Citation Nr: 1335603 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-45 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the left ankle. 2. Entitlement to service connection for bilateral knee disorders. 3. Entitlement to service connection for a lumbosacral spine disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from April 1965 to October 1968. This case comes to the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2012, a videoconference Board hearing was held before the undersigned. In January 2013, the Board reopened previously denied claims for service connection for bilateral knee and lumbosacral spine disorders, and remanded those issues for development and consideration on the merits. In addition, at the same time, the Board remanded the issue of entitlement to an increased rating for degenerative arthritis of the left ankle. The Veteran has not asserted, and the record does not otherwise show, that he is unemployable due solely to service-connected left ankle arthritis; therefore, the Board finds that a claim for a total disability rating based on individual unemployability (TDIU) has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDINGS OF FACT 1. Degenerative arthritis of the left ankle is manifested by eversion deformity on physical examination, with significant deformities on X-ray, an antalgic gait, slight subluxation, and ankylosis. 2. Bilateral knee disabilities, to include arthritis, were first manifested more than one year after service and is not related to in-service events. 3. Bilateral knee disabilities are not proximately due to, or the result of, or aggravated by, service-connected left ankle arthritis. 4. A lumbosacral spine disability, to include arthritis, was first manifested more than one year after service and is not related to in-service events, including back complaints shown in service. 5. A lumbosacral spine disability is not proximately due to, or the result of, or aggravated by, service-connected left ankle arthritis. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 40 percent for degenerative arthritis of the left ankle disability, with ankylosis, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5270 (2012). 2. Bilateral knee disabilities were not incurred in or aggravated by service, or due to or aggravated by service-connected disability, nor may service incurrence be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 3. A lumbosacral spine disability was not incurred in or aggravated by service, or due to or aggravated by service-connected disability, nor may service incurrence be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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). In a letter dated in November 2007, the RO advised the claimant of information necessary to substantiate the claims on appeal. He was advised of various types of lay, medical, and employment evidence that could substantiate his claims. The Veteran was also provided with information regarding ratings and effective dates. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a letter dated in February 2009, the RO provided more detailed information concerning the information necessary to substantiate the increased rating claim on appeal. The Veteran was informed the Veteran that in order for an increased rating to be granted, evidence must show the condition had become worse. The Veteran was also informed that a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon the Veteran's employment. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Although this letter was not sent until after the initial adjudication of the claim, it was followed by readjudication and the issuance of a supplemental statement of the case in June 2011. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Hence, the VCAA notice requirements have been satisfied. VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). The Veteran's service treatment records have been obtained, as have VA and other treatment records adequately identified by the Veteran. VA examinations were provided in March 2013 and May 2013, pursuant to the January 2013 Board remand; those examinations, in conjunction with the other evidence of record, describe the disabilities in sufficient detail for the Board to make an informed decision as to the issue decided herein. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There is no evidence indicating that there has been a material change in the service-connected disorder since the last examination. 38 C.F.R. § 3.327(a). When conducting a hearing, a VLJ must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2012). Here, at the October 2012 hearing, the undersigned VLJ discussed the elements required for the Veteran's claims, and elicited additional information concerning his relevant medical history. His appeal was remanded for further action based, in part, on his testimony. Pursuant to the January 2013 Board remand, additional VA treatment records were obtained, and the Veteran was afforded the VA examinations cited above, which satisfied the remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Rating-Left Ankle Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. See 38 C.F.R. § 4.2 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Veteran contends that his left ankle disability has increased in severity, and that he now requires a cane to ambulate. Service treatment records show that in March 1968, he was seen 10 hours after having jumped from a pick-up bed and twisted his left ankle inward. He had pain nat both malleoli, and marked swelling at the lateral malleolus. X-rays disclosed there had been no fracture. The impression was sprain of the left ankle, which was treated with an ace bandage, crutches for 5 days, and light duty for 10 days, as well as with medication. He was to be seen in one week, but canceled the appointment. Several days later, he was seen for follow-up and noted to be doing well. No further mention was made of the ankle during service, including on the separation examination. Service connection was granted in a May 2003 rating decision, based on a March 2003 VA examination, which concluded that although the Veteran's moderately severe degenerative arthritis of the left ankle was largely related to his large size, obesity, and deconditioning, it was as likely as not that it was at least partially related to the in-service ankle sprain. X-rays of the left ankle in January 2003 showed advanced degenerative changes with posttraumatic deformities. X-rays of the left ankle in April 2004 showed posttraumatic and moderate degenerative changes. The current claim for an increased rating was filed in October 2007. On a VA examination in December 2007, the Veteran complained of intermittent weakness, intermittent stiffness, swelling with activity, giving way, and fatigability in the left knee. He did not complain of lack of endurance, locking, or dislocation. He had pain 6 times per day, lasting 2 hours each time. It was relieved by the medication Motrin. On examination, the Veteran was 73 inches tall and weighed 334 pounds. His gait was abnormal, with a limp to the left leg. He required a cane or ambulation to keep pressure of the ankle. On examination, of the left ankle, there was tenderness, guarding of movement, and slight subluxation. There was no weakness. There was an eversion deformity, but no dorsiflexion, plantar flexion, or inversion deformity. On examination, range of motion in the left ankle was to 10 degrees of plantar flexion (normal 45 degrees); and to 10 degrees of dorsiflexion (extension) (normal 20 degrees). Ankle function was limited by pain after repetitive use, although there was no additional limitation of motion. There was no indication of a malunion of the os calcis or astralgus. The diagnosis was degenerative arthritis of the left ankle, with slight subluxation and eversion deformity, subjectively by history of ankle arthritis, a and objectively by tenderness, guarding, slight subluxation, abnormal gait, and limitation of motion shown on examination. VA treatment records show, in June 2012, chronic ankle pain, worse with movement, was reported. He was noted to ambulate with a cane, and had limited left ankle range of motion due to an old injury. On a VA examination in May 2013, the Veteran was diagnosed as having left ankle arthritis. He said he had significant pain when weight-bearing and used a crutch to take off the weight. He experienced flare-ups manifested by swelling and more pain. He took hydrocodone for the pain. On examination, range of motion in the left ankle was to 15 degrees of plantar flexion (normal 45 degrees); and to 0 degrees of dorsiflexion (extension) (normal 20 degrees). He was able to perform 3 repetitions, which did not result in additional limitation of motion. The Veteran had functional impairment consisting of less movement than normal, "incoordination, impaired ability to execute skilled movements smoothly," pain on movement, swelling, and deformity, disturbance of locomotion, or interference with sitting, standing, and weight-bearing. Strength in the left ankle was 4/5, as compared to 5/5 in the right ankle. There was no laxity of the joint. He had ankylosis of the ankle in plantar flexion, less than 30 degrees, in a good weight-bearing position. He used a cane for ambulation. The Veteran's ankle condition impacted his ability to work because he could only stand for 15 minutes, walk 1/2 block, must be seated for work, and could not lift heavy objects. Moderate limitation of motion of the ankle warrants a 10 percent rating, and marked limitation of motion of the ankle warrants a 20 percent rating. 38 C.F.R. § 4.71a, Code 5271. Currently, the Veteran is in receipt of a 20 percent rating under Diagnostic Code 5271, which is the highest rating provided based on limitation of motion of the ankle. The most recent examination found ankylosis to be present. A rating of 20 percent is provided for ankylosis of an ankle when the ankle is ankylosed in plantar flexion at less than 30 degrees. A rating of 30 percent is provided for ankylosis of an ankle when the ankle is ankylosed in dorsiflexion between 0 and 10 degrees, or in plantar flexion between 30 degrees and 40 degrees. A rating of 40 percent is provided when the ankle is ankylosed in dorsiflexion at more than 10 degrees, or in plantar flexion at more than 40 degrees, or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Code 5270. On the VA examination in 2007, there was tenderness, guarding of movement, and slight subluxation of the left ankle. Significantly, here was an eversion deformity. On examination, range of motion in the left ankle was severely limited, with only 10 degrees of plantar flexion and 10 degrees of dorsiflexion possible. (extension) (normal 20 degrees). Ankle function was also limited by pain after repetitive use. By the time of the examination in May 2013, although he had 15 degrees of plantar flexion, he was not able to dorsiflex at all. The examiner stated that the Veteran had ankylosis in plantar flexion to less than 30 degrees, which seems inconsistent with the range of plantar flexion to 15 degrees noted on examination, as compared to the 0 degrees of dorsiflexion. However, it is not necessary to delay this claim to clarify the matter, because the Board finds that the symptoms of the Veteran's ankle, based on the current evidence, more closely approximate the criteria for a 40 percent rating. In this regard, he was found to have an eversion deformity in December 2007, and ankylosis was found to be present in May 2013. Ankylosis to 0 degrees in dorsiflexion warrants a 30 percent rating, while ankylosis with eversion deformity warrants a 40 percent rating. Although not found on the May 2013 examination, a deformity is not the type of condition which is subject to improvement. Thus, with the resolution of all reasonable doubt in the Veteran's favor, the Board finds that the criteria for a 40 percent rating are more closely approximated, under the Diagnostic Code pertaining to ankylosis of the ankle. In reaching this determination, the benefit-of-the-doubt rule has been applied. 38 U.S.C.A. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. Jul. 17, 2009). Under Thun, there is a three-step analysis in determining whether referral for extraschedular consideration is appropriate. The initial step is a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Id. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). If the claimant's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Here, the Board finds that the rating criteria are adequate to evaluate the Veteran's left ankle disability. In this regard, a 40 percent rating is the highest rating provided for an ankle condition, under the amputation rule. See 38 C.F.R. § 4.68 (2013) (The combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. For example, the combined evaluations for disabilities below the knee shall not exceed the 40 percent evaluation, diagnostic code 5165.). The most recent examination found that the Veteran's ankle would not be better served by amputation. On the most recent examination, the Veteran's ankle condition impacted his ability to work because he could only stand for 15 minutes, walk 1/2 block, must be seated for work, and could not lift heavy objects. However, he has not indicated that his ankle interferes with his part-time job as a bus driver. Medical records do not show hospitalizations for his ankle condition. Therefore, the Board finds that although the rating schedule does not provide for a higher disability rating, the rating schedule contemplates the level of disability present, and, in any even, an exceptional disability picture has not been present, with related factors such as marked interference with employment or frequent periods of hospitalization. Therefore, referral for extraschedular consideration is not warranted. III. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted on a presumptive basis for certain chronic diseases, including osteoarthritis, if the disability was manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 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). To establish service connection, a Veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c) (2012); see Allen v. Brown, 8 Vet. App. 374 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (here the Federal Circuit distinguished between the examples of a broken leg versus cancer), (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. Jandreau, at 1377. Although an appellant's testimony cannot be rejected simply because it was not reported contemporaneously to service, or noted in the service medical records, the Board still must determine whether lay evidence is credible, in light of factors such as possible bias or conflicting statements, and the absence of contemporaneous medical evidence is a factor that may be weighed against the lay evidence of record. See Buchanan, at 1337. Bilateral Knee Disabilities The Veteran's service treatment records that show no complaint or manifestation of a disability of either knee. On examination for separation from service, the Veteran reported that he did not have, nor had he had, a "trick" or locked knee. Clinical evaluation of the lower extremities was normal. In a February 1996 statement from a private physician, it was reported that the Veteran had sustained an on-the-job injury of the right knee in July 1995. Private and VA treatment records show arthritis of each knee in 2004. In a January 2005 VA examination an opinion was rendered that, at present, the altered gait pattern caused by the Veteran's service-connected left ankle disability was not severe enough to have caused arthritis in the Veteran's left knee, but that given enough time, the left ankle disability could produce an exacerbation of a pre-existing osteoarthritic condition in the left knee. The examiner went on to opine that there was no obvious connection between the Veteran's left ankle disability and bilateral knee arthritis. Evidence received includes lay statements from friends and family who indicate that the Veteran walks with a significant limp caused by his service-connected left ankle disability. This, in turn, is believed to cause knee pain. In an August 2007 VA outpatient treatment report, it was indicated that the Veteran's abnormal gait was affecting his knees and hips. In a December 2007 statement, a VA physician indicated, after treating the Veteran for the past four years, it was believed that there was a correlation between the Veteran's service-connected ankle disability and increasing problems with the knees and back. A March 2013 VA examination of the knees resulted in diagnoses of tricompartmental arthritis left knee, right knee arthritis, and posttraumatic Osgood-Schlatter's disease on the right. The joints were stable. The Veteran complained of pain in the knees with movement, and said he could not squat. At this time, he attributed the onset to getting up and down under the aircraft and climbing ladders to get on top of the aircraft and cock pit during service. He said that he was young and thought he could withstand it, but the knees had gotten worse over the years. He had undergone arthroscopic surgery of the right knee in September 1995, with resulting posttraumatic arthritis. He used a cane to ambulate. He said that he drove a school bus 4 hours a day, and had left knee pain when driving the bus. The examiner concluded that the current knee disabilities were not caused by or result of active duty or the service-connected left ankle. There was no direct cause shown, nor was aggravation or exacerbation established. The examiner explained that there was no evidence of any knee complaints in service, or for many years thereafter. He had two reported post-service injuries of the right knee, and now had posttraumatic changes in the knee. He said that he had traumat to the right knee in 1984 while skating, as well as a serious twisting injury to the right knee in July 1995. The latter was an on-the-job injury, when he slipped on some steps, and he underwent arthroscopic surgery in September 1995. The examiner wrote that the Veteran said that the left knee disability occurred over time, but that he claims it existed since 1967. The examiner said that the January 2005 examination clearly refuted any connection to the left ankle. On the May 2013 VA examination, which included findings pertaining to the ankle detailed above, the examiner concluded that it was less likely than not that the knee condition was proximately due to or the result of the Veteran's service-connected ankle condition, because there was no evidence in the literature to support increased risk for arthritis of the knee from ankle arthritis, either ipsilateral or contralateral. Similarly, it was not at least as likely as not that a knee disability was aggravated beyond its natural progression by the service-connected condition, because there was no evidence in the literature to suggest an increased level of disability of the back or knee from ankle arthritis. In evaluating the evidence, the Board notes that the Veteran testified at his Board hearing in October 2012 that he was constantly on his knees crawling around underneath aircraft on concrete and asphalt in the course of his duties as an aircraft mechanic. In addition, he had to climb ladders. He also testified that he believes that due to the limp from his left ankle condition, and having to catch himself from falling due to the left ankle, he has developed a knee condition. The evidence also indicates that the Veteran was employed as an airplane mechanic for many years after service. His work-related injury to the knee was due to a twisting injury when he slipped on some stairs, with no reference in the reports concerning that injury to his ankle as a causal factor. Moreover, he was able to ambulate with crutches after that injury, bearing weight on the left leg. When seen for VA outpatient treatment in November 2001, the Veteran said his knee pain had begun in 1996. Concerning whether a knee disability was of service onset, the Board finds that the absence of any complaints or abnormal findings in the service treatment records, or for many years thereafter, to be persuasive. In this regard, the Veteran was treated for other conditions during service, and he specifically denied knee problems at the time of his separation examination. The Veteran's statements made decades later, in support of a claim for monetary benefits, and after a documented post-service knee injury, are not sufficient to outweigh the probative value of that documented negative evidence. In addition, arthritis of the knees was not shown within a year of separation. Thus, service connection on a direct or presumptive basis is not warranted. He also claims that his bilateral knee conditions developed as a result of his limping gait caused by his service-connected left ankle condition. This, however, is not subject to lay observation, and the Board finds that medical expertise is necessary to establish a nexus between the service-connected ankle condition and a knee condition. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In support of the Veteran's claim, in an August 2007 VA outpatient treatment report, a podiatrist indicated that the Veteran's abnormal gait was affecting his knees and hips. In a December 2007 statement, a VA physician indicated, after treating the Veteran for the past four years, it was believed that there was a correlation between the Veteran's service-connected ankle disability and increasing problems with the knees and back. However, in a January 2005 VA examination an opinion was rendered that, at present, the altered gait pattern caused by the Veteran's service-connected left ankle disability was not severe enough to have caused arthritis in the Veteran's left knee, but that given enough time, the left ankle disability could produce an exacerbation of a pre-existing osteoarthritic condition in the left knee. The examiner went on to opine that there was no obvious connection between the Veteran's left ankle disability and bilateral knee arthritis. The March 2013 examiner and the May 2013 examiner both concluded that there had been no aggravation of the Veteran's bilateral knee conditions caused by the left ankle condition. The May 2013 examiner noted that there was no evidence in the literature to support either increased risk for arthritis of the knee, or increased level of disability, due to ankle arthritis. None of the extensive VA outpatient treatment records attribute the onset or severity of either knee condition to the left ankle condition. In March 2002, his difficulties with walking were attributed to his weight, and little treatment has been shown for his ankle condition. Significantly, the current problem list noted in the outpatient treatment records has not mentioned an ankle disability for past several years. In view of these factors, the Board is persuaded by the opinions which conclude that there is no relationship between the left ankle condition and the bilateral knee conditions, either by cause or aggravation, because they are most consistent with the other evidence of record. Thus, the preponderance of the evidence is against the claim; as such, the benefit-of-the-doubt does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lumbosacral Spine Disability Service treatment records show that in November 1965, the Veteran was seen complaining of acute onset of non-radiating low back pain beginning the previous day. On examination, he could heel and toe walk, and sensation in the legs was normal. Straight leg raising was positive at 80 degrees bilaterally. The assessment was lumbosacral sprain. X-rays disclosed straightening of the normal lumbar lordosis, with otherwise normal findings. In November 1967, he again complained of pain in the lower back, which he said he had hurt while watering a horse. He had felt a pop, and now had pain in the lower lumbar area. He had a history of previous low back pain. On examination, he had pain with bending forward; straight leg raising and reflexes were normal. He weighed 224 pounds, and the impression was lumbosacral strain and obesity. X-rays taken at this time for recurrent pain in the lumbar area showed lumbarization of S-1 bilaterally with an asymmetrical facet on he left which may be causing some degree of instability. On the separation examination medical history obtained in August 1968, the Veteran the veteran responded "yes" to a question of whether he had now, or had ever had, recurrent back pain. The examiner stated that he had lower back pains in 1967, was treated with Darvon, and had no complications or sequelae. Examination of the spine was normal on examination. Private treatment records, dated in September 1995, show that the Veteran had a past history of back surgery. VA treatment records dated in November 1984 relate the onset of a back condition to 1984. The Veteran said he had undergone a laminectomy at that time. In his claim received in May 2002, he said that he had undergone back surgery in 1985 due to injures sustained in service, in which he twisted the back while working as an aircraft mechanic. He subsequently stated, however, that the surgery had been due to an worker's compensation injury. While this does not rule out service connection for a back condition, when considered together with the first claim for service connection for a back condition having been filed after that post-service injury, it is evidence against the claim of direct service connection, which must be weighed together with the other evidence of record. This includes the absence of any positive nexus opinion on the basis of direct service connection. Moreover, although he reported a history of recurrent back pain on his service separation examination, the examiner elicited that he had no complications or sequelae, and the back was normal on examination. The VA examination in March 2013 resulted in the conclusion that the back disability was less likely than not (less than 50 percent probability) incurred in or caused by in-service injury, event, or illness. Although the examiner appears to base his conclusions primarily on the Veteran's post-service worker's compensation back injury, there is, in fact, no medical opinion linking the onset to service, and the Veteran has not claimed continuity of symptomatology. In any event, any claim of continuity of symptomatology is contradicted by his statement made for therapeutic purposes in 2001, that the back condition began in 1984. Concerning whether the back disability was due to or aggravated by the left ankle disability, lay statements from friends and family of the Veteran indicate that the Veteran walks with a significant limp caused by his service-connected left ankle disability. This, in turn, is believed to cause low back pain. As with the knees, the Board finds that this requires a medical opinion. In a December 2007 statement, a VA physician indicated, after treating the Veteran for the past four years, it was believed that there was a correlation between the Veteran's service-connected ankle disability and increasing problems with the knees and back. However, both examiners in March 2013 and May 2013 concluded that the current low back disability was not caused or aggravated by the service-connected left ankle disability. On the May 2013 VA examination, the examiner concluded that it was less likely than not that the knee or back condition was proximately due to or the result of the Veteran's service-connected ankle condition, because there was no evidence in the literature to support increased risk for arthritis of the back or knee from ankle arthritis, either ipsilateral or contralateral. Similarly, it was not at least as likely as not that a knee or back disability was aggravated beyond its natural progression by the service-connected condition, because here was no evidence in the literature to suggest an increased level of disability of the back or knee from ankle arthritis. This most recent examination contains more of an explanation than either of the other two opinions, and is better supported by the other evidence of record. In this regard, none of the extensive VA outpatient treatment records attribute the onset or severity of the back condition to the left ankle condition. Significantly, the current problem list noted in the outpatient treatment records has not mentioned an ankle disability for past several years. In sum, the weight of the evidence establishes that a chronic lumbar spine disability, including arthritis, did not have its onset while the Veteran was on active duty, is not due to any in-service events, and was not caused or aggravated by the service-connected left ankle condition. ORDER An evaluation in excess of 40 percent for degenerative arthritis of the left ankle is granted. Service connection for bilateral knee disabilities is denied. Service connection for a lumbosacral spine disability is denied. ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs