Citation Nr: 1335467 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-16 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for right ankle injury and arthritis, to include as secondary to service-connected right knee osteoarthritis. 2. Entitlement to service connection for right hip condition as secondary to service-connected right knee osteoarthritis. REPRESENTATION Appellant represented by: Michael Viterna, Attorney ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. A right ankle disorder did not onset in service, right ankle arthritis was not manifest within a year of service, a current right ankle disorder is not causally related to service and was not caused or aggravated by service-connected right knee osteoarthritis. 2. A current right hip condition was not caused or aggravated by service-connected right knee osteoarthritis. CONCLUSIONS OF LAW 1. The criteria for service connection for right ankle injury and arthritis, to include as secondary to service-connected right knee osteoarthritis, have not been met. 38 U.S.C.A. §§ 1110, 1112 (West 2002) 38 C.F.R. §§ 3.303, 3.310 (2013). 2. The criteria for service connection for a right hip condition as secondary to service-connected right knee osteoarthritis, have not been met. 38 U.S.C.A. §§ 1110, 1112 (West 2002) 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify was satisfied via a letter sent to the Veteran in December 2009. The duty to assist has also been satisfied. VA has obtained the Veteran's service treatment records, VA medical records and private treatment records identified by the appellant as relevant to the appeal. The Veteran was also afforded a VA examination in June 2010. The VA examination is adequate, as it included a review of the claims folder and treatment records, considered the Veteran's statements and provided explanations for the opinions stated. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Veteran has not identified any other relevant evidence that has not been requested or obtained. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by presenting evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307, (ii) present manifestations of the same chronic disease, and (iii) evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Id. Arthritis is listed as a chronic disease. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran has been granted service connection for right knee osteoarthritis, evaluated as 0 percent disabling. III. History The Veteran asserts that service connection is warranted for right ankle injury residuals with arthritis, and a right hip condition. In a January 2010 statement, the Veteran stated that he injured his right ankle in basic training in April 1967 and that his ankle has bothered him since then. The Veteran indicated that X-rays were taken and that he received a physical profile for his ankle in 1968. He also alleges that his right ankle and right hip conditions are secondary to his service-connected right knee osteoarthritis. The Veteran's service treatment records indicate that the Veteran presented in May 1967 with pain and soreness in both knees and a blister on the back of his right heel. The examiner prescribed mole skin. Aside from the May 1967 blister, the Veteran's available service treatment records are negative for complaints or findings pertaining to the right ankle. The Veteran's service treatment records are silent for complaints pertaining to the right hip. A physical profile dated March 1968 indicates that the Veteran was given a physical profile of duty with limitations for 90 days because of an injured right knee. Another physical profile dated August 1968 indicates that the Veteran was given a physical profile of temporarily restricted duty for 90 days because of arthritis of the right knee. The only radiographic reports in the Veteran's service treatment records are of his right knee and chest. The report of a medical history given by the Veteran upon separation from service shows that he checked a box indicating a history of foot trouble, but it was noted that this pertained to having flat feet. No ankle problems were noted. The Veteran denied having lameness, arthritis, a history of broken bones (other than his pelvis which reportedly occurred prior to service and which no longer caused problems). The Veteran also denied having swollen or painful joints, and bone or joint deformity. The separation medical examination report dated in January 1969 shows that clinical evaluations of the lower extremities and feet were normal. Post-service VA treatment records dated June 2008 indicate that the Veteran complained of pain in both knees and feet. The Veteran indicated that he has had pain in his knees and feet for years and has been using an herbal extract for the pain. The Veteran's post-service treatment records are silent for complaints of a right hip condition. On VA examination in June 2010, the examiner noted no constitutional symptoms or incapacitating episodes of arthritis. The examiner reported that the Veteran had an antalgic gait and noted that the Veteran has pes planus with approximately 5% valgus angulation. The examiner also noted pain, stiffness, weakness, swelling and tenderness of the right ankle. The examiner indicated that the Veteran's right ankle pops and cracks on movement. Both ankles were evaluated for degenerative changes; small plantar calcaneal spurs and early degenerative changes at the tibiotalar joints were noted from X-rays of both ankles. The examiner diagnosed the Veteran with degenerative joint disease of the right ankle. On examination of the Veteran's right hip, the examiner noted pain, stiffness, weakness, and tenderness. The examiner indicated that the Veteran's right hip pops and cracks with movement. Both hips were evaluated for degenerative changes. X-rays showed no evidence of a displaced hip fracture but showed mild degenerative changes of his bilateral hips. Enthesopathy was noted at the greater trochanter in bilateral hips. The examiner diagnosed the Veteran with degenerative joint disease of the right hip. The examiner opined that the Veteran's right ankle and right hip conditions are less likely as not caused by or a result of his service-connected right knee condition. The examiner explained that X-rays showed symmetrical degenerative changes in the Veteran's ankle and hip joints with no indication that his right side was receiving more strain. The examiner also indicated that the Veteran's hip and ankle complaints are likely related to aging degenerative changes. IV. Direct Service Connection The Veteran has a current diagnosis of degenerative joint disease of the right ankle. For service connection to be warranted on a direct basis, the Veteran must also have an in-service injury and link between the Veteran's current diagnosis and the in-service event. The Veteran stated that he injured his right ankle in basic training, that an X-ray was taken of his ankle, and that he received a physical profile in 1968 because of his ankle injury. However, the Veteran's service treatment records indicate that the Veteran was treated for a right knee injury in May 1967. X-rays were taken and the Veteran received a physical profile in March and August of 1968 because of a right knee injury. The Veteran's service treatment records do not mention a right ankle injury and there is no right ankle X-ray. The Board notes that the Veteran's right knee injury is already service-connected. The Veteran also indicated in statements from June 2012 and June 2011that he reported to sick call on numerous occasions because of his ankle and hip. Although the Veteran's service treatment records are silent of complaints of right ankle, the Veteran is competent to report symptoms capable of lay observation such as injury or pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, during his January 1969 separation examination, which was more contemporaneous to his service than his more recent statements, the Veteran's feet and lower extremities were found to be normal and the Veteran himself reported that he did not then have, nor has he had, swollen or painful joints, or a bone, joint, or other deformity and that his health was good. And during the June 2010 VA examination, the Veteran indicated that his right hip and ankle conditions onset 20 years ago, more than 20 years after his separation from service. The Veteran also reported no history of trauma to his hip or ankle joints. Based on the Veteran's inconsistent statements regarding his hip and ankle conditions, the Board finds the Veteran to be an inaccurate historian regarding the onset of his hip and ankle condition and gives it little probative weight. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). The Board gives more probative weight to the Veteran's service treatment records and separation examination, which do not document an in-service injury to the Veteran's right hip or ankle, and even affirmatively show that on separation medical history and examination no such problems were present. Without an in-service injury or disease, service connection cannot be established on a direct basis. V. Secondary Service Connection For the Veteran's secondary service connection claims for his right ankle and hip conditions, the June 2010 examiner diagnosed the Veteran with degenerative joint disease of the right hip and right ankle. However, the examiner indicated that the Veteran's current condition was not caused or aggravated by the Veteran's service-connected right knee condition. The examiner explained that the Veteran's antalgic gait with genu varum is causing biomechanical strain on all of his joints, with no indication that his right side is receiving more strain than his left side. In his substantive appeal, the Veteran's representative argued that the examiner was a Board-Certified Advanced Practice Nurse and that she may not have been qualified to conduct the VA examination and provide a medical specialty opinion. However, the Federal Circuit has held that "any challenge 'to the expertise of a VA expert' must set forth the specific reasons why the litigant concludes that the expert is not qualified to give an opinion." Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010). The Court explained that requiring specific reasons to challenge a VA examiner's expertise is necessary because "[u]nless there is such particularization, the trier of facts is unable to evaluate and determine the validity of the challenge to the expert's qualifications." Id. Here, merely alleging that a nurse practitioner may not be qualified to give an opinion does not amount to specific reasons to challenge the VA examiner's qualifications. VA satisfied its duty to assist when it provided a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions, whether that is a doctor, nurse practitioner, or physician's assistant. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). The Board may assume a VA medical examiner is competent. Id.; Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009). The Veteran's representative has not provided a persuasive argument that the June 2010 VA examination and opinion from a nurse practitioner were inaccurate or flawed. The VA nurse practitioner was fully qualified to provide the negative nexus opinion and no probative evidence suggests that she was not competent to perform the required examination. There is no reason to deem the examination inadequate, and the VA examination report reveals that the examiner interviewed the Veteran and discussed the Veteran's reported history of injury and treatment. X-rays of the Veteran's ankles and hips were reviewed and interpreted by radiology physicians. The VA nurse practitioner's opinion was thorough, supported by an explanation, based on a review of the claims folder, and supported by the evidence of record. The Board finds this opinion is entitled to great probative weight. The Veteran's representative also argued that during the March 2010 VA right knee examination, the examiner indicated that the Veteran had an abnormal shoe wear pattern on his right shoe and that this finding is indicative of over-compensation. However, the June 2010 examiner indicated that the Veteran's right foot has pes planus with approximately 5% valgus angulation, which could also explain the Veteran's abnormal shoe wear pattern. The Veteran's representative also cited the conclusion of a September 2005 study that indicates that "gait changes appear to be initiated before heel strike and this not only affects the load distribution between the medial and lateral compartments of the knee, but also leads to increased axial loading rates at all joints of the lower extremity. More rapidly increasing joint forces may lead to a more rapid progression of existing [osteoarthritis] and to the initiation of [osteoarthritis] at joints adjacent to the knee." However, the Veteran's representative did not submit a copy of the study for Board consideration in its entirety. But even assuming that the cited study applies to the Veteran's current condition, the VA examiner noted that the Veteran's antalgic gait causes strain on all of his joints and that there was no indication that the Veteran's right side is receiving more strain than his left side. Even accepting the conclusion of the study, there is no evidence of record that the Veteran's joints on his right side are receiving more strain than his left side. The Veteran has offered his own opinion on etiology, stating that he currently has ankle pain and arthritis related to his active service, either on a direct basis or secondary to his service-connected right knee condition. The Veteran also contends that his service-connected right knee condition caused his right hip pain. The Board acknowledges that the Veteran is competent to describe his symptoms of pain without any specialized knowledge or training. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). However, as a layperson, the Veteran is not competent to diagnose such pain as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the absence of evidence that a right ankle condition or right hip condition was incurred in service, is causally related to service, or was caused or aggravated by the Veteran's service-connected right knee osteoarthritis, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for a right ankle injury and arthritis, including as secondary to the Veteran's service-connected right knee osteoarthritis, and service connection for a right hip condition secondary to the Veteran's service-connected right knee osteoarthritis is not warranted. ORDER Entitlement to service connection for a right ankle injury and arthritis, including as secondary to service-connected right knee osteoarthritis, is denied. Entitlement to service connection for right hip condition secondary to service-connected right knee osteoarthritis is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs