Citation Nr: 1804032	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  14-17 049	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to a compensable rating for a right ankle disability.

2.  Entitlement to a rating in excess of 20 percent for a left ankle disability.

3.  Entitlement to service connection for a right knee disability, to include as secondary to the service-connected left and right ankle disabilities.


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

A. Arnold, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1992 to December 1993.  

This matter came before the Board of Veterans Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke Virginia. 

The Veteran testified before the undersigned Veteran's Law Judge during an August 2017 Video Conference hearing.  The transcript of the hearing is of record.

The issue of entitlement to a compensable rating for a right ankle disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Prior to the promulgation of a decision on the appeal, the Veteran withdrew her appeal for a rating in excess of 20 percent for a left ankle disability on the record at the August 2017 Video Conference hearing.

2.  The Veteran's right knee disability was caused by the Veteran's service-connected left ankle disability.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal for a rating in excess of 20 percent for a left ankle disability have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).

2.  The criteria for service connection for a right knee disability have been met.  38 U.S.C. § 1110, 1157, 5107 (2012); 38 C.F.R. § 3.102, 3.310(a) (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VCAA

With respect to the Veteran's issues on appeal, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.

II. Withdrawal

An appeal may be withdrawn by an appellant or by his representative.  38 C.F.R. § 20.204 (a).  Except when made on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204(b)(1).  An appeal withdrawal is effective when it is received by the Board before it issues a final decision.  38 C.F.R. § 20.204 (b)(3).  Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204 (c).

At the August 2017 Video Conference hearing, the Veteran stated on the record that she wished to withdraw the issue of entitlement to a rating in excess of 20 percent for a left ankle disability.  Thus, there are effectively no longer any remaining allegations of error of fact or law concerning the issue of an increased rating for the left ankle disability.  See 38 U.S.C. § 7105 (d)(5) (2012).  Accordingly, the Board will dismiss the appeal.

III. Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C.A § 1110; 38 C.F.R. § 3.303(a).  

Secondary service connection may be granted for disability that is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310(a).  The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995).

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 claimant.  38 U.S.C.A. § 5107 (West, 2004); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  For benefits to be denied, "the preponderance of the evidence must be against the claim."  Id. at 54.

In the present case, the Veteran contends that her right knee disability is caused or aggravated by her service-connected left and right ankle disabilities.  First, the Board finds that the Veteran has a current right knee disability.  Private treatment records from October 2010 document diagnoses of severe chondromalacia of the patella and right knee joint effusion.  Second, the Board notes that the Veteran is service-connected for right and left ankle disabilities.  

The Veteran's medical records indicate that the Veteran has an antalgic gait.  VA treatment records from April 1994 record that she had difficulty walking and ambulated with a limp.  Private medical treatment records from April 2014 reference the Veteran's abnormal gait pattern, characterizing it as antalgic.  The April 2014 private medical records also document that the provider advised the Veteran that her right knee symptoms can be exacerbated by her left ankle pain, as it causes an antalgic gait.

A VA examination of the left ankle was provided in July 1996.  The examiner noted that the Veteran had a normal gait at that time but observed that she did favor the left ankle and walked with a limp.

The Veteran had a VA examination in August 2012 that evaluated whether her right knee disability was caused or aggravated by her left ankle disability.  The examiner found that the right knee disability was not likely caused by the left ankle disability.  As a rationale, the examiner stated that there is no medical literature that supports the Veteran's contention and that abnormal gait would have to be present over many years for injury to one lower extremity to impact the opposite limb.  The examiner also noted that increased body weight does damage to both lower extremities and magnifies risk factors.  The examiner did not consider the impact of the Veteran's right ankle disability on her right knee.

The Veteran has submitted an October 2017 statement from a private medical provider which finds that her right knee disability is caused by her service-connected left knee disability.  The provider noted the Veteran's 1994 left ankle diagnosis of osteoarthritis dessicans and stated that it is at least as likely as not that the Veteran's right knee disability was exacerbated by her ankle pain and subsequent abnormal gait.  

As discussed, the Veteran contends that her right knee disability is caused or aggravated by her service-connected right and left ankle disabilities, and does not contend that she is entitled to direct service connection.  The Board will therefore consider whether she is entitled to service contention on a secondary basis.

The Veteran has testified that she has walked with a limp and had pain and swelling in her ankles since her injury in 1993.  The Board notes that the Veteran is competent to report lay-observable symptoms such as limping and the time of its onset and accords her statements significant probative weight.  See Layno v. Brown, 6 Vet. App. 465, 470 (lay testimony is competent to prove that a claimant exhibited certain symptoms and the time period that those symptoms appeared).  The Board also notes that this testimony is consistent with the Veteran's medical records.  

When there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions.  See Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993).  Moreover, the Board may give greater probative weight to one examiner's opinion over another's based on its reasoning and whether the examiner reviewed prior clinical records and other pertinent evidence.  Gabrielson v. Brown, 7 Vet App. 36 (1994); see also Prejean v. West, 13 Vet. App 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (in assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence).

Upon review of the August 2012 opinion and the evidence of record the Board finds the opinion to be inadequate for several reasons.  In addressing the question of whether the Veteran's left ankle condition affected her right knee, the August 2012 VA examiner stated that an abnormal gait would have to exist for many years for one joint to affect another and not just for a few weeks or months in essence implying the Veteran has had an abnormal gait for a short period of time.  However, the Veteran's testimony and the medical evidence of record indicate that the Veteran has walked with an abnormal gait for many years.  It is therefore not clear to the Board that the examiner considered the Veteran's statements regarding the onset and persistence of her symptoms.  

Further, the VA examiner also stated that weight can affect joints and magnify the risk factors described in the report.  While the record does show that the Veteran's weight may be considered to be high, the report does not state, however, whether the examiner found obesity to be a factor in this instance.  The August 2012 examiner did not make a specific finding that the Veteran was either obese or that her specific weight would be the cause of her right knee disability.  

In addition, in the knee disability questionnaire that accompanies the medical opinion, the only knee and lower leg diagnosis the examiner lists is shin splints, but the Board notes that the Veteran's medical records indicate that she was diagnosed with severe chondromalacia of the patella and right knee effusion in October 2010, prior to August 2012 VA examination.  It is therefore not clear to the Board that the examiner considered the Veteran's diagnosed knee conditions in formulating the nexus opinion.  As the report lacks a clear rationale, and it is not clear that the examiner considered either the Veteran's lay statements or her diagnosed knee disabilities, the Board finds that the August 2012 VA examination is inadequate and entitled to little probative weight.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).


As discussed above, the Veteran submitted an opinion from her private medical provider that found that her right knee disability was caused by her service-connected ankle disabilities.  The opinion states that this is the result of the gait abnormalities caused by the Veteran's ankle disabilities.  The opinion also notes the Veteran's 1994 left ankle diagnosis of osteoarthritis dessicans, indicating the source of the ankle pain mentioned.  There is no evidence that the private medical provider was not competent.  Moreover, the opinion is supported by evidence of record, as the record shows that the Veteran has had an antalgic gate for years and shows that the Veteran had been warned of the effects of the altered gait could have on her right knee.  The Board, therefore, places great probative value on the opinion.  

In sum, as the August 2012 VA examination has been found to be inadequate, the only competent medical opinion of record regarding whether the Veteran's right knee disability is caused by or related to her service-connected ankle disabilities is the opinion submitted by her private medical provider.  The Board therefore finds that the competent medical evidence of record indicates that the Veteran's right knee disability is caused by her service-connected left ankle disability and that service connection for a right knee disability is warranted.  38 C.F.R. § 3.310(a).


ORDER

The issue of entitlement to a rating in excess of 20 percent for a left ankle disability is dismissed.

Service connection for a right knee disability, secondary to the Veteran's service-connected left ankle disability, is granted.
REMAND

The Board finds that additional development is necessary prior to adjudicating the remaining issue on appeal.  

The Veteran testified at the August 2017 hearing that her right ankle disability has worsened in severity since the August 2012 examination.  While a VA ankle examination was conducted in April 2016, the Board finds that it focused on the Veteran's left ankle disability and did not include range of motion testing of the right ankle.  The Veteran has also submitted private treatment records which include right ankle x-ray findings, including results from October 2017 showing medial joint space narrowing with osteophyte formation.  A new examination is therefore required to determine the current severity of the Veteran's right ankle disability.  See Snuffer v. Gober, 10 Vet. App. 400 (1997).

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an appropriate VA examination to determine the current level of severity of her right ankle disability.  The claim file should be made available for review, and the examination report should reflect that such review occurred.

Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. 

The examiner should also test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

A complete rationale for all opinions rendered should be provided.

2.  The examination report must be reviewed to ensure it is in complete compliance with the directives of this remand.  If a report is deficient in any manner, the AOJ must implement corrective procedures.

3.  If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures.

 
The appellant 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 matter must be afforded expeditious treatment.  The law requires that all issues 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. §§ 5109B, 7112 (2012).



______________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs