidence of a full thickness tear and the calcaneofibular ligament was not well demonstrated, which indicate that it was either small or chronically torn. The Veteran was afforded a VA examination in March 2008 to determine the likelihood that the Veteran's right ankle/leg condition was related to his service-connected left ankle disability. Upon examination of the Veteran and review of the evidence of record, the VA examiner stated it could not be determined whether the Veteran's right ankle/leg condition was related to his left ankle disability and requested an orthopedic consultation. The VA examiner explained that [the Veteran's] [left] ankle MRI report illicits [sic] reasoning only for chronic strains and nothing acute. Additionally the new records from [Dr. P. C.] do not state anywhere of his fall due solely to his [left] ankle condition. Hence, this examiner then questions the nature of his falls and whether it [is] due to his alcoholism and/or compliance of his ankle conditions. His compliance is in question as he is a chronic alcoholic and smoker, yet he is conditioning to smoke after his rod placement in his [right] ankle and he is not using his crutches, walking with full weight bearing on his own accord, and he is [driving] with a short leg case on his leg! He originally told this examiner that he [could not] drive, yet, later confessed that he drove himself to his visit today! . . . Nowhere in the records he submitted did it state that he fell due to his [left] ankle condition. The VA examiner concluded additional information was needed to formulate an opinion and a specialist's opinion was therefore requested. That same month, the Veteran was examined by a VA orthopedist who, upon examination of the Veteran, which specifically included examination of the left ankle, and consideration of the evidence of record, provided the following assessment and opinion: [The Veteran] has very little in the way of residual symptoms of his initial service-connected left ankle sprain, including no current indication of instability of the left ankle and very weak MRI evidence of current ankle issues. Further, it is the opinion of this examiner that the [V]eteran's right ankle and leg issues are not a result of his service-connected left ankle sprain. The [V]eteran has no clinical evidence of instability to suggest that his left ankle as, at the time or is currently, a cause of other musculoskeletal issues. By rating action dated in May 2008, the Veteran was denied service connection for a right leg/right ankle disability. The Veteran disagreed with the decision and in January 2009, the examiner who provided the first March 2008 VA examination again reviewed the Veteran's claims folder, to include the evidence associated with it since the initial report was rendered, and provided the following statement: [T]he initial opinion stands as valid and reasonable. Even though records were obtained from Midlands and [the Veteran] reported his [left] ankle gave out, as seen by [previous VA examinations], MRI reports, gait, and compliance issues, it is less likely as not . . . that the [V]eteran's [right] ankle [fracture] is caused by his [service connected] [left] ankle sprain. There are more contributing factors regarding his fall such as his tall lengthy body stature (73 inches), eye issues (cataract and presbyopia), alcohol dependence issues, compliance and safety issues as seen in notes from Midlands by Dr. [P. C.] and driving to the exam with a cast on his [right] ankle (driving foot) with no assistive walking devices. In September 2009, Dr. P. C. submitted a letter stating that the Veteran was under his care for a right ankle injury, having injured his right ankle in January 2008 at which time the Veteran reported that his injury was "secondary to an instability episode that occurred to his left ankle." Dr. P. C. noted that x-rays taken in September 2009 showed the Veteran's right ankle had completely healing at the fracture site. The Veteran had full range of motion and there was no evidence of swelling or tenderness. Dr. P. C. opined that "[b]ased on the history after the original injury it does appear that the accident to the right ankle is at least as likely as not to be attributed to the previous left ankle instability pattern. An ankle give-way can lead to a traumatic event such as a fall and the resulting right ankle fracture." In June 2010, the Veteran testified at a Board hearing, during which he asserted that his left ankle would often give out, causing him to fall. The Veteran denied falling on account of intoxication. As to right leg and ankle symptomatology, the Veteran reported swelling and tightness, and stated that overcompensating caused him to limp. Upon remand from the Board, the Veteran was provided with another VA examination to assess the likelihood that his service-connected left ankle disability had caused of aggravated any right ankle or right leg disability. In March 2011, a VA examiner reviewed the claims folder and interviewed and examined the Veteran, noting the Veteran's assertions of his left ankle giving way and complaints of right ankle weakness. The Veteran indicated having fallen twice in the past month, which he attributed to his left ankle. X-rays showed a normal left ankle and an old distal tibia-fibula fracture of the right ankle with internal fixation of right tibia with fracture of transversing screw. The Veteran was provided a second VA examination that same month. The Veteran related a history of his left ankle giving way. Physical examination of the left ankle, to include anterior and posterior drawer tests, demonstrated no ligamentous laxity and inversion and eversion revealed no significant abnormality of ligamentous laxity. There was mild tenderness to palpation over the anterior tibiofibular ligament, but the Veteran was otherwise neurovascularly intact. There were no alignment deformities of the left ankle or foot and his range of motion was recorded to be from 0 to 30 degrees. The Veteran's right ankle demonstrated a mild to moderate varus deformity. The examiner reviewed the medical evidence of record, to specifically include that of Dr. P. C., and ultimately concluded that it was less likely than not the Veteran's right ankle disability, characterized as status-post operative fixation for distal tibia and fibula fractures, was caused or aggravated by his service-connected left ankle disability. The examiner noted that due to the Veteran's non-compliance with treatment recommendations after his 2008 right ankle fracture, he has a recurrent deformity of the right ankle. The examiner stated that there was no significant instability of the left ankle and, as such, it would difficult to attribute such a severe fall and resulting severe injury, to a very undetectable instability on examination of the lateral ligaments. The examiner discussed the MRI findings of record, but opined that it was unlikely that an incomplete tear of the tibiofibular ligament could lead to such a pattern of instability to cause the Veteran's fall and subsequent fracture of the contralateral distal tibia and fibula. The examiner then referenced other possible causes for the Veteran's fall, as discussed in the previous VA examination reports, and also found that there was no evidence to support a finding of aggravation. In consideration of the above, the Board finds that the preponderance of the evidence is against a finding of service connection for a disability of the right ankle and/or right leg, claimed to be secondary to his service-connected left ankle disability. This is so because the probative evidence of record does not support a finding that the Veteran's right ankle fracture was caused by his left ankle disability, does is there any disability of the right ankle or leg that has been aggravated by the left ankle disability. Notably, despite the Veteran's assertions of giving way and instability of the left ankle, the objective evidence of record fails to demonstrate left ankle instability. Indeed, none of the objective tests utilized to reveal evidence of instability were positive and no VA clinician found evidence of left ankle instability sufficient to cause the type of fall that would led to the Veteran's right ankle fracture. As explained by the second physician who examined the Veteran in March 2011, the 2007 MRI findings did not support a pattern of instability and the evidence was suggestive of other causes for the Veteran's fall. In this regard, the Board notes that an August 2006 VA examination report noted the Veteran's complaints of left ankle instability and showed slight laxity, but indicated that the Veteran's problems with alcohol were contributing to his complaint of falling. In sum, the Board finds probative the VA examiners' conclusions that the Veteran's left ankle disability was not the cause of his fall resulting in his 2008 fracture. As to the private medical evidence of record, the Board notes that in his September 2009 letter, Dr. P. C. stated that, at the time of the 2008 injury, the Veteran "did report a right leg injury that was secondary to an instability episode that occurred to his left ankle." Thus, Dr. P. C. merely recorded the Veteran's assertion that his left ankle instability was the cause of his fall. With regard to his opinion that the Veteran's right ankle fracture was the result of left ankle instability, Dr. P. C. provided no specific rationale for that opinion other than to state that an "ankle give-way can lead to a traumatic event such as a fall and the resulting right ankle fracture." While this certainly may be true, Dr. P. C. provides no evidence of left ankle instability at the time of the initial injury, and no evidence of left ankle instability is recorded in the private treatment records dated at the time of the injury or follow-up therefor. The Board acknowledges that there are no reasons or bases requirements imposed on a medical examiner, Ardison v. Brown, 6 Vet. App. 405, 407 (1994); however, the standards of adequacy for private and VA medical opinions are the same and to be adequate, an opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, the Board finds the VA examiners' findings more probative than Dr. P. C.'s opinion, as it is clear that the VA examiners' negative opinions regarding causation were based on the medical evidence of record and their opinions are supported by a detailed a rationale. Concerning the question of aggravation, the March 2011 VA examiner stated the there was no basis upon which the find aggravation of the Veteran's right ankle due his service-connected left ankle disability. Although that opinion is lacking somewhat in rationale, as stated above, an examiner is required only to consider all of the relevant evidence before forming an opinion and support his or her opinion with an analysis that the Board can consider and weigh against contrary opinions. Stefl, supra. In the instant case, there is no indication that the clinician failed to consider any piece of relevant evidence before providing the opinion regarding aggravation. The Board also finds no reason to discount the medical opinions based on the clinician's expertise and qualifications as a medical professional. Further, there is no medical evidence in the record to suggest aggravation and Dr. P. C. has not indicated aggravation of the Veteran's right ankle. Thus, given the absence of contrary medical evidence in this case, the Board need not weigh the VA examiner's opinion against other evidence. To the extent that the Veteran believes that his right ankle and/or right leg disability has been chronically worsened due to his left ankle disability, the etiology of dysfunctions and disorders is generally a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Here, the Veteran, as a lay person without the appropriate medical training and expertise, is not competent to make such a conclusion, especially in light of the VA examiner's conclusions to the contrary. See Jandreau, supra. As such, the Board finds that the lack of a more detailed rationale does not render either of the opinion obtained in this case inadequate. For the foregoing reasons, the Board finds that the claim of service connection for a right ankle and/or right leg disability must be denied. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting service connection for a right ankle and/or right leg disability under the theory advanced by the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for right ankle and/or leg disability, claimed secondary to service connected left ankle disability, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs