Citation Nr: 1751971	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  13-34 829	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to service connection for a left ankle disability, to include as secondary to the service-connected right ankle disability, and as due to an undiagnosed illness. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. D'Allaird, Associate Counsel






INTRODUCTION

The Veteran served on active duty from November 1971 to November 1991.
 
This matter is before the Board of Veterans' Appeals (the Board) on appeal from a March 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. 

The Board notes in December 2013, the Veteran's representative submitted a Form 9 that requested a Board hearing. It appears the Veteran subsequently withdrew his hearing request.

In March 2016 the Board remanded this claim for additional development. 


FINDINGS OF FACT

1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War.

2. The Veteran's left ankle disability was not incurred in, aggravated by, or otherwise related to service.

3. The Veteran's left ankle disability is not caused or aggravated by a service-connected disability.

4. The Veteran's left ankle disability did not develop as a result of an undiagnosed illness or medically unexplained chronic multisymptom illness.






CONCLUSION OF LAW

The criteria for service connection for a left ankle disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Here, the duty to notify was satisfied by letter in October 2008. See 38 U.S.C.A. § 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

Regarding the duty to assist, the Veteran's service treatment records (STRs) and relevant post-service treatment records have been secured. The agency of original jurisdiction (AOJ) arranged for VA examinations which were held in January 2009, December 2014 and July 2016. The Board finds that the clinical findings and informed discussion of the history and cause of the Veteran's left ankle disability in the examinations are sufficient for rating purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-300 (2008). 

As stated above, the Board previously remanded the case in March 2016 to obtain any outstanding VA and private treatment records and to schedule the Veteran for a new VA examination. The AOJ requested the Veteran identify any outstanding medical records by letter in May 2016. A new VA examination was obtained in July 2016. The Board finds that the record as it stands includes adequate, competent evidence to allow the Board to decide the matter of service connection, and that no further development of the evidentiary record in these matters is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim.
Legal Criteria

Initially, the Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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 between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be established either by showing direct service incurrence or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Secondary service connection may be established for a disability that is proximately due to, or the result of, or aggravated by a service connected disease or injury. Establishing secondary service connection requires evidence establishing: (1) a current disability (for which secondary service connection is sought); (2) an already service connected disability; and (3) that the current disability was either (a) caused or aggravated by the service connected disability. 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995).

Certain diseases, including arthritis, are considered chronic, per se, and therefore may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of service unless clearly attributable to incurrent causes. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). 

If chronicity (permanency) in service is not established, or is legitimately questionable, then a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The term chronic disease, whether as shown during service or manifest to a compensable degree within the presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, including muscle or joint pain, provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021; and that, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.

In all cases where an undiagnosed illness may be present, that illness must be confirmed by objective findings. Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). There is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Laypersons are competent to report objective signs of illness. Id.

Whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 

Competent (that is, qualified) medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements contained in medical treatises, scientific articles, or research reports or analyses. 38 C.F.R. § 3.159(a)(1).

Competent (that is, qualified) lay evidence means evidence not requiring that the person providing it have specialized education, training, or experience. Lay statements are qualified to establish that an event or circumstance occurred if the statements are provided by a person who has personal knowledge of and provides information about matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or reporting that a medical provider gave them a diagnosis in the past. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence may be qualified to establish that an event or injury occurred during service, or that a chronic disability began during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 

A claim will be granted if the evidence supports it or if the evidence for and against the claim is equally balanced (this is sometimes called "relative equipoise"). 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Factual Background

The Veteran's STRs are silent for any diagnosis of, reports of, or treatment for any disability affecting the Veteran's left ankle.

A pre-induction examination dated in June 1971 reported the Veteran's health as "good" and did not record any left ankle conditions.

The Veteran's August 1991 retirement examination reflects the Veteran reported he was currently in good health. No left ankle conditions were noted.

VA treatment notes dated in July 2003 reflect the Veteran sprained his left ankle and was prescribed crutches and an ankle brace. The Veteran reported pain and swelling. 

VA treatment records dated in August 2008 note that following his right ankle surgery, the Veteran was protective of his right ankle. It was also noted "of more concern is the lateral left ankle, where there is some tightness and some tenderness along the peroneal tendons and the lateral talofibular ligament." The Veteran reported wearing shoes that were well over two years old, and it was noted this may be the cause of his lateral ankle strain and diabetic shoes were ordered for him.

The Veteran was afforded a VA examination in January 2009. The Veteran reported his right knee and left ankle were achy and sore. He reported that he felt the new diabetic shoes and inserts given to him bothered his joints. He further stated that he did not have right knee or left ankle pain until he got the diabetic shoe inserts. The Veteran stated that he feels better when he is not wearing the shoes. The examiner noted that he had an antalgic gait favoring the right foot and ankle. The examiner diagnosed the Veteran with left ankle arthralgia without degenerative changes. The examiner opined that the left ankle condition was at least as likely as not caused by the right ankle condition. The examiner reasoned:

[b]ecause he is walking with an antalgic gait it is at least as likely as not that his left ankle is bothering him because of his right ankle that had the surgery done. It is noted that he says it is the shoes that he wearing [sic] currently for his diabetic condition that seem to aggravate him the most.

VA treatment notes dated in September 2009 note the Veteran reported he had twisted his left ankle and had fallen 5 days prior. He denied any pain to his left ankle, and no swelling or redness was observed.

The Veteran was afforded another VA examination in December 2014. The report notes that per the record and the Veteran, he had instability of the left ankle in 2009. The Veteran reported that the instability had been resolved. The Veteran stated "nothing wrong with the left ankle, and I understand why I didn't get compensated for it." The examiner provided a diagnosis of arthritis, degenerative of the left ankle. The examiner opined that the Veteran's left ankle disability is less likely than not proximately due to or the result of the Veteran's service connected condition. The examiner's rationale stated:

The Veteran does not have a left ankle disability that would be caused or aggravated by the SC right knee and right ankle or 'antalgic gait.' The Veteran denies any issues with the ankle. Today's exam was normal of the left ankle. The xray showed ealry [sic] arthritis - not related to service and not related to the opposite ankle. Also the Veteran right ankle 'antalgic gait' as noted on the 2507 is not a true antalgic gait but deliberate stance and walk by the Veteran to limit pain control of the ankle. No ankylosis.

The examiner further opined that the Veteran's left ankle disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that there was no left ankle condition or disability that would be diagnosed as a disability. 

Following a remand by the Board in March 2016, the Veteran was afforded another VA examination in July 2016. The examiner provided a diagnosis of arthritis, degenerative of the left ankle. The Veteran reported that he had a left ankle condition that is secondary to his right ankle condition. He reported having an altered gait as a result of his right ankle condition that has caused pain in his left ankle. He stated that this was because he had to bear more weight on the left foot. He reported that his left ankle will evert if he is walking on uneven surfaces on occasion, but without falls. The examiner noted that no left ankle condition or treatment was found in a review of the Veteran's STRs. The examiner also noted the Veteran's medical history of a sprained left ankle in July 2003 and reports of twisting his left ankle in VA treatment records dated in September 2009. 

The examiner opined that the Veteran's left ankle disability was less likely than not incurred in or caused by the claimed in service injury, event or illness. The examiner also opined that the left ankle disability was less likely than not proximately due to or the result of the Veteran's service connected condition. 

The examiner reasoned that his diagnosis of mild osteoarthritis is consistent with his age, body habitus and documented left ankle sprains sustained after service. The examiner noted that the Veteran's STRs do not contain any left ankle injury, treatment or condition during service. The report further stated that the Veteran's post military records show he presented twice for a left ankle sprain, once in 2003 and again in 2009. The examiner stated the radiographic findings show mild osteoarthritis that is not inconsistent with the Veteran's age. The examiner further stated that the Veteran's gait was observed and he had a slight limp, favoring the right foot "but his left leg and foot was noted to have normal gait pattern, without eversion or inversion of the foot with ambulation, normal speed and swing of the left lower extremity for his age." The report also noted the Veteran was "notably overweight with large central obesity." The examiner cited to Up to Date, stating "osteoarthritis is usually present by the age of 55 radiographically, with 80% of persons over age 55 having arthritis on examination. Other risk factors include body habitus with obesity having a 6 fold increase in arthritis in the weight bearing extremities as opposed to normal body weight. Other risk factors include prior injury of any joint." 

The examiner further reasoned that the Veteran had mild left ankle arthritis noted on imaging that was not inconsistent with or more accelerated for his age. The examiner stated "[i]f the right ankle were to aggravate the left ankle condition, then one would expect a more accelerated or worsened pattern of arthritis or left ankle instability which was not present on examination, radiographically nor in record." The examiner finally stated "the Veteran's diagnosis of left ankle arthritis is consistent with his age and body habitus, and not accelerated beyond it's [sic] normal pattern by his right ankle condition based on history, medical record, clinical evaluation and radiographic findings..."

The examiner also stated that the Veteran does not have any condition that is a result of an undiagnosed illness related to the Veteran's Gulf War service or a medically unexplained chronic multisymptom illness. The examiner stated "[t]he Veteran's left ankle condition is from a clear and specific etiology of osteoarthritis consistent with biologic aging."

Analysis

The Veteran states that he has a current left ankle disability, as a result of the antalgic gait associated with his service-connected right ankle disability. He has also reported that he has musculoskeletal problems, including left ankle pain, as a result of an undiagnosed illness, related to his service in the Persian Gulf. See February 2007 statement from the Veteran.

It is not in dispute that the Veteran has a current diagnosis for osteoarthritis of the left ankle. However, the evidence shows that osteoarthritis was not manifested in service and the Veteran does not assert (nor does the evidence show) that his left ankle osteoarthritis had its onset during service or in the first year following separation. The Veteran's STRs do not contain any indication of treatment for any left ankle disability.

The Board has considered the applicability of 38 U.S.C.A. § 1112, which provides that certain chronic diseases (including arthritis), may be presumptively service-connected if shown to have been manifested to a compensable degree within one year of discharge. However, there are no documented left ankle reports in service or within the 12 month presumptive period. Therefore, the Veteran's claim must be denied on a presumed basis under both a chronic condition and continuity of symptoms analysis. See 38 C.F.R. § 3.302(b), 3.307, 3.309.

Furthermore, both the 2013 and 2016 examiners provided a diagnosis of osteoarthritis for the Veteran's left ankle condition. Both examiners thoroughly reviewed and discussed the Veteran's medical history, conducted in-person examinations and provided detailed rationale. The 2016 examiner stated that the Veteran's left ankle condition had a "clear and specific etiology of osteoarthritis" and was not the result of any undiagnosed illness or medically unexplained multisymptom illness. Because the Veteran has been diagnosed with left ankle osteoarthritis, his left ankle disability is not a separate undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or a diagnosable chronic multisymptom illness with partially explained etiology. Thus the Veteran is not entitled to service connection under the Persian Gulf War presumption. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317

With regard to service connection as secondary to the Veteran's already service connected right ankle disability, the 2016 and 2014 examiners opined that the Veteran's left ankle osteoarthritis is less likely than not proximately due to or the result of the Veteran's service connected condition. The 2014 examiner conducted an in-person examination and thoroughly reviewed and discussed the Veteran's claim file, including medical history. The examiner opined that the Veteran did not have a disability that would be caused or aggravated by his service connected right knee or right ankle disability. The Veteran's November 2009 notice of disagreement stated that his left ankle disability is due to his antalgic gait. However, the 2014 examiner stated that his gait is not a true antalgic gait but rather a deliberate stance and walk by the Veteran to limit pain control of the ankle. 

The 2016 examiner also conducted an in-person examination and thoroughly reviewed and discussed the Veteran's claim file, including medical history, and cited to medical sources in her rationale. She stated that his mild left ankle osteoarthritis was consistent with his age, body habitus and prior post military ankle sprains, nor was it more accelerated for his age. The examiner also addressed the Veteran's statements attributing his disability to antalgic gait. She stated that his gait was observed with and without shoes and although he had a mild right favoring limp, it did not alter the pace or swing of his left ankle while walking. The examiner further opined that if the right ankle were to aggravate the left ankle condition, one would expect a more accelerated or worsened pattern of arthritis or instability, which was not present on examination, radiographically or in the record. Finally, the examiner cited to Up to Date in noting that by the age of 55, 80% of persons have osteoarthritis present radiographically. The examiner also noted that the Veteran has other risk factors present including obesity and post-service ankle sprains. 

The Board finds the 2016 and 2014 examiner's opinions most persuasive in explaining the cause of the Veteran's left ankle osteoarthritis. The Board has also considered the 2009 examiner's opinion. The Board must consider the 2009 report as a whole. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). The examiner noted in the report that the Veteran had reported that he did not have left ankle pain prior to wearing his diabetic shoes and that he felt better when not wearing them. Although the opinion appears to attribute the left ankle pain to the Veteran's right ankle disability, the rationale also attributes it, at least in part, to the diabetic shoes. Having considered the three opinions, the Board assigns more probative value to the 2016 and 2014 opinions because they provide clear and thorough diagnoses, opinions and rationale.

The Board finds that the medical evidence of record weighs against the Veteran's claim. The Board acknowledges the Veteran's belief that his current left ankle disability is secondary to his right ankle disability, to include his statements that his antalgic gait is responsible for his disability. (See, e.g., November 2009 notice of disagreement.) However, determining the cause of his current disability is a complex medical question that requires medical expertise beyond the competence of the Veteran, a lay person. 38 C.F.R. § 3.159(a); Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). As a result, the Board gives the Veteran's statements (about the cause of his ankle disability) less probative weight than the medical opinions of the December 2014 and July 2016 VA examiners, which take into consideration the Veteran's reports and his medical history.

In summary, the competent (i.e., in this case, medical) evidence of record is against the Veteran's claims. Therefore, the Board finds that the preponderance of the evidence is against the claim of service connection for left ankle disability. Accordingly, the benefit of the doubt doctrine does not apply; the appeal in this matter must be denied. 

The Board is grateful to the Veteran for his honorable service, and regrets that a more favorable outcome could not be reached.



ORDER

Entitlement to service connection for a left ankle disability, to include as secondary to the service-connected right ankle disability, and as due to an undiagnosed illness is denied. 



____________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs