Citation Nr: 18148389 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-38 816 DATE: November 7, 2018 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for a back condition is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection for a left ankle condition is reopened. Entitlement to service connection for a back condition, diagnosed as spondylolisthesis, is granted. REMANDED Entitlement to service connection for a left ankle condition, to include as secondary to service-connected residuals of right knee post partial lateral meniscectomy is remanded. FINDINGS OF FACT 1. An unappealed October 2002 rating decision denied entitlement to service connection for a back condition based on lack of nexus between the Veteran’s back condition and his military service. 2. The additional evidence associated with the claims file since the October 2002 rating decision, including July 2012 private treatment records, which provide a positive nexus opinion, relates to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a back condition. 3. An unappealed October 2002 rating decision denied entitlement to service connection for a left ankle condition based on lack of a current disability. 4. The additional evidence associated with the claims file since the October 2002 rating decision, including an April 2011 MRI and May 2016 VA examination, which note a diagnosis of degenerative arthritis of the left ankle, relates to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a left ankle condition. 5. The Veteran’s mild spondylolisthesis is related to his back injury in service. CONCLUSIONS OF LAW 1. The October 2002 rating decision, which denied the Veteran’s claim for entitlement to service connection for a back condition, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.200, 20.201, 20.302, 20.1103 (2017). 2. The additional evidence received since the October 2002 rating decision is new and material, and the claim of entitlement to service connection for a back condition is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The October 2002 rating decision, which denied the Veteran’s claim for entitlement to service connection for a left ankle condition, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.200, 20.201, 20.302, 20.1103 (2017). 4. The additional evidence received since the October 2002 rating decision is new and material, and the claim of entitlement to service connection for a left ankle condition is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for service connection for a back condition, diagnosed as spondylolisthesis, are met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to February 1994. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered, or disease contracted, in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must generally 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Determinations regarding service connection are based on a review of all the evidence of record, including pertinent medical and lay evidence. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Under certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering evidence and determining its probative value, VA considers both the competency and the credibility of the witness. See Layno, 6 Vet. App. at 469. To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 1. Entitlement to service connection for a back condition The Veteran’s STRs reflect that in September 1990 the Veteran suffered from a back strain. The Veteran was treated for lower back pain in September 1992 after lifting heavy objects. He was again treated for back pain in October 1992 after doing physical training. The Veteran was afforded a VA examination in February 2010. The VA examiner noted the Veteran had a current diagnosis of mild spondylolisthesis. The Veteran reported that his back pain began in 1990 after a fall in service. He stated that his back pain became worse in 1995 without trauma or injury. The examiner opined that it is less likely than not that the Veteran’s current back condition is related to his military service as the Veteran did not report any back problems upon separation. The examiner noted that the Veteran was seen twice in service for back pain but opined that most of his back problems began after service. The record contains a July 2012 private treatment record from the Veteran’s treating physician. The physician discussed the Veteran’s history and performed an examination. The physician noted a diagnosis of mild spondylolisthesis. The physician also noted the Veteran’s reported in-service injury of experiencing falling and injuring his back during physical training in the early 1990s. The physician opined that although she is not 100 percent certain the reported event caused the Veteran’s mild spondylolisthesis, it is at least as likely as not that the Veteran’s current back condition stemmed from the Veteran’s reported in-service injury. In his August 2013 notice of disagreement, the Veteran stated that he has suffered back pain since active duty service. When there is equipoise of probative evidence, the Veteran prevails on his claim. Here, the February 2012 VA examination provides a negative nexus opinion, stating that it is less likely than not that the Veteran’s mild spondylolisthesis is due to his service. However, the Veteran’s treating physician has indicated that it is at least as likely as not that the Veteran’s mild spondylolisthesis was caused by the in-service injury. The Board also acknowledges the Veteran’s lay statements that he has suffered severe back pain since active duty service, which supports a continuity of symptomatology. As such, the Board finds that the evidence is in relative equipoise regarding the etiology of the Veteran’s spondylolisthesis. The benefit of the doubt doctrine is for application and the claim is granted. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for a left ankle condition, to include as secondary to service-connected residuals of right knee post partial lateral meniscectomy is remanded. The Veteran contends that his current left ankle condition is due to his service-connected right knee disability, to include his leg length discrepancy and abnormal gait. A November 2009 VA examination indicates the Veteran had a leg length differential of 3 cm. A May 2010 VA treatment record indicates the Veteran was seen for a heel lift, and that he measured approximately 1-inch leg length differential, with his left leg shorter than his right. See September 2013 CAPRI. The Veteran was afforded a VA examination in May 2016. The examiner noted the Veteran’s diagnosis of degenerative osteoarthritis and chondromalacia of his left ankle and his contentions that his left ankle condition is due to his leg discrepancy and right knee condition. The examiner opined that the there is no evidence that the Veteran’s service-connected right knee condition caused the Veteran’s left ankle condition. The May 2016 examiner failed to address aggravation and an opinion was obtained in September 2016. The VA examiner opined that there is no evidence that supports the claim that a left ankle was aggravated beyond natural progression by a right knee condition. The examiner stated that x-rays show mild to moderate degenerative arthritis and chondromalacia of the left ankle which is most likely the etiology of the Veteran’s pain. The Board finds the May 2016 and September 2016 VA examiners’ opinions inadequate. In providing their opinions, the VA examiners failed to consider and address the Veteran’s contentions that his left ankle condition was caused or aggravated by his leg length discrepancy and gait. Further, although the examiners provided negative opinions as to whether the Veteran’s left ankle condition was caused or aggravated by the Veteran’s right knee condition the examiners failed to provide adequate rationale. The examiners stated that the Veteran has degenerative arthritis which is the cause of the Veteran’s pain but failed to provide an etiology opinion regarding the Veteran’s left ankle degenerative arthritis and chondromalacia. As such, a new medical opinion is warranted. The matter is REMANDED for the following action: 1. Obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran’s left ankle condition, to include degenerative arthritis and chondromalacia. If, and only if, determined by the clinician, the Veteran should be scheduled for another VA examination. The claims file, including a copy of this remand, must be made available to the clinician and the clinician should provide the following opinions: Whether it is at least as likely as not (50 percent greater probability) that the Veteran’s leg length discrepancy and gait are related to the Veteran’s service-connected right knee disability. If the Veteran’s leg length discrepancy and gait are related to his service-connected right knee disability, is it at least as likely as not (50 percent greater probability) that the Veteran’s leg length discrepancy and gait caused or aggravated the Veteran’s left ankle condition. Whether it is at least as likely as not (50 percent greater probability) that the Veteran’s left ankle condition was caused or aggravated by the Veteran’s service-connected right knee disability. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why an opinion cannot be provided. 2. After the above development has been completed, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Brandt