Citation Nr: 18159759 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 12-05 548 DATE: December 20, 2018 ORDER Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right ankle disability, is denied. Entitlement to service connection for a left ankle disability, to include as secondary to a service-connected right ankle disability, is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include an anxiety disorder, mood disorder, polysubstance abuse, and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a sleep disorder, to include as due to an undiagnosed illness due to service in Southwest Asia, is remanded. FINDINGS OF FACT 1. The Veteran’s left knee disability is not etiologically related to an in-service injury, event, or disease, to include as secondary to her service-connected right ankle disability. 2. The Veteran’s left ankle disability is not etiologically related to an in-service injury, event, or disease, to include as secondary to her service-connected right ankle disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317 (2017). 2. The criteria for entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1990 through August 1990 and from November 1990 through September 1991. This matter has been before the Board on several occasions. In relevant part, the Board denied the above-listed issues in a November 2015 decision. The Veteran appealed the Board’s November 2015 denial of her claims for service connection for a left knee disorder, a left ankle disorder, a low back disorder, tinnitus, and a sleep disorder to the U.S. Court of Appeals for Veterans Claims (Court). In September 2017, the Court issued an Order granting a Joint Motion for Partial Remand (Joint Motion), which vacated the Board’s November 2015 denial of these claims and remanded the claims to the Board for additional development and consideration. In January 2018, the Board remanded the matter for development in accordance with the Joint Motion. The requested actions having been completed to the extent possible, and the claims having been readjudicated by the Regional Office (RO) in an October 2018 Supplemental Statement of the Case (SSOC), the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet App. 268 (1998). The Board notes that the Veteran was diagnosed with “probable fibromyalgia” in 2014. See January and May 2014 rheumatology consultations. However, the Veteran was diagnosed with left ankle arthrosis and tendonitis, and left knee chondromalacia patellae, at the time of her initial claim for benefits. Accordingly, the Board finds the Veteran’s diagnosed fibromyalgia is not encompassed by her claims for service connection for left knee and left ankle disabilities, as her left knee and left ankle complaints have specific diagnoses, and she was not diagnosed with fibromyalgia until several years after filing her claim for benefits. If the Veteran would like to submit a claim for entitlement to service connection for fibromyalgia, she is encouraged to submit a formal claims form. While on remand, the Regional Office (RO) granted entitlement to service connection for tinnitus in an October 2018 rating decision. The rating decision properly informed the Veteran that this action constituted a full determination of the issue on appeal and closed out the claim. Duty to Notify and Assist In its November 2018 appellate brief, the Veteran’s representative raised several contentions regarding VA’s duty to notify and assist.   First, the representative argues that the Veteran’s VA treatment records are incomplete because a November 2000 treatment record noted the Veteran would return for follow-up in three to four months, but the next treatment record is not dated until October 2002. However, there is no evidence in the medical records that the Veteran ever attended a follow-up appointment, or had any appointments at all, prior to her October 2002 visit. The October 2002 record clearly indicates the Veteran’s previous medical history was “none” and listed the November 2000 date of her initial appointment at VA. The representative also asserted the records were incomplete because the October 2002 record noted it was a follow-up from an ER visit, but the ER report was not part of the claims file. However, there is no indication in the record that the Veteran sought emergency treatment at a VA emergency department. If the Veteran went to a private ER, those records could not be obtained without her permission, and she has never indicated those records were relevant or asked VA to obtain them in the many years this appeal has been ongoing. In fact, there is no suggestion such ER records would even be relevant to the issues on appeal, as the 2002 note indicates the ER treatment was for a horseshoe kidney and ovarian cysts. The representative also argues that the Veteran was seen by a VA medical facility in New York, and those records were never obtained. This is incorrect. A June 2011 VA treatment record noted the Veteran made a Hotline Call, which was generated by the VA National Homeless Prevention Hotline in Canadaigua, New York. However, that record clearly noted the Veteran reported living with friends in Arkansas. Accordingly, there is no evidence she ever sought treatment at a VA Medical Center in New York. Finally, the representative argued that the RO listed the incorrect service and birth dates on a January 2015 records request to the Memphis VA Medical Center. While the June 2015 response to the January 2015 request returned a form listing a completely different Veteran’s information (including branch of service and social security number) when it noted no records could be found, the initial January 2015 request correctly listed the Veteran’s service dates, date of birth, and social security number. As such, there is no evidence any records were improperly requested. As for the claims on appeal, the representative argued that the Board erred in considering the Veteran’s claims as an undiagnosed illness, possibly Gulf War Syndrome, instead of as a Medically Unexplained Chronic Multisymptom Illness, because she had several gastrointestinal complaints. The November 2015 Board decision denied entitlement to service connection for a gastrointestinal disability, and that issue was not appealed to the Court. See August 2017 Joint Motion. As such this argument is not applicable to the issues remaining on appeal. The representative next makes several arguments that various VA examinations and opinions are inadequate. However, new VA medical opinions were obtained following the January 2018 Board remand and the representative has not contended there are any deficiencies in those examinations and opinions. The Board finds VA has satisfied its duty to notify and to assist, and can proceed to appellate adjudication. Service Connection 1. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right ankle disability 2. Entitlement to service connection for a left ankle disability, to include as secondary to a service-connected right ankle disability The Veteran asserts that her left knee and left ankle disabilities are etiologically related to her active duty service due to carrying heavy equipment. In the alternative, she argues that her service-connected right ankle disability caused her gait to change, which subsequently caused her left knee and left ankle disabilities. Initially, the Board notes that the Veteran’s left knee disability has been diagnosed as chondromalacia patellae, and her left ankle disability has been diagnosed as arthralgia and tendonitis. See June 2006 VA treatment record; October 2011 VA ankle examination; and April 2012 VA knee examination. As her joint disabilities have specific diagnoses and etiologies, they are not symptoms of an undiagnosed illness or a medically unexplained chronic multi-symptom illness to qualify for the presumptions of 38 C.F.R. § 3.317. Service treatment records reflect the Veteran reported experiencing cramps in her knees, a “trick” or locked knee, and swollen or painful joints on her April 1991 report of medical history for redeployment. However, she did not report receiving any treatment for left knee or left ankle pain, and the physician did not make any notes indicating the Veteran had a chronic left knee or left ankle disability at that time. Her service treatment records from her period of active duty service are otherwise silent for any complaints of, or treatment for, left knee and left ankle disabilities. The Veteran underwent a periodic examination in March 1993. On her report of medical history, she reported experiencing swollen or painful joints, and cramps in her legs (but did not specify knee cramps). However, she did not report any “trick” or locked knee at that time. A November 2000 VA treatment record noted she was seen to establish care at VA. She denied any joint pain, swelling, muscle cramps, muscle weakness, stiffness, or arthritis. Her post-service medical records are silent for any complaints of left ankle pain until February 2004, when a record noted she was seen for a follow-up following an ER visit for a sprained ankle. At the time, she was noted to have sprained her left ankle and was using an air cast, but there was no physical evidence of pain or instability. The record did note that she had a previous ankle sprain, but did not indicate whether it was her left or right ankle or when that sprain occurred. Later in February 2004, it was noted that her left ankle sprain had resolved. Physical examination of her extremities reflected full range of motion without evidence of inflammation, edema, or crepitation, and her peripheral pulses were within normal limits. She was next treated for left ankle pain in June 2006, and was diagnosed with tendonitis. There is no evidence the Veteran was ever treated for knee pain and disability until September 2010, when she reported her knees ached during a VA Gulf War examination.   The Veteran was afforded a VA examination to determine the etiology of her left ankle disability in October 2011. She was diagnosed with arthralgia. The Veteran reported that she did not have a specific left ankle injury, but had been experiencing left ankle pain for the last two to three years. The examiner opined it was less likely than not that the Veteran’s left ankle disability was directly related to her active duty service because there was no recorded left ankle injury in her service medical records, and the pain had only been present for two to three years. The examiner noted that the Veteran did not walk with a limp, and it was most likely that her left ankle arthralgia was related to obesity. The Veteran was afforded another VA examination to determine the etiology of her left knee and left ankle disabilities in April 2012. She was diagnosed with left ankle arthralgia and left knee chondromalacia patellae. The Veteran could not recall any specific injury to her left ankle, but she reported she injured her knee in the past in a motor vehicle accident when her knee hit the gearshift, and she currently experienced pain around and under the left kneecap. The examiner opined the Veteran’s left knee disability was related to her non-service-related motor vehicle accident. There is no evidence to suggest the Veteran’s left knee and left ankle disabilities are directly related to her active duty service. Although the Veteran reported experiencing a “trick” or locked knee and cramping in her knees on her April 1991 redeployment report of medical history, there is no evidence in her service medical records that she was ever treated for a left knee disability. Moreover, she did not report any knee disabilities or pain during her March 1993 periodic examination. Similarly, there are no reports of any left ankle pain. General reports of swollen or painful joints in April 1991 do not provide evidence the Veteran had any left ankle symptoms during her active duty service. The October 2011 VA nexus opinion, which the Board notes has not been contested by the Veteran or her representative, opined that her left ankle arthralgia was less likely than not related to her active duty service because she reported the onset of pain in approximately 2008 and there was no evidence of any ankle injury while on active duty service. The examiner opined that the left ankle arthralgia was most likely related to her obesity. The April 2012 VA examiner opined that the Veteran’s left knee disability was caused by a non-service-related motor vehicle accident. Again, the Board notes that the April 2012 opinion that the Veteran’s left knee disability was caused by a post-service motor vehicle accident has not been contested. The Board finds the October 2011 and April 2012 VA nexus opinions to be of probative evidentiary value because the conclusions are supported by medical rationale and are consistent with the verifiable facts regarding the Veteran’s contentions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). The October 2011 examiner thoroughly reviewed the service treatment records and noted the Veteran’s lay reports that her left ankle pain had begun only two to three years prior, and opined it was less likely than not that the Veteran’s left ankle arthralgia was related to her active duty service. Similarly, the April 2012 VA examiner reviewed the claims file and noted the Veteran’s report that she injured her left knee in a non-service-related motor vehicle accident and opined the Veteran’s left knee chondromalacia patellae was caused by her motor vehicle accident and was not etiologically related to her active duty service. The Veteran’s representative has asserted in its November 2018 appellate brief that the April 2012 VA opinion only addressed secondary service connection, and the file contained no opinions addressing whether the Veteran’s left knee and left ankle disabilities were directly related to her active duty service. This, however, is incorrect. The April 2012 VA examiner clearly opined the Veteran’s left knee disability was caused by a non-service-related motor vehicle accident, and is thus not related to her active duty service. Moreover, the October 2011 VA opinion provided detailed rationale explaining that the Veteran’s left ankle disability was not etiologically related to her active duty service. Accordingly, the claims file contains opinions discussing whether the Veteran’s disabilities are both directly related to her active duty service or secondary to her service-connected right ankle disability. As there is no evidence the Veteran’s left knee and left ankle disabilities are directly related to her active duty service, the Board turns to the Veteran’s argument that her left knee and left ankle disabilities are caused or aggravated by her service-connected right ankle disability. The Veteran asserts that her service-connected right ankle disability altered her gait, causing her to favor her right side and put more pressure on her left side, which caused or aggravated her left knee and ankle disabilities. The Board notes that the majority of the Veteran’s medical records and VA examinations have noted that her gait was normal, good, steady, appropriate, without assistance, or within normal limits. VA treatment records reflect the Veteran was noted to have an abnormal gait fewer than five times during the entire period on appeal. In January 2013 she was noted to have an antalgic gait related to guarding and pain of her lumbar spine, in August 2013 she was noted to use a cane due to knee pain but her gait was noted to be normal, and in October 2017 she was noted to have an abnormal gait due to hip pain. The October 2011 VA examiner noted the Veteran’s gait was normal without any obvious limp. The April 2012 examiner provided opinions related to whether the Veteran’s left knee and ankle disabilities were etiologically related to her right ankle disability, but as those opinions were deemed inadequate, the Board will not discuss them in this decision. In January 2015 a VA addendum medical opinion was obtained to determine whether the Veteran’s left knee and ankle disabilities were secondary to her service-connected right ankle disability. However, this opinion was also deemed inadequate and will not be discussed. See August 2017 Joint Motion. The RO obtained a medical opinion in February 2018 to determine whether the Veteran’s left knee and ankle disabilities were caused or aggravated by her service-connected right ankle disability. The examiner reviewed the record and opined it was less likely than not that the Veteran’s left knee and ankle disabilities were caused or aggravated by her service-connected right ankle disability. Since that examiner did not provide any explanation for the opinion, the RO obtained an addendum medical opinion in September 2018. The examiner reviewed the claims file, including the previous VA nexus opinions, and opined that it was less likely than not that her left knee and ankle disabilities were secondary to her service-connected right ankle sprain, even considering what the Veteran perceives as a change in gait. The examiner explained there is no medical nexus that these types of problems occur after a sprained ankle (which is the nature of the Veteran’s service-connected ankle condition). The Board finds the September 2018 VA nexus opinion to be of probative evidentiary value because the conclusion is supported by medical rationale and is consistent with the verifiable facts regarding the Veteran’s contentions. See Nieves-Rodriguez, supra. The examiner thoroughly reviewed the record, including the extensive VA treatment records reflecting the Veteran’s gait was normal and her lay reports of an antalgic gait, and opined there was no medical nexus between the Veteran’s perceived gait change and her left knee and ankle disabilities, and, therefore, it was less likely than not that the Veteran’s service-connected right ankle disability caused or aggravated her left and right knee disabilities. While the Board recognizes the Veteran’s assertions that her left knee and ankle disabilities are related to either service and/or her right ankle disability, and is competent to testify as to symptoms such as limping and pain, she is not competent to provide an etiology. Although lay persons are competent to provide opinions on some medical issues, the specific disability in this case, musculoskeletal issues, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL injury is “medically complex” for lay diagnosis); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the “requisite medical training, expertise, or credentials needed to render a diagnosis” and that their testimony “could not establish medical causation nor was it a competent opinion as to medical causation”); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). Musculoskeletal issues require specialized training and medical diagnostic testing for a determination as to diagnosis, and they are not susceptible of lay opinions on etiology. There are many different possible musculoskeletal issues, and a layperson is not competent to diagnose among them or to provide an etiology. Therefore, the Board finds that the Veteran’s statements of record cannot be accepted as competent evidence sufficient to establish service connection for the disabilities. There is no evidence of record suggesting that the Veteran’s left knee and ankle disabilities are either directly related to her active duty service or secondary to her service-connected right ankle disability. The elements for service connection for a left knee and left ankle disability have not been met. Accordingly, service connection for the disabilities is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against these claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Veteran seeks entitlement to service connection for a low back disability. The prior Board decision cited a February 2015 VA negative nexus opinion. However, that opinion is not of record and cannot be located. See August 2018 notification letter. As the February 2015 VA medical opinion cannot be located, the RO should obtain another VA medical opinion to determine the etiology of the Veteran’s low back disability, to include as secondary to her service-connected right ankle disability. 2. Entitlement to service connection for an acquired psychiatric disability, to include an anxiety disorder, mood disorder, polysubstance abuse, posttraumatic stress disorder (PTSD), is remanded. 3. Entitlement to service connection for a sleep disorder, to include as due to an undiagnosed illness due to service in Southwest Asia, is remanded. In September 2018, the RO obtained opinions addressing the etiologies of the Veteran’s acquired psychiatric disability and sleep disorder. The September 2018 VA medical opinion regarding her acquired psychiatric disability opined her currently diagnosed major depression was related to her back and joint pain. As entitlement to service connection for a low back disability is being remanded, entitlement to an acquired psychiatric disability must also be remanded. Moreover, the September 2018 VA medical addendum opinion discussing the etiology of the Veteran’s sleep disorder opined that the Veteran did not have a sleep disorder separate and distinct from her acquired psychiatric disability, but she experienced sleep disturbance as a manifestation of her acquired psychiatric disability. As such, the claim for entitlement to service connection for a sleep disorder must be remanded as well. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2018 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including whether any low back disability is at least as likely as not (1) proximately due to her service-connected right ankle disability, or (2) aggravated beyond its natural progression by her service-connected right ankle disability. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel