Citation Nr: 1509496 Decision Date: 03/04/15 Archive Date: 03/17/15 DOCKET NO. 10-38 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left ankle disability, to include as secondary to a service-connected right knee condition. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Hubers, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1981 to May 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2009, the Veteran testified at a hearing before a Decision Review Officer (DRO). In July 2011, the Veteran testified via video-conference at a hearing before the undersigned Veterans Law Judge. Transcripts of those hearings are associated with the claims file. In August 2014, the Board remanded the above claim for further development in accordance with its prior, July 2014 remand instructions. The Board finds that there has been substantial compliance with its remand instructions and the claim is ready for disposition. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran's current left ankle disability did not manifest in active service and is not otherwise etiologically related to his active service. 2. The Veteran's current left ankle disability is not due to and has not been aggravated by his service-connected right knee disability. CONCLUSION OF LAW The criteria for service connection for a left ankle disability, including as secondary to service-connected disabilities, have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the June 2014 Board hearing, the undersigned Veterans Law Judge specifically addressed the legal criteria relevant to the Veteran's claims and asked questions as to symptomatology, medical treatment, and the existence of any private medical opinions that would help the Veteran's claim. Moreover, neither the Veteran, nor his representative, has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error. When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the instant case, notice was provided to the Veteran with respect to his left ankle claim in November 2008, August 2009, and December 2009. The contents of the notice letter fully comply with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Board concludes that VA satisfied its duties to notify the Veteran. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated with the claims file the Veteran's available service records, private treatment records, Social Security Administration (SSA) records, and VA treatment records. While the Veteran identified a private provider who treated him many years ago and whose records have not been associated with the file, the private provider indicated it did not have treatment records relating to the Veteran. See, e.g., February 2008 Correspondence from Private Hospital ("Due to the hospital's record retention policy, the records for this year, 1990, have been destroyed."). The Veteran has not identified any other treatment records aside from those that are already in evidence. VA also satisfied its duty to obtain a medical examination. VA provided the Veteran with multiple examinations, including examinations directly addressing the left ankle disability in March 2010 and April 2014 (the report is dated May 2014). In addition, the April 2014 VA examiner provided a September 2014 addendum opinion. The examinations and opinions are adequate as the VA examiners reviewed the Veteran's pertinent medical history, conducted a clinical evaluation of the Veteran, and provided an adequate discussion of relevant symptomatology. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Specifically, the May 2014 opinion regarding secondary service connection contains an adequate rationale and the September 2014 addendum opinion on direct service connection contains an adequate rationale. Stefl, 21 Vet. App. at 123-24. The examinations and opinions, collectively, satisfy VA's duty to assist in developing medical evidence via examination. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the claims on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. The Merits: General Legal Criteria Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Prinicipi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Further, where the veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Arthritis (degenerative joint disease) is included in the list of chronic diseases under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology apply to the Veteran's claim. However, as discussed further below, the greater weight of the available medical evidence is against finding that the Veteran was diagnosed with left ankle arthritis within one year after discharge or that he has suffered a continuity of symptomatology of left ankle arthritis since service. Rather, it appears that he did not report continuous symptoms or seek medical treatment for left ankle pain until many years after his discharge. Finally, the Veteran has claimed, alternatively, that his left ankle disability is due to or aggravated by his service-connected right knee disability. In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. Buckley v. West, 12 Vet. App. 76, 84 (1998). Secondary service connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Also, with regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused or aggravated by the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Merits: Direct and Secondary Service Connection The Veteran asserts that he currently suffers from a left ankle disability that was incurred in or as a result of his active duty service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Prinicipi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). With respect to an in-service event, the Veteran alleges, in part, that he began having ankle trouble after his in-service knee surgery and that he had sprained his ankles while running during service. The in-service knee surgery is well-documented, the Veteran is service-connected for both right knee and right ankle disabilities relating to the alleged in-service injury to his knee, and, so, the in-service element has been met. The VA examiner's March 2010 report included a diagnosis of left ankle degenerative joint disease (i.e. arthritis). Therefore, a current disability is also established. The remaining element that must be established is a causal nexus between the in-service event or injury and the Veteran's current disability. Shedden, 381 F.3d at 1167. Alternatively, the claim may be established if the evidence shows a causal nexus between the Veteran's service-connected right knee disability and his left ankle disability. Buckley, 12 Vet. App. at 84. The Veteran has alleged, such as in his November 2009 Decision Review Officer (DRO) hearing, that he his left ankle problems are caused by the altered gait resulting from his service-connected right knee disability. He also testified in his July 2011 Board hearing before the undersigned, that his ankle pain started in the military due to all of the running he did at that time. While the Veteran is competent to report (1) symptoms observable to a layperson (e.g. ankle pain); (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, the Board need not find a lay Veteran competent to render opinions regarding etiology of a medically complex conditions. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). This Veteran, who lacks medical training, is not competent to opine on the etiology or proper diagnosis of his current left ankle disability. See, e.g., Jandreau, 492 F.3d at 1377. Similarly, the Board also is not competent to make an independent medical assessment of the etiology of the Veteran's left ankle disability. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991); see also Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis."). Therefore, in evaluating the Veteran's claim, the Board will rely on the medical evidence of record. The Board, however, has considered the Veteran's subjective reports of symptoms, particularly as they illuminate or underscore the medical opinions of record. The Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of a left ankle injury or disability. The Veteran's January 1986 discharge examination noted problems with the right knee, but failed to indicate any abnormalities with respect to the left ankle. Similarly, April 1986 findings by the Physical Evaluation Board indicated problems with the right knee that prevented the Veteran from satisfactory performance of his duties, but contained no suggestion of any problems with the left ankle. The record is silent for any complaints to or treatment received by the Veteran from medical providers with respect to left ankle pain or other symptoms from his discharge until 2007. In the comprehensive medical history he provided the SSA, the first indication of any treatment related to his left ankle was the identification of a private treatment provider from whom he sought treatment in 2007 for "fractured tibular [sic] bone to left knee and swollen left ankle." The absence of records is significant because the Veteran listed providers from as long ago as 1991 as well as for 2005 and 2006. In short, if the Veteran had been experiencing continuous symptoms, or even intermittently severe symptoms, for a left ankle condition, the Board would reasonably expect the Veteran to identify physicians who treated him for left ankle symptoms at some point between his discharge in 1986 and 2007. Buczynski v. Shinseki, 24 Vet. App. 221 (2011) (citing Fed. R. Evid. 803 (7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")); see also Kahana, 24 Vet.App. at 440 (Lance, J., concurring) (identifying factors that must be considered before the Board concludes that the absence of medical records is evidence against an asserted fact). The Board finds that the delay of roughly two decades between the Veteran's discharge from active service and his first documented complaint of left ankle symptoms provides some probative evidence against his claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board is entitled to consider a delay in seeking treatment and reporting symptoms). Private treatment records from 2007 document treatment for left knee pain after the Veteran fell off a ladder. He landed on his left leg trying to protect his right knee. Despite the well-documented left knee problems, there is no indication that the Veteran had left ankle pain. An April 2008 opinion letter submitted to the SSA by the Veteran's treating private physician listed five (5) complaints, including seizures, sleep disorder, right knee pain, left knee pain, and heart disease. Notably, despite a thorough examination for disability compensation purposes, the physician did not identify any problems with the left ankle, despite documenting, after a physical examination, that the Veteran had full range of motion of the ankle. A June 2008 VA treatment record documents complaints of swollen knees and ankles along with pain throughout his body. The treating physician noted that the Veteran reported that his right ankle had been giving trouble since running in the military, but did not mention any similar history for the left ankle. An August 2008 VA psychiatry outpatient note indicates that the Veteran was suffering knee and ankle pain. His August 2008 submission in support of his SSA disability claim also lists "bilateral chronic pain with ankles." A November 2008 SSA disability determination letter indicates that the Veteran was not disabled and provided a primary diagnosis of "S/P left knee fracture" and a secondary diagnosis of "anxiety related disorder." On a statement submitted in October 2010 in support of his appeal, the Veteran alleged "he had been suffering since [his] military service" with "bilateral foot, ankle and joint pain." He indicated that he was diagnosed with gout, that it "happens every two to three months and it last [sic] for at least for five day [sic]." VA treatment records since that time continue to reflect complaints of left ankle pain. See, e.g., August 2012 VA Primary Care Nursing Note (documenting complaints of bilateral ankle pain); January 2014 VA Mental Health Note (documenting complaint of left ankle pain). With respect to medical opinions, the Veteran has been afforded several VA examinations regarding his left ankle. He was first examined for a left ankle disability in March 2010. The March 2010 examiner diagnosed mild degenerative joint disease (arthritis) of the left ankle, but opined that it was not caused by or a result of the service-connected right knee condition" and explained that his left ankle disability was more soundly explained by his morbid obesity. The Board determined that the opinion was inadequate and, in February 2014, remanded the matter for a more thorough opinion. Because the negative opinion failed to address the relevant criteria and was supported by an inadequate rationale, the Board gives it no probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran was also examined in April 2014 resulting in a May 2014 report. As the Board discussed in its August 2014 remand, the May 2014 VA opinion was inadequate with respect to direct service connection. Most relevantly to the current appeal, the examiner provided conflicting opinions, one stated in the positive and the other in the negative, in response to the question whether the Veteran's left ankle condition was related to his military service. The rationale of the opinion appears to support a negative opinion. Because the opinions are ambiguous, internally inconsistent and are not well-supported by a coherent rationale, the Board finds that they have no probative value either for or against the Veteran's claim. . Nieves-Rodriguez, 22 Vet. App. at 302-304 (describing factors to be considered in assigning probative weight to medical opinions). However, as noted in the Board's August 2014 remand, the May 2014 opinion on secondary service connection was adequate. The examiner opined that it was less likely than not that the Veteran's left ankle disability was due to or the result of the Veteran's service-connected condition and that it was less likely than not that his left ankle disability was worsened beyond its natural progression by the Veteran's service-connected right knee condition. The rationale for the secondary service-connection opinion referenced an accurate medical history, provided thorough reasoning, and was convincing. The Board assigns it significant probative value. Id. As a result of the Board's August 2014 remand, the VA examiner provided a September 2014 addendum opinion: It is the opinion of the examiner that his left ankle condition is not related to his time in the service. The rationale is there is no objective evidence of this in the STR. As well as his current condition is very common in this age group as well as he has a past history of alcohol abuse and obesity which would predispose an individual to develop this condition. It is the opinion of the examiner that his left ankle is not related to his right knee condition. The rationale is clinical studies/publications as well as peer reviews do not support that a joint (right knee) would result in a contralateral joint (left ankle) developing his current condition. The Board finds that the examiner's rationale for the direct service connection opinion is based on an accurate factual history and relevant principles of medicine, is well-reasoned, and, so, is entitled to significant probative weight. Nieves-Rodriguez, 22 Vet. App. at 302-304. In summary, there are no competent opinions of record in favor of either direct service connection or secondary service connection. Rather, the medical opinions of record are unanimously against the Veteran's claim of entitlement under a theory of either direct or secondary service connection. The greater weight of the evidence is against finding that the Veteran was diagnosed with a left ankle disability within the presumptive period, that he experienced a continuity of symptomatology with respect to his left ankle since discharge, that his left ankle disability is related to any in-service event or injury, and that his left ankle disability was either caused or has been aggravated by his service-connected right knee disability. The evidence is not in equipoise, so the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. at 53-56. Entitlement to service connection for a left ankle disability, to include as secondary to a service-connected right knee disability, is denied. ORDER Entitlement to service connection for a left ankle disability, to include as secondary to a service-connected right knee condition, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs