Citation Nr: 1754440 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-02 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left ankle disorder. 2. Entitlement to service connection for a back disorder. 3. Entitlement to a compensable rating for bilateral conjunctival injection with left eye nasal pinguecula (eye disability). REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to February 1975. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned at a Board hearing held via video-conference in May 2017; the transcript of the hearing is of record. The issue of entitlement to a compensable rating for bilateral conjunctival injection with left eye nasal pinguecula is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's residuals of left ankle fracture, diagnosed as degenerative and arthritic changes, are related to service. 2. The evidence is at least in equipoise as to whether the Veteran's back disorder, diagnosed as diagnosed as degenerative and arthritic changes, is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle disorder have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a back disorder have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this case, neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Service connection may 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 . Service Connection Analysis for Left Ankle Disorder The Veteran seeks service connection for a left ankle disorder; the fact that he has a current left ankle disorder is undisputed. During the May 2017 Board hearing, the Veteran testified that he injured his left ankle in service while being stepped on by another individual while playing volleyball. He reported that it was summer and he was placed in a cast and given crutches. The Veteran reported current symptoms of decreased motion in the ankle joint and weakness. Service treatment records in June 1973 reflect that the Veteran was seen for a possible fracture. The Board notes that the June 1973 record does not indicate which joint was evaluated; however, it appears that it was an ankle injury. In this regard, a June 14, 1973 service treatment record noted that the x-rays were of poor quality and would be repeated; as such, the physician noted that the injury would be treated as a sprain. The Veteran was provided an acewrap, crutches, and Tylenol. On June 18, 1973, it was noted that the Veteran's sprain was resolving and on June 25th, the Veteran discontinued the use of crutches. He was placed on restricted duty for 1 week. On June 27, 1973, the Veteran reported for complaints of pain in the lateral fibula-talar portion of the joint. The Board notes that the fibula and tibia form the ankle joint. The Veteran reported instability, tenderness, and some swelling. In July 1973, it was noted that a cast was removed and swelling and tenderness was gone. The Veteran was noted, however, to have decreased range of motion, but full dorsiflexion. Resolving any doubt in the Veteran's favor, the documented injury in the STRs appears to concern the left ankle. The Veteran has not been afforded a VA examination regarding his left ankle disorder. However, the evidence of record includes a July 2017 report from Dr. F. G., which discussed the nature and etiology of the Veteran's left ankle disorder. Specifically, during the evaluation, the Veteran again reported sustaining a fracture to the left ankle during service. He reported continued left ankle pain characterized as severe and shooting. The Veteran also reported that he re-injured the ankle in 2004 and underwent surgery. Dr. F. G. then indicated that there was a history of ankle fracture treated with cast application during military service. Although the fracture was believed to have healed, the Veteran had residual osteoporosis, which "likely" contributed to a subsequent fracture. The doctor also noted that residuals of ankle fracture were now present by reason of the two fractures. VA treatment records include a June 2010 whole body bone scan, which showed, in pertinent part, degenerative and arthritic changes in the feet. The Board finds that the evidence discussed above is in equipoise as to whether the Veteran's left ankle disorder is etiologically related to service. The Veteran has been found to have sustained an injury of his ankle in service and reported symptoms of weakness and decreased range of motion. Further, Dr. F. G. indicated that although the Veteran's in-service fracture was believed to have healed, the Veteran had residual osteoporosis, which "likely" contributed to a subsequent fracture in 2004. Dr. F.G. is identified as an orthopedic surgeon and his opinion is considered competent evidence. However, his use of the word "likely" suggests an equivocal opinion and does not rise to VA's legal standard of "at least as likely as not." Nevertheless, when considering the medical opinion which was rendered after a review of the record, along with the remaining evidence in the claims file, to include the Veteran's probative lay statements, the Board finds that the evidence taken as a whole is in equipoise as to whether the Veteran's in-service fracture caused residual osteoporosis, which is related to the current left ankle disorder. For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's left ankle disorder is related to service. As such, the Board finds that service connection is warranted. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Service Connection Analysis for Lumbar Spine Disorder The Veteran seeks service connection for a lumbar spine disorder; the fact that he has a current lumbar spine disorder is undisputed. During the May 2017 Board hearing, the Veteran reported having two back injuries in service. The first incident was noted to occur after a tank that the Veteran was riding in hit an object and threw the Veteran against a metal tube. He stated that he hit his back in precisely the same location where he was operated on after service separation in 2004. He indicated that he did not seek treatment at the time because he was taking exams. The second incident was a motor vehicle accident in a Jeep and the Veteran reported that he hit a snowbank and may have sustained further injury to his back. Service treatment records are negative for any complaints, diagnoses, or treatment for a back disorder. However, a November 1974 service treatment record confirms that the Veteran was involved in an automobile accident and sustained a concussion. The Veteran has also submitted statement from fellow service members that were in the tank with him at the time of the accident. These statements, dated in November 2010 and October 2011, indicate that these individuals were also jarred from the tank hitting a pothole and noted that the Veteran injured his back at that time. The Board accepts the Veteran's account of the in-service back injury as credible evidence. The DD Form 214 lists the Veteran's military occupational specialty as "armor HQ." The Veteran indicated that he served in a support company, which was a squad that supported a tank battalion. Buddy statements have been submitted corroborating the described tank incident. The Board finds that the in-service injury is consistent with the circumstances of the Veteran's service, and there is no reason to doubt his testimony. See 38 C.F.R. § 1154 (a) (2017). Post-service VA treatment records include a July 2004 VA note where the Veteran complained of "intermittent" back problems since shortly after leaving service in the 1970s. Thereafter he continued to do heavy lifting and heavy manual work and subsequently developed right lumbar and left sciatic pain. The Veteran has not been afforded a VA examination regarding his back disorder. However, the evidence includes the July 2017 report from the orthopedic surgeon Dr. F. G., which discussed the nature and etiology of the Veteran's back disorder. During the evaluation, the Veteran again reported injuring his back in a tank accident. He reported that he continued to have back pain since service. Dr. F. G. noted that the Veteran had back surgery in 2004, and that a June 2010 bone scan revealed degenerative and arthritic changes of the mid and lower thoracic spine. Dr. F. G. indicated that there was a causal nexus of the Veteran's subsequent development of intervertebral disc herniation treated with L5-S1 laminectomy discectomy and arthrodesis and recurrent low back injuries and low back pain during his active duty military career. According to Dr. F. G., the Veteran was exposed to multiple recurrent instances of low back pain associated with a tank in which he was an occupant striking a ditch or hole. He also had a history during his term of active duty of a Jeep accident with back. These incidents would have weakened collagen and elastin fibers in the annulus of the intervertebral disc at the L5-S1 level and were significant in the development of disc herniation. The Board finds that the evidence discussed above is in equipoise as to whether the Veteran's back disorder is etiologically related to service. The Veteran has been found to have sustained an injury to his back in service and reported symptoms intermittent back pain since service separation. Further, the July 2017 report from Dr. F. G. indicated that there was a causal nexus of his subsequent development of intervertebral disc herniation treated with L5-S1 laminectomy discectomy and arthrodesis and recurrent low back injuries and low back pain during his active duty military career. As stated, Dr. F.G. is identified as an orthopedic surgeon and his opinion is considered competent evidence. However, Dr. F.G. only stated that there is a causal nexus and did not opine that it was "at least as likely as not" related to the low back injury and pain during service. Nevertheless, when considering the orthopedic surgeon's medical opinion which was rendered after a review of the record, along with the remaining evidence in the claims file, to include the Veteran's probative lay statements, the Board finds that the evidence taken as a whole is in equipoise as to whether the Veteran's in-service injury led to the subsequent development of his current back disorder. For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's back disorder is related to service. As such, the Board finds that service connection is warranted. 38 C.F.R. § 3.102. ORDER Service connection for a left ankle disorder, diagnosed as degenerative and arthritic changes, is granted. Service connection for a back disorder, diagnosed as degenerative and arthritic changes, is granted. (CONTINUED ON NEXT PAGE) REMAND The Veteran maintains that his service-connected eye disability is more severe than what is contemplated by the currently assigned noncompensable rating. During the May 2017 Board hearing, the Veteran testified that his eyes were "getting worse every year." See id at pg. 5. The Board notes that the Veteran was last afforded a VA eye examination in March 2011, over six years ago. As such, a remand is necessary so that the Veteran may be afforded a new VA examination to ascertain the current severity of his service-connected eye disability. Moreover, in a July 2017 private medical evaluation from Dr. F. G., it was noted that the Veteran received Social Security Administration (SSA) disability benefits. The United States Court of Appeals for Veterans Claims (Court) has held that where SSA disability benefits have been granted, a remand to obtain SSA records is required. See Quartuccio v. Principi, 16 Vet. App. 183, 187-88 (2002) (stating that "the possibility that the SSA records could contain relevant evidence. . . cannot be foreclosed absent a review of those records."). Accordingly, the case is REMANDED for the following actions: 1. Request from the SSA, all records pertinent to the Veteran's claim for Social Security disability benefits, as well as medical records relied upon concerning that claim. If the search for such records yields negative results, then notify the Veteran and place a statement to that effect in his record. 2. Then, schedule the Veteran for an examination to determine the current severity of his eye disability. The claims folder must be made available to, and be reviewed by, the examiner in conjunction with the examination, and that review must be noted on the examination report. All tests deemed necessary should be conducted and the results reported in detail. 3. Then readjudicate the claims. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claims to the Board. The Veteran has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs