Citation Nr: 18154894 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 11-23 965A DATE: December 4, 2018 ORDER Entitlement to service connection for residuals of a right ankle injury is denied. REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for residuals of a right knee injury is remanded. FINDING OF FACT The evidence of record fails to support a finding that the Veteran exhibits any current residuals of a right ankle injury. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a right ankle injury have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the U.S. Navy from June 1967 to June 1969. The Board notes that the Veteran also has a claim for entitlement to service connection for diabetes mellitus, type II, claimed as due to in-service herbicide exposure. On August 16, 2018, the Federal circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As this appeal contains at least one issue that may be affected by the resolution of Procopio, the Board will “stay” or postpone action on this matter. 1. Entitlement to service connection for residuals of a right ankle injury The Veteran seeks entitlement to service connection for residuals of a right ankle injury. 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. §§ 1110, 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). By way of background, at an induction examination for the National Guard in 1965, the Veteran was assessed as normal, and denied arthritis, and any bone or joint deformities. Similarly, upon examination in August 1965, May 1967, and upon separation in May 1969, the Veteran was assessed as normal, and denied a bone or joint deformity and arthritis on report of medical history forms. The Veteran’s entrance examination for the National Guard in 1977, also assessed him as normal with no mention of bone or joint symptomatology present. Treatment records from June 1980 note that the Veteran complained of right ankle swelling and pain, was given an x-ray which did not reveal arthritic changes of the ankle. Rather, the Veteran was assessed with “mystery poly arthritis? Rheumatoid variant.” Orthopedic treatment records from June 2014, note that the Veteran described frequently rolling his ankle, with no actual diagnosis or treatment plan included. At the Veteran’s August 2017 Board hearing he reported twisting his ankle a few times while in the Navy swinging from upper to lower deck. He added that while seeking treatment, he was just given pills or muscle relaxers. The Veteran stated that during his separation examinations he failed to disclose all in-service incidences or injuries as he just wanted to be discharged from service. In connection with this claim, the Veteran underwent VA examination in April 2018, which the examiner determined that the Veteran did not have a current diagnosis associated with his right ankle. Specifically, the Veteran reported previous incidences of twisting his right ankle and of right ankle pain after physical overuse with symptoms resolving upon conservative and/or self-treatment. The examiner added that the Veteran admitted to never being medically diagnosed with a chronic or pathologic condition of the right ankle, nor had he undergone any specific diagnostic studies or treatment of such. Moreover, the Veteran did not know of any acute or chronic medical condition of the right ankle which he presently exhibited, and he did not wish service connection for the right ankle to be submitted. Lastly, the examiner added that the Veteran wished to withdraw the claim for right ankle service connection. However, the Board does not find this to be a valid withdraw of claim, as the Veteran had not communicated this information directly to VA for adjudication purposes. 38 C.F.R. § 20.204 (2017). In short, although sympathetic to the Veteran’s claim for service connection, in the absence of medical evidence demonstrating that the Veteran has a right ankle disability, or functional impairment of the right ankle to the extent of causing impairment of earning capacity, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In finding so, the Board notes that the Veteran’s description of his previous symptoms and functionality to be credible and competent evidence pertinent to the claim, particularly as it relates to the Veteran’s consistent report of frequent rolling of his ankle and pain from running and jumping during service. At one point, he appeared to report ankle rolling during the appeal period. However, as it pertains to the limited inquiry as to whether the Veteran’s injury and symptoms in service resulted in a currently manifested right ankle condition which at the very least results in causing compensable impairment of earning capacity, the lay and medical evidence has not described any objective functional impairment of the right ankle during the appeal period to the point of causing impairment of earning capacity. See generally 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5003, and 5270-5274. Consequently, because the first element of service connection -presence of a current disability-has not been satisfied, the Veteran’s claim of entitlement to service connection for residuals of a right ankle injury must be denied. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a low back condition is remanded. 2. Entitlement to service connection for residuals of a right knee injury is remanded. The Veteran underwent VA examination for his back and knee in April 2018, where the examiner assessed a diagnosis of degenerative joint/degenerative disc disease for his back. Contrary to this, the examiner found no diagnosis for his right knee despite later stating that the Veteran experienced premature progressive onset osteoarthritis in both knees, with the left being worse than the right. The examiner ultimately determined that both conditions were less likely related to service as there was no medical evidence of trauma, but more likely caused by a genetic or familial pre-disposition to degenerative arthritis. The examiner added that the Veteran’s history of non-service-connected gouty arthritis may have also been a contributing factor. The Board finds this examination to be inadequate as the core of the examiner’s rationale for not considering military service as a causative factor is due to the lack of corroborating medical evidence of trauma and the lack of notation in the Veteran’s service treatment records. Once VA undertakes a duty to provide a medical examination, due process requires an adequate medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, a remand is necessary for another examination. The examiner should provide adequate rationale for any opinion rendered. The matters are REMANDED for the following action: 1. Associate with the claims file any outstanding VA and private treatment records. 2. Return the Veteran’s claims file to the previous VA examiner to provide an addendum opinion. The examiner should specifically determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back and/or right knee disability its onset or is etiologically related to the Veteran’s period of active service, to include the cumulative effects of running, jumping, and a reported history of multiple incidences where he fell, twisted his knee, and from general heavy lifting, which the examiner is to accept as true even though undocumented. The examiner is advised that a lack of medical evidence is insufficient rationale to support a negative nexus opinion. The mere absence of evidence does not equate to unfavorable evidence. However, the examiner is free to comment as to whether the mechanism of injury described by the Veteran was sufficiently severe to result in any current abnormalities of the low back and/or right knee. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel