Citation Nr: 1342997 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 12-34 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a right knee disability to include as secondary to a right ankle disability. 3. Entitlement to service connection for a left knee disability to include as secondary to a right ankle disability. 4. Entitlement to service connection for a lumbar spine disability to include as secondary to a right ankle disability. REPRESENTATION The Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from June 1984 to April 1988 and November 1990 to March 1991. The Veteran also had service in the United States Army Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2008 of a Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The issues of service connection for a right knee disability, service connection for a left knee disability, and service connection for a lumbar spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT Resolving the benefit of the doubt in favor of the Veteran, the Veteran's current right ankle disability, diagnosed as degenerative joint disease, had its onset in active service. CONCLUSION OF LAW The criteria for service connection for a right ankle disability, diagnosed as degenerative joint disease, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claim for service connection for a right ankle disability is resolved in the Veteran's favor, the only matter disposed of in this decision, further discussion here of compliance with the VCAA with regard to the claims to reopen is not necessary. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by showing inception or aggravation during service. 38 C.F.R. § 3.303(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). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts In June 1984, upon entrance into the United State Marine Corps, the Veteran's back and lower extremities were normal. He also appears to have reported treatment to the right elbow. There is an indication of treatment to both ankles after a fall, although the examiner's notes are not clear. In August 1985, the Veteran complained of a burning sensation in the lateral aspect of his right ankle. At the time, it was diagnosed as a neuropathy of an unknown etiology although one note suggested it was a boot problem. In November 1985, while serving aboard ship, the Veteran fell and hit his knees on deck and complained of bilateral knee symptoms. Apparently, the right knee was more symptomatic as the examination noted edema in that knee as well as mild effusion. There was no evidence of laxity or neurological deficits and the Veteran had full range of motion. In the separation examination in March 1988, the Veteran's back and lower extremities were normal. At the entrance examination into the United States Army reserves in November 1989, the Veteran's back and lower extremities were normal. He also did not report any pre-service conditions regarding the lower extremities and back although he had suffered a fractured right clavicle twice when he was younger. In July 1998, the Veteran was in a motorcycle accident and complained of neck pain. There did not appear to be any complaints or treatment of the lower back or the lower extremities. The Board notes there is a medical record that is partially illegible but indicates at one point, the Veteran fell from a truck and had abdominal complaints but there appears to be some symptoms involving the back. In April 2004, while in the reserves, the Veteran fell or stepped off a moving train and as his body kept moving forward, his right ankle was caught in a vine and he twisted it. He did not seek immediate treatment but was seen later in the emergency room of a private facility. The right ankle had bruising and edema and the Veteran complained of pain not only in the right ankle, but also the back. The X-ray of the ankle was normal. Sensation was intact although the Veteran could not go to his full strength due to pain. The notes indicate no injury above the ankle but also appear to indicate swelling in the right anterior knee. He had full range of motion. The Veteran submitted documentation that this incident occurred while the Veteran was on active duty for training including a December 2005 determination by the United States Army Reserves that the April 2004 incident occurred while the Veteran was on active duty. In a statement dated in March 2010, the Veteran described how he was acting as a conductor and brakeman with his railway battalion in April 2004. A student operator tried to slow the train too quickly and the Veteran was thrown from the train. He had to complete the rest of his reserve duty before he could seek medical attention. Pain in his right ankle, right knee, and lower back has persisted to the present. In September 2004, an MRI of the right ankle revealed a small ossicle which appeared to be located within the anterior talofibular ligament. This was felt to represent sequela of distant trauma or could represent an anatomic variant. Otherwise, the ankle was normal. The Veteran was evaluated for his right ankle and the history of injury related stepping off a train and twisting the right ankle. Since that time, he has had residual and primarily lateral and anterior ankle discomfort. The physician noted a trace amount of swelling in the right ankle compared to the left. He had good range of motion. There was modest discomfort on deep palpitation over the anterolateral ligament complex without any gross clinical instability on stressing. In a report dated in January 2008, Dr. G. Gorich noted that the Veteran suffered injuries to his lower extremities and back when he was thrown off a moving train while performing his military specialty as a railroad brakeman. He fell 6-8 feet and twisted his right ankle and knee. Both joints exhibited sudden swelling and the Veteran had difficulty ambulating and he also experienced back pain since the incident. He now had daily pain. The Veteran was provided a VA examination in December 2009. The Veteran reported originally injuring the right ankle during a fall and now complained of right ankle swelling and pain during ambulation. He also injured his right knee a few months later sliding down a fire pole landing on the right ankle which was weak. The Veteran has had right knee swelling and pain since that time. There were no complaints regarding the left knee. There were no other symptoms of either the knees or the right ankle such as weakness or instability. The Veteran could stand, sit, or walk for an hour. The Veteran had significant discomfort at work as a nurse. Upon examination, the Veteran had normal range of motion for the knees without any sign of instability. Ankle motion was also normal. X-rays revealed mild degenerative changes in the right ankle joint. There were minimal bilateral osteoarthritic changes. The diagnosis was bilateral knee and right ankle joint degenerative joint disease. In the opinion of the VA examiner and based upon the Veteran's history as well as the clinical and imaging information, more likely than not, the Veteran's right ankle disability was related to service, The impairment was described as mild. The Veteran was also seen in a VA orthopedic consult in December 2009 and reported a history of injury after the train stopped too suddenly and he was thrown into a ditch and received treatment a day or two later. He had right knee, right ankle, and right low back pain which have progressively worsened. The consult also noted the subsequent work related injury to the left knee in September 2004 which resulted in three surgeries to repair the meniscal tear. He still has constant left knee pain, constant right knee pain, right ankle pain, and low back pain. There was no radiation or neurological symptoms. The X-ray of the right ankle showed a traction type spur at the medial malleolus with small cysts noted anteriorly. The impression was degenerative joint disease for the lumbar spine, right ankle, and the knees. In a report dated in March 2010, Dr. G. Gorich noted the Veteran had chronic back, right knee, and right ankle pain with a recent exacerbation causing the Veteran difficulty in maintaining his work. The Veteran also had difficulty in sleeping and walking. He has noticed some swelling in his ankle. Analysis In light of the opinion of the December 2009 VA examiner, and after resolving all doubt in favor of the Veteran, the Board finds that there is sufficient evidence to establish direct service connection for the right ankle disability. The Veteran's statements and various records establish the Veteran injured the ankle which occurred during active duty training in the Reserves, i.e., he fell from a railroad train in April 2004. Further, the Veteran has stated he has had pain and other symptoms since the incident. The expert, taking the Veteran's history and treatment records into consideration along with the clinical and imaging information, concluded that more likely than not, the Veteran's right ankle disability was related to service. He diagnosed the disability as degenerative joint disease of the right ankle. The Board finds this opinion to be the probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Thus, based on the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's degenerative joint disease of the right ankle is due to service. ORDER Entitlement to service connection for a right ankle disability, diagnosed as degenerative joint disease, is granted. REMAND The Veteran has filed claims for service connection for both his knees and for his lower back (filed as a lumbar spine disability). The Board finds that the December 2009 VA examination (and an addendum dated in February 2010) to be inadequate. In several areas, the examiner provides a confusing opinion or does not discuss the clinical significance and relationship to service of findings or history either documented or reported by the Veteran. For instance, the Veteran has stated that the April 2004 training incident also injured his back and that he has had pain ever since the accident. There is also contemporaneous evidence of pain. He has also asserted that his right ankle disability has caused or aggravated his back disability, diagnosed as degenerative joint disease of the lumbar spine. While the February 2010 addendum discussed why the lumbar spine was not related to the right ankle disability, neither the December 2009 VA examination report or the February 2010 opinion explained or discussed why the degenerative joint disease of the lumbar spine was related to service other than to state it was based upon based upon the Veteran's history as well as the clinical and imaging information. There was no discussion of the Veteran's evidence that the back was injured in the fall from the train and he has experienced pain and other symptoms since that time. The Veteran has given similar evidence that his right knee was also injured when he fell from the train. On this claim, the December 2009 VA examination and the February 2010 addendum do not discuss this evidence and furthermore, give conflicting opinions as to whether the right knee disability is related to service. The December 2009 VA examination indicates the right knee is as likely as not related to service, while the February 2010 addendum indicates that the right knee is not related to trauma. The December 2009 VA examination refers to a civilian accident that resulted in injury to the right knee but the Veteran's statements and other medical records refer to a left knee injury. The February 2010 addendum also states no right knee soft tissue complaints were noted prior to the right knee pain noted in "9/09", and that fall is consistent with the right ankle chronic instability that developed since the sprain of "4/04". The Board finds that "9/09" is inaccurate, since the Veteran made complaints before September 2009. These factual inaccuracies make the report and addendum inadequate and unreliable. In addition, the service treatment records indicate that either the back disability or the knee disabilities might have resulted from other incidents while the Veteran was on active duty, but the December 2009 VA examination report and February 2010 addendum do not discuss the other service incidents. In November 1985, while serving aboard ship, the Veteran fell and hit his knees on deck and complained of bilateral knee symptoms. Apparently, the right knee was more symptomatic as the examination noted edema in that knee as well as mild effusion. The Board notes there is a service treatment record that is partially illegible including the date. It does indicate the Veteran fell from a truck and had abdominal complaints but there appears to be some symptoms involving the back. Thus, the Board has determined that the December 2009 VA examination and the February 2010 addendum are inadequate to decide the claims of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Therefore, the Veteran should receive a new VA examination regarding his claims of service connection for right and left knee disabilities and lumbar spine disability. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran a VA orthopedic examination, for the bilateral knee disabilities. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner is asked to determine whether the Veteran has any current orthopedic disability for each knee, and, if so, whether it is at least as likely as not (50 percent probability or more) that any orthopedic disability had its onset during service or is otherwise related to service. The examiner is asked to specifically discuss the relationship between any diagnosed orthopedic disability of the knee and the service treatment records from November 1985 when he fell and hit both knees on the deck of a ship. The examiner is asked to specifically discuss the relationship between any diagnosed knee disability and the April 2004 incident where the Veteran fell, stepped off, or was thrown from a moving train. The examiner is also requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any orthopedic disability of the knees was caused or aggravated by the service-connected right ankle disability. The examiner is asked to comment on the clinical significance that the Veteran suffered a left knee medial meniscus tear in September 2004, 5 months after the train incident, while sliding down a pole working in a fire department The examiner is further advised that aggravation for legal purposes is defined as a permanent worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 2. Provide the Veteran a VA back examination for the lumbar spine disability. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current back disability had its onset in service or is otherwise related to active service. The examiner is asked to specifically discuss the relationship between any diagnosed back disability and the service treatment records indicating the Veteran fell from a truck and there were some symptoms involving the back. The examiner is asked to specifically discuss the relationship between any diagnosed back disability and the April 2004 incident where the Veteran fell, stepped off, or was thrown from a moving train. The examiner is also requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any low back disability was caused or aggravated by the service-connected right ankle disability. The examiner is further advised that aggravation for legal purposes is defined as a permanent worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 3. After the development requested is completed, readjudicate the claims. If any benefit sought remains denied, furnish the Veteran a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board The Veteran has the right to submit additional evidence and argument on the matter or matters 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 that are 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. 2013). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs