Citation Nr: 18159528 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-58 777 DATE: December 19, 2018 ORDER Entitlement to service connection of arthritis, right ankle disorder is denied. Entitlement to service connection of arthritis, left ankle disorder is denied. Entitlement to service connection of right knee disorder is denied. Entitlement to service connection of left knee disorder is denied. Entitlement to service connection of sleep apnea syndrome is denied. REMANDED Entitlement to service connection of hypertensive vascular disease, to include hypertension and isolated systolic hypertension, is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran’s currently diagnosed arthritis of the right ankle had its onset in active service or is causally connected to active service. 2. The weight of the evidence is against finding that the Veteran’s currently diagnosed left ankle disorder had its onset in active service or is causally connected to active service or to a service-connected disability. 3. The weight of the evidence is against finding that the Veteran’s currently diagnosed right knee disorder had its onset in active service or is causally connected to active service or to a service-connected disability. 4. The weight of the evidence is against finding that the Veteran’s currently diagnosed left knee disorder had its onset in active service or is causally connected to active service or to a service-connected disability. 5. The weight of the evidence is against finding that the Veteran’s currently diagnosed sleep apnea syndrome had its onset in active service or is causally connected to active service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection of arthritis of the right ankle have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection of arthritis, left ankle disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection of right knee disorder have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310. 4. The criteria for entitlement to service connection of left knee disorder have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310. 5. The criteria for entitlement to service connection of sleep apnea syndrome have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veteran’s Appeals (Board) from a February 2016 rating decision of a Department of Veteran’s Affairs (VA) Regional Office (RO). The Veteran did not request a hearing. Service Connection of Right Ankle Disorder The Veteran asserts that his current arthritis right ankle disorder is the result of his in-service fall from a truck in May 1982 (11/29/2016 Form 9, p. 1). Establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The first two elements of service connection of the Veteran’s right ankle disorder have been met. The Veteran has currently diagnosed arthritis in his right ankle (1/23/2016 C&P Exam, p. 2). A right ankle injury was also documented in his military treatment record (9/2/2015 STR-Medical, pgs. 17-22). In May 1982, the Veteran was working in the back of a truck during a night firing mission, lost his balance and fell off the truck bed, injuring his right hand and right ankle. He was diagnosed with “contusion and slight sprain, right ankle” (9/2/2015 STR-Medical, pg. 22). With regard to the third element, nexus between the current disability and the in- service injury, in January 2016, a VA examiner opined that the Veteran’s current right ankle disorder is not at least as likely as not related to an in-service injury, event, or disease. The January 2016 examiner opined that Veteran’s in-service injury, listed as a slight sprain, healed without residuals. The examiner opined that the Veteran’s weight and post-service trauma to the left ankle are consistent with the cause of the Veteran’s current ankle symptoms, therefore the ankles are not at least as likely related to an in-service injury. Again, the examiner found against a nexus, reasoning that the Veteran’s weight and post-service injury to the left ankle were the cause of the Veteran’s right ankle disorder (1/23/2016 C&P Exam, p. 10). The examiner’s opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also of record, and supporting the examiner’s conclusion, is a June 2012 medical progress note indicating that the Veteran’s severe obesity clearly plays a role in his ankle and knee pain and his exercise limitation (2/18/2016 Medical Treatment Record -Non-Government Facility, p.21). The Board concludes that, although the Veteran has a current diagnosis of right ankle arthritis, and the record shows that an in-service injury occurred, the preponderance of the evidence, specifically the January 2016 medical opinion and the June 2012 progress note, weighs against finding that the Veteran’s diagnosis of the current right ankle disorder began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Board acknowledges that arthritis is a chronic disease, 38 C.F.R. § 3.309 (a), that may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. However, the record does not support that the Veteran’s right ankle symptoms manifested during the presumptive period, therefore a presumption of service connection cannot be made. Moreover, the weight of the record, to include the lay evidence, is against a finding of continuity of symptomatology. Indeed, no complaints or treatment are seen until years after service, following a post-service injury. Moreover, in a report of medical history completed after the in-service fall from the truck, the Veteran denied any relevant problems. Based on the above, the Board finds that a preponderance of the evidence is against the claim of service connection for arthritis, right ankle disorder. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the Veteran’s claim of service connection of arthritis, right ankle disorder is denied. Service Connection of Left Ankle Disorder, to Include Secondary Service Connection to Right Ankle Disorder The Veteran asserts that his arthritis, left ankle disorder, is secondary to his right ankle disorder. In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The January 2016 VA examiner acknowledged arthritis of the left ankle (1/23/2016 C&P Exam, p. 2) and that the Veteran had left ankle trauma in-service, per the Veteran’s reported history. However, it was noted that review of the records failed to show injury on the left. Moreover, he had a fracture after service (1/23/2016 C&P Exam, p. 10). The examiner opined that the Veteran’s post service trauma to the left ankle and his weight are the cause of his current symptoms. While the Veteran believes that his left ankle condition is proximately due to the right ankle disability (11/29/2016 Form 9, p. 1), he is not competent to provide a nexus opinion in this case, and in any event service connection on a secondary basis is precluded because there is no service-connected right ankle disability. Additionally, the probative evidence of record is against finding either a left ankle disorder or injury in-service or a link between the current left ankle condition and service. In this regard, the Board acknowledges the Veteran’s statements that his in-service fall from the truck caused injury to his left ankle. However, the reports of treatment contemporaneous to the incident refute that assertion, as they only indicate right ankle injury. Moreover, no manifestations of a chronic disability to the left ankle are shown within the first post-service year, and no showing of continuity of symptomatology is demonstrated. In this regard, the Board again calls attention to the December 1982 report of medical history, completed after the fall from the truck, in which relevant complaints were denied. For all the above reasons, service connection for a left ankle disorder must be denied. The benefit of the doubt does not apply here. 38 U.S.C. § 5107 (b). Service Connection of Bilateral Knee Disorder to Include Secondary Service Connection to Right Ankle Disorder The Veteran has asserted that his current bilateral knee disorders are secondary to his right ankle disorder. As service connection for the right ankle has been denied, secondary service connection of the left knee disorder and of the right knee disorder must also be denied. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s bilateral knee disorders are related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). While the Veteran is competent to report in-service knee pain, and his reports are credible and entitled to some probative weight. The Veteran’s service treatment records are silent as to knee injury. The Board notes a June 2012 medical note that the Veteran’s severe obesity clearly plays a role in the patient’s ankle and knee pain (2/18/2016 Medical Treatment Record – Non-Government Facility, p. 21). The probative evidence of record is against finding either a left or right knee disorder or injury in-service or a link between the current left or right knee condition and service. Direct service connection cannot be granted in this case. The benefit of the doubt does not apply here. 38 U.S.C. § 5107 (b). Service Connection of Sleep Apnea Syndrome, to Include Secondary Service Connection to Right Ankle Disorder The Veteran has asserted that his sleep apnea syndrome is secondary to his right ankle disorder. As service connection for the right ankle has been denied, secondary service connection of sleep apnea syndrome must also be denied. Service connection may also be granted on a direct basis, however there is no evidence that the Veteran’s sleep apnea syndrome is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Indeed, the first diagnosis is not seen until 2002, many years following separation from service. In this regard, a significant gap in time between service and treatment is an appropriate factor, among others, for consideration. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the record here does not contain lay evidence of continuity of symptomatology dating back to service. Given the above, direct service connection of the Veteran’s sleep apnea cannot be granted in this case. The benefit of the doubt does not apply here. 38 U.S.C. § 5107 (b). REASONS FOR REMAND The Veteran has asserted direct service connection of his hypertension stating he was “inhaling chemicals in dirt while performing duties” (11/29/2016 Form 9, p. 2). The record does not provide sufficient evidence pertaining to this theory of entitlement for the Board to make a fully informed decision. Accordingly, this matter is remanded to the AOJ for additional development. The matter is REMANDED for the following action: 1. Send a letter to the Veteran and his representative requesting that he provide any additional information regarding the in-service “inhaling chemicals in dirt while performing duties.” The AOJ should review personnel records, conduct additional development, or supplement the record regarding this theory of entitlement as appropriate. 2. After completion of #1, if necessary, schedule the Veteran for a VA examination to determine whether there is a nexus between the Veteran’s inhalation of chemicals in dirt and his currently diagnosed hypertension. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should specifically opine whether it at least as likely as not (a 50 percent probability or more) that the Veteran's hypertension is related to his active service, to include “inhaling chemicals in dirt while performing duties.” The examiner should provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. A. Myers, Associate Counsel