Citation Nr: 1801949 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 10-04 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a right below the knee amputation, claimed as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from December 1970 to December 1972 and from February 1973 to November 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, in which the RO, in pertinent part, denied a claim of service connection for a right below the knee amputation, including as due to a service-connected right knee disability. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in July 2013. A transcript of this proceeding has been added to the record. In October 2014 and April 2017, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. FINDING OF FACT After affording the Veteran the benefit of the doubt, his right below the knee amputation was proximately due to or the result of a fall sustained when the Veteran's right knee gave out. CONCLUSION OF LAW The criteria for service connection for right below the knee amputation, secondary to his service connected disabilities, have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, 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. § 5107 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (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. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a) (2017). Additional disability resulting from the aggravation of a non-service-connected disability by a service-connected disability is also service-connected. 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran seeks service connection for a right below knee amputation. The essence of his claim is that his service-connected right knee gave way, causing him to fracture his right fibula and the fifth metatarsal bone of his right foot. Specifically, during the July 2013 Board hearing he testified that casting of the fracture was needed and that the fractures exacerbated his diabetic foot problem (Charcot breakdown), resulting in amputation. Initially, the Board notes that the Veteran is service connected for several disabilities including bilateral knee degenerative joint disease as well as bilateral knee instability. Also, VA treatment records confirm that the Veteran fell in July 2008 when his "knee gave out" and he underwent right below the knee amputation in September 2008. In a January 2009 statement from Dr. B.M.R., a VA physician, it was noted that the Veteran was seen in July 2008 for swelling and tenderness of the right foot. He reported a history of twisting his right foot when his right knee gave out. X-ray revealed a 5th metatarsal bone fracture. There was no definite radiographic evidence of osteomyelitis. He was placed in a cast but the treatment course was complicated by infection and he sustained a right below the knee amputation in September 2008. The Veteran was afforded a VA examination in October 2009. Significantly, the examiner opined that it was less likely than not that the Veteran's right below the knee amputation was related to his military service. Instead, the Veteran's right leg amputation was caused by a complication of his nonservice-connected diabetes mellitus which, in turn, was complicated by the presence of a foot ulcer, Charcot joint, and osteomyelitis of the fibula. The Veteran was afforded a second VA examination in January 2011 and in a March 2011 addendum opinion, the examiner opined that it was less likely than not that the Veteran's right below the knee amputation was related to his service-connected right knee disability. It was noted that the Veteran was diagnosed with diabetes in 1996 and, in July 2009, he fell, fracturing his distal right fibula. He then developed a foot infection which progressed to osteomyelitis, necessitating a below the knee amputation in September 2009. He had been diagnosed with Charcot of the feet in 2006. Charcot joint is a chronic, destructive, degenerative condition of joints, typically due to lack of proprioception in the feet and ankles secondary to diabetes. It is likely that his instability walking, which led to the fracture, was due to this condition. It is also likely that the resultant infection after fracturing the right distal fibula with subsequent development of osteomyelitis was due to his diabetes. The examiner concluded that it was less likely than not that any service-connected right knee disability is directly responsible for the events leading up to his right below the knee amputation. In the October 2014 Board remand, it was noted that both the October 2009 and March 2011 VA opinions were inadequate as both were based on an inaccurate factual premise, namely that the Veteran sustained a fracture of his right fibula and that he developed osteomyelitis of his right fibula as a result. It appears that both examiners reported what the Veteran told them, not what is of record in the Veteran's VA and private treatment records. In that vein, the Board noted that none of the imaging reports of record corroborated the Veteran's assertion that he fractured his right fibula as a result of his fall and that the preoperative diagnosis made on September 17, 2008, was of right foot (not right fibula) osteomyelitis with abscess. The Board also noted that a June 30, 2008, VA x-ray of the Veteran's right foot showed marked deformity with dislocation of the metatarsals relative to the tarsals and rocker bottom deformity and well corticated fragment at the base of the fifth metatarsal, which may be avulsed fragment. A July 29, 2008, VA x-ray of the Veteran's right foot contained a clinical history of right Charcot foot with closed ulcer; recent onset of tender area in the lateral aspect of the foot after injury to the foot; to rule out fracture versus abscess. The report showed marked deformity of the right foot with dislocation of the metatarsals relative to the tarsals and rocker bottom deformity and a well corticated fragment at the base of the fifth metatarsal, which may be avulsed fragment. As such, the Board noted in the October 2014 remand that it was unlikely that the Veteran sustained a fracture of his right fifth metatarsal in July 2008. This was based on the fact that the Veteran allegedly fell in July 2008 and both the pre-fall June 2008 and post-fall July 2008 x-rays showed a well corticated fragment at the base of the fifth metatarsal. The Board also noted that the private medical evidence of record clearly established that casting of the foot was recommended as a result of persistent deformity involving the right foot, diagnosed in August 2008 as right foot Charcot arthropathy, acute or subacute, not as a result of a fracture of the right fifth metatarsal. As such, the Board remanded the claim for a medical opinion that took into consideration the accurate history as it pertains to the events leading up to the Veteran's September 17, 2008, right below knee amputation. The October 2014 Board remand specifically requested that the clinician providing this etiological opinion specifically address certain specified record evidence in his or her opinion, to include treatment records contemporaneous to the Veteran's alleged fall prior to his right below the knee amputation at a private facility in September 2008. Unfortunately, as noted in the April 2017 Board remand, a review of the August 2015 VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) and opinion provided by the VA examiner indicates that she did not answer all of the questions asked by the Board in its October 2014 remand. Following physical examination of the Veteran, the August 2015 VA examiner opined that it was less likely than not that the Veteran's right below the knee amputation was related to his service-connected right knee disability. The rationale for this opinion was a review of the records showing severe peripheral vascular disease, poorly healing right foot ulcers, and severe foot deformities which resulted in "pathologic fractures of the forefoot and midfoot with Charcot [joint] resulting in total dislocation of the metatarsal joints. According to the August 2015 VA examiner, this pathology was in no way related to "the Veteran's service-connected right knee disability." However, the August 2015 VA examiner did not address the record evidence specified in the Board's October 2014 remand. Thus, the Board found that, on remand, the August 2015 opinion should be returned to the examiner who provided it in order for her to provide an addendum opinion addressing the specific evidence noted in the October 2014 remand and whether the Veteran's right below the knee amputation is related directly to active service. Specifically, the examiner was asked "state whether he or she reviewed VA x-rays of the Veteran's right foot dated on June 30, 2008, and July 29, 2008, his VA treatment records dated from July 2008 when he allegedly fell as a result of his right knee, and the private treatment records associated with treatment following his alleged July 2008 fall up to his September 17, 2008, right below the knee amputation." The examiner was also asked to answer the following questions in her addendum opinion: (a) did the Veteran sustain a fracture of either the right fifth metatarsal or the right fibula in July 2008?; and (b) why was the Veteran's right foot placed in a cast in 2008? Pursuant to the April 2017 Board remand, an addendum medical opinion was obtained in May 2017. Significantly, the examiner continued her opinion that the Veteran's right below the knee amputation was related to his nonservice-connected peripheral vascular disease. In support of this opinion, the examiner noted that she had reviewed the entire claims file but did not indicate specific review of the "VA x-rays of the Veteran's right foot dated on June 30, 2008, and July 29, 2008, his VA treatment records dated from July 2008 when he allegedly fell as a result of his right knee, and the private treatment records associated with treatment following his alleged July 2008 fall up to his September 17, 2008, right below the knee amputation" as directed in the April 2017 Board remand. The examiner also found that the Veteran did, in fact, sustain a tibial and metatarsal fracture in July 2008 but did not state whether the Veteran's right foot was placed in a cast in 2008. In a December 2017 Informal Hearing Presentation, the Veteran's representative wrote that the Veteran is competent to state that he fell in July 2008 due to his right knee giving out and that there is no evidence contradicting this assertion. The Veteran's representative also wrote that the VA opinions focus on the causation of the Veteran's right below the knee amputation and fail to consider aggravation. Specifically, the VA opinions fail to discuss how the Veteran's nonservice-connected vascular condition impacted the fact that the Veteran was service connected for bilateral knee arthritis and instability at the same time that he was placed on limited weight bearing status due to his nonservice-connected right foot ulcers. Initially, the Board finds that the Veteran is competent to describe the nature of his fall in July 2008. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran's lay statements are found to be credible because they have been consistent and are confirmed by the available medical records. Specifically, July 2008 VA treatment records a history of twisting his right foot when his right knee gave. As such, the Board finds that the Veteran's July 2008 fall was due, in part, to his service-connected right knee disability which included instability. The Board also finds that the medical evidence demonstrates that, while the Veteran's right below the knee amputation was primarily due to his nonservice-connected foot ulcers, the July 2008 fall certainly contributed to the Veteran's below the knee amputation. Specifically, the January 2009 statement from Dr. B.M.R. shows that the Veteran was placed in a cast due to the fall but that the treatment course was complicated by infection which resulted in a right below the knee amputation in September 2008. While the January 2009 statement from Dr. B.M.R. is not a definitive medical nexus opinion, the Board will afford the Veteran the benefit of the doubt and grant the Veteran's claim for service connection. Significantly, the negative nexus opinions obtained in this case are inadequate due to their failure to consider the aggravation aspect of the Veteran's claim. Furthermore, the VA examiners have been non-responsive to the Board remand requests. At this point, the Board declines to remand for an additional opinion as such would resemble a fishing expedition for negative evidence, which, in view of the available medical evidence, is not necessary. Indeed, obtaining such additional evidentiary development in this instance would only result in additional delay with no benefit to the Veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-04, 69 Fed. Reg. 59,989 (2004). Giving the Veteran the benefit of doubt, the Board finds that it is as least as likely as not that he fell due to symptoms associated with his service connected bilateral knee disability, and that such fall caused his right below the knee amputation. ORDER Service connection for a right below the knee amputation is granted. ____________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs