Citation Nr: 1807827 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-24 909A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for lumbosacral sprain with intervertebral disc syndrome (IVDS) and degenerative disc disease (DDD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 26, 2017. 3. Entitlement to service connection for right ankle degenerative changes and right ankle anterior talofibular and calcaneofibular injury. 4. Entitlement to service connection for left ankle degenerative changes as secondary to right ankle degenerative changes. REPRESENTATION Appellant represented by: Douglas Sullivan, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from August 1987 to April 1989 and the United States Army from April 1989 to January 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO continued a noncompensable evaluation for lumbosacral sprain with IVDS and DDD and denied service connection for bilateral ankle pain. In April 2014, the Veteran testified in a hearing before a Decision Review Office (DRO) at the RO. In September 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ). The transcripts for both hearings are of record. In a November 2017 rating decision, the RO assigned a higher disability rating of 20 percent for lumbosacral sprain with IVDS and DDD, effective the February 11, 2011 date of the increased rating claim. The Veteran has not indicated satisfaction with the increased rating that has been granted and the Board will therefore address the claim. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). Additionally, during the pendency of the appeal for a higher rating for a lumbar spine disability, the Veteran asserted that he was unable to obtain gainful employment due to his service-connected disabilities. This raised the issue of entitlement to a TDIU as part and parcel of the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability). In a November 2017 rating decision, the RO granted entitlement to a TDIU, effective September 26, 2017, which was the date of a formal claim for TDIU (VA Form 21-8940). Given that the issue of TDIU was also on appeal as part and parcel of the increased rating claim filed in February 2011, the grant of TDIU effective September 26, 2017 was not a full grant of the benefit sought and the issue of entitlement to a TDIU prior to September 26, 2017 remains on appeal. In the April 2012 rating decision, the agency of original jurisdiction (AOJ) characterized the service connection issue on appeal as a single issue of service connection for bilateral ankle pain. Review of the evidence of record reflects that the Veteran has two separate ankle disabilities with different theories of entitlement as set forth below; thus, the issue has been bifurcated, as set forth on the title page. See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion). FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether symptoms of the Veteran's lumbosacral sprain with IVDS and DDD more nearly approximated flexion limited to 30 degrees or less, but the preponderance of the evidence reflects that symptoms did not more nearly approximate ankylosis or incapacitating episodes. 2. The evidence is at least evenly balanced as to whether the Veteran's right ankle degenerative changes are related to active military service. 3. The evidence is at least evenly balanced as to whether the Veteran's right ankle disability caused his left ankle degenerative changes. 4. The Veteran's service-connected disabilities preclude the ability to secure or follow substantially gainful employment prior to September 26, 2017. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for a rating of 40 percent, but no higher, for lumbosacral sprain with IVDS and DDD, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242-5243 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right ankle degenerative changes are met. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left ankle degenerative changes have been met on a secondary basis. 38 U.S.C. §§ 1110, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 4. The criteria for a TDIU prior to September 26, 2017 are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. § 5103, 5103A; 38 C.F.R. § 3.159. Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. II. Analysis A. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board notes that in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply. 38 C.F.R. § 4.59 provides, "The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." In the case of the Veteran's spine disability, however, the Board is granting the highest rating possible under the applicable diagnostic codes based on limitation of motion, with higher ratings requiring ankylosis. For the reasons indicated in the discussion below, any error in not conducting Correia-complaint range of motion testing with regard to these joints is therefore harmless. The Veteran's service-connected lumbosacral sprain with IVDS and DDD is evaluated as 20 percent disability under DC 5242-5243. The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. The Veteran has a diagnosis of Intervertebral Disc Syndrome. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphasia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See Note 5, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, Plate V (2016). Under the General Rating Formula for Diseases and Injuries of the Spine, the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). Any associated neurological abnormalities are evaluated separately under the appropriate diagnostic code. See Note 1, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a. When rating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran contends that his lumbar spine disability warrants an increased evaluation. The Veteran was afforded a VA examination in June 2014 where he reported flare-ups and described the impact as pain, difficulty with bending, and difficulty with lifting. On examination, the examiner noted forward flexion ended at 45 degrees with objective evidence of painful motion beginning at 45 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. The examiner noted that the Veteran did not have additional limitation in range of motion of the lumbar spine following repetitive use testing. The examiner reported that the Veteran had functional loss, functional impairment, and/or additional limitation of range of motion of the lumbar spine after repetitive use with less movement than normal, weakened movement, incoordination, pain on movement, disturbance of locomotion, inference with sitting, standing, and weight-bearing. Further examination revealed localized tenderness with no muscle atrophy. The examiner noted that the Veteran had IVDS with no incapacitating episodes over the past 12 months. The examiner noted that the Veteran's posture was stooped due to his spine disability. Additionally, the Veteran's gait was antalgic due to his spine. The Veteran reported that he used a cane constantly. A July 2015 private treatment note reflects that the Veteran had difficulty standing and walking. His forward flexion was noted to end at 40 degrees. During a February 2017 VA examination, recorded on a Disability Benefits Questionnaire (DBQ), the Veteran reported that he was unable to perform range of motion testing due to his pain. He reported that he had flare-ups that impacted the function of his lumbar spine. He described the impact by stating "I can hardly walk." He also reported functional loss or functional impairment described as difficulty with prolonged standing and walking. The examiner noted that his gait was abnormal, there was no ankylosis, and the Veteran had a diagnosis of IVDS. Additionally, the examiner noted that he was unable to evaluate spinal contour because the Veteran was in a wheelchair. During his September 2017 Board hearing, the Veteran testified that he had no feasible range of motion in his back. He reported that began to need to use a wheelchair in 2012. He stated that range of motion, twisting, bending, and moving his back in general hurt too much. He described the pain as throbbing sharp pain that resulted in periods of incapacitation. He stated that since 2012, he spent an average of 15 days out of the month in bed. He reported that his difficulties with daily living included needing assistance getting out of bed, dress, cooking, cleaning, and driving. He reported that he had flare-ups that made it hard to move; he described the pain as excruciating during the flare-ups. The October 2017 DBQ revealed forward flexion that ended at 85 degrees. The examiner noted that the Veteran did not have ankylosis. The examiner reported that the Veteran had IVDS with no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran reported that it was hard for him to get out of bed without assistance. He reported that he had sharp, shooting, stabbing back pains and spasms. He also reported that he had flare-ups. The Veteran reported that he had functional loss or functional impairment which consisted of spasms of his back, the need to spend three fourths of his time in bed, and constant back pain. VA treatment notes and private treatment records reflect continued treatment and monitoring of pain for the Veteran's lumbar spine disability. Upon review of the evidence of record, the Board finds that the Veteran's lumbar spine disability symptoms more nearly approximate the criteria required for a 40 percent disability rating, but not higher, under the General Rating Formula for Diseases and Injuries of the Spine, DC 5242-5243. The evidence reflects back pain, limitation of motion, and weakened movement. Specifically, the June 2014 and February 2017 examinations revealed flare-ups severe enough to impact his ability to walk, bend, lift, and required assistance with daily activities such as getting out of bed. Additionally, examiners noted that the Veteran experienced functional loss and functional impairment, to include, pain, weakness, and fatigability. In order to warrant a 40 percent rating under the general rating formula, symptoms must more nearly approximate flexion to 30 degrees or less. Here, while forward flexion ranged from 40 to 85 degrees on range of motion testing, there was additional functional loss during repetitive motion testing and consistent evidence of additional functional limitation due to pain and weakness during flare-ups throughout the appeal period. The Board therefore finds that throughout the appeal period there have been symptoms more nearly approximating the flexion to 30 degrees or less warranting an initial 40 percent rating under the general rating formula. In order to warrant an evaluation in excess of 40 percent for the Veteran's lumbar spine degenerative changes, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Here, VA treatment notes, private treatment records, and the VA examination reports do not indicate that there was unfavorable ankylosis of the entire thoracolumbar spine for the appeal period. There is no evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The medical findings contain specific notations which indicated that there was no ankylosis. With respect to the provisions of 38 C.F.R. §§ 4.40 and 4.45, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that, if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable. See id. at 84-85 (although the Secretary suggested remand because of the Board's failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). In the instant case, the Veteran is receiving the maximum rating allowable under the current General Rating Formula for Diseases and Injuries of the Spine, absent ankylosis. Accordingly, 38 C.F.R. §§ 4.40 and 4.45 are not for consideration. The Board notes that the evidence reflects that the Veteran had IVDS, and that he contends that he has suffered from incapacitating episodes due to IVDS. However, the June 2014, February 2017, and October 2017 reports noted that the Veteran did not have incapacitating episodes over the past 12 months due to IVDS. Also, the evidence does not reflect that the Veteran was prescribed bedrest by a physician, as required under the Formula for Rating IVDS Based on Incapacitating Episodes. As such, an increased rating based on incapacitating episodes is not warranted. As to neurological manifestations of spine disability pursuant to Note (1) of the General Rating Formula, the Board finds that this provision provides no basis for assignment of any higher, or separate, compensable rating(s) in addition to those already assigned. In November 2017, the RO granted service connection for bilateral radiculopathy in the lower extremities and assigned 20 percent ratings, effective September 2017. To date, the Veteran has not appealed the ratings assigned and the issue as to whether higher ratings or ratings prior to September 2017 for radiculopathy are warranted is not before the Board. See John v. Shulkin, No. 16-2487 (Vet. App. Jan. 31, 2018) (mem dec) (although the Veteran was presumed by virtue of his appeal of the RO's initial denial of an increased rating for his low back disability to have been seeking the maximum benefit allowed by law for that disability, and that evaluation issue remained in controversy where less than the maximum benefit had been awarded, "that presumption did not sweep up the jurisdictionally separate radiculopathy claim into his appeal of the increased low back evaluation;" the Veteran was required to file a separate NOD as to the radiculopathy rating assigned by the AOJ if he wished to initiate appellate review of that issue and the Board did not clearly err in finding that issue not before it on appeal) (citations omitted). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). For the foregoing reasons, the evidence is at least evenly balanced as to whether symptoms of the Veteran's IVDS with lumbar spine degenerative changes more nearly approximated flexion limited to 30 degrees or less, but the preponderance of the evidence reflects that symptoms did not more nearly approximate ankylosis or incapacitating episodes. Resolving reasonable doubt in the Veteran's favor, a rating of 40 percent, but no higher, is warranted for the Veteran's lumbar spine disability. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. B. TDIU Under 38 C.F.R. § 4.16 (a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran's single service-connected disability is ratable at 60 percent or more; or, if the veteran has two or more service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. Disabilities resulting from a common etiology will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16 (a)(2). As noted above, the issue of entitlement to a TDIU was raised as part and parcel of the claim for a higher rating for the Veteran's service-connected lumbar spine disability. See Rice, 22 Vet. App. 447 (2009). In a November 2017 rating decision, the RO granted entitlement to a TDIU, effective September 26, 2017. As noted in the introduction, given that appeal period begins prior to this date because the issue of entitlement to a TDIU is part and parcel of the February 2011 increased rating claim, this decision did not grant the full benefit sought, and the Board will therefore address the issue of entitlement to a TDIU prior to September 26, 2017. The Veteran is service-connected for posttraumatic stress disorder (PTSD), rated as 50 percent from January 23, 1997 and 70 percent from September 26, 2017; due to the decision above, he is now service-connected for lumbosacral strain with IVDS and DDD, rated as 40 percent from February 11, 2011; bilateral radiculopathy, sciatic nerve, associated with lumbosacral strain with IVDS and DDD each rated as 20 percent; bilateral radiculopathy, femoral nerve, associated with lumbosacral strain with IVDS and DDD each as 20 percent; and collapsed lung as noncompensable from January 23, 1997. The Veteran thus has a combined rating higher than 70 percent throughout the appeal period and meets the minimum schedular requirements for TDIU on a schedular basis prior to September 26, 2017. 38 C.F.R. § 4.16(a). In the September 2017 Veteran's Application for Increased Compensation Based on Unemployability, the Veteran indicated that he was last employed in May 2012. A June 2014 VA examination report the examiner noted that the impact of the Veteran's lumbar spine disability on his ability to work included difficulty with duties that involve prolonged standing, twisting, bending, heavy lifting, or extensive walking. In a February 2017 DBQ, the examiner noted that the Veteran's lumbar spine disability impacted his ability to perform any type of occupational task. In a June 2017 service connection questionnaire, the physician noted that the Veteran's lumbar spine disability markedly interfered with his employment due to his chronic low back pain, his confinement to a wheelchair, his inability to operate heavy machinery, and his pain aggravation by movement. During a September 2017 Board hearing, the Veteran testified that he last worked in May 2012. He stated that his highest level of education was high school and his prior work experience was in manual labor. He reported that he was fired from his last job and one of the reasons was fired was due to increased problems with his back due to lifting weight at work. Additionally, he reported that his concentration and focusing was "off." In October 2017, the Veteran was afforded VA examinations for his service-connected disabilities. As for the Veteran's PTSD, the examiner noted that the Veteran's symptomatology included depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently; appropriately, and effectively; chronic sleep impairment; circumstantial, circumlocutory or stereotyped speech; disturbances of motivation and mood; and difficulty in adapting to stressful circumstances, including work or a work-like setting. As for the Veteran's lumbar spine disability, the examiner noted that the Veteran was unable to perform sedentary work based on the examination. Social Security Administration (SSA) records reflect that the Veteran was found disabled since May 30, 2012. Records reflect that the vocational expert found that there were no jobs in the national economy that the Veteran could perform based on his age education, work experience, and residual functional capacity. Additionally, it was determined that his acquired job skills did not transfer to other occupations outside of manual labor. The expert found that the Veteran was unable to perform any past relevant work. Upon review of the evidence of record, the Board finds that a TDIU is warranted. The Veteran's record indicates that he has a high school diploma. The Veteran reported that he is unable to sustain gainful employment due to his physical limitations. These statements are competent and credible and the Board notes that whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). Furthermore, the record contains numerous opinions regarding the Veteran's service-connected disabilities impacting his ability to work. Although the Veteran has a level of education that would enable him to perform sedentary work, SSA reports and the October 2017 examination report reflect that the Veteran is unable to perform sedentary work. Furthermore, multiple examinations revealed that the Veteran could not perform any physical type of labor as he is in a wheelchair and has difficulty standing, walking, sitting, and lifting weight. Based on the medical examinations and opinions, the Veteran's statements, and his educational and occupational history, the Board finds that the Veteran is unemployable due to his service-connected disabilities. Therefore, entitlement to a TDIU is warranted. 38 C.F.R. § 4.16 (a). C. 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 military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection also may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was traceable to a disease or injury incurred or aggravated in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2016). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310 (b) provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. The Veteran contends that his right ankle disability had its onset in-service and his left ankle disability is a result of his right ankle disability. Service treatment records reflect that the Veteran was seen in June 1988 for a right ankle injury following a helicopter crash and was subsequently diagnosed with ankle tendonitis. In January 1989, he was seen for right ankle pain described as moderate to severe. In September 1993, he was seen for right ankle pain that occurred after a 12 mile road march. The examiner noted that he had limited movement and was very tender to palpation. In November 1995, he was seen for right ankle pain where the examiner assessed an ankle sprain. VA treatment records from 2012 reflect that the Veteran reported right ankle pain that began in 1988. In May 2014, the Veteran underwent magnetic resonance imaging (MRI) which reflected bilateral mild degenerative changes of the anterior and posterior aspect of the tibiotalar joint. No acute bony abnormality was noted. In a September 2017 ankle service connection questionnaire, the physician noted a right ankle anterior talofibular and calcaneofibular injury. The physician opined that the Veteran's current right ankle condition as likely as not was a direct result or direct continuation of pain from his time in service. Additionally, the physician opined that the Veteran's current left ankle condition as likely as not secondary to his right ankle condition, or otherwise exacerbated beyond the natural progression of the disease by the right ankle condition. As rationale, the physician reported that the Veteran was compensating for his right ankle pain and injury. The physician additionally stated that the Veteran had a history of a helicopter accident that occurred in 1988 that contributed to his ankle. During the September 2017 Board hearing, the Veteran reported that he did not have specific treatment for his ankle since the helicopter crash in 1988. He reported that he first started getting treatment for his ankle in 2012, but still had problems with his ankle since leaving service. Additionally, he reported that his left ankle began to hurt in service, as well. For the following reasons, service connection for a right ankle disability is warranted on a direct basis and service connection for a left ankle disability secondary to the Veteran's right ankle disability is warranted. The medical evidence reflects that the Veteran has bilateral ankle degenerative changes and right ankle anterior talofibular and calcaneofibular injury. Therefore, a current disability has been established. Consequently, the issue at hand is whether there exists a nexus between his current disability and his in-service helicopter crash and whether there exists a relationship between the Veteran's right ankle disability and left ankle disability. Although the September 2017 physician's rationale was not extensive, reading his opinion as a whole and in context of the evidence of record, to include his familiarity with the Veteran's then current ankle problems and progression of related symptoms, as well as the consistency of the Veteran's statements, entitles his positive nexus opinion some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Furthermore, the physician provided a rationale based on a review of the Veteran's case history, health questionnaire, and imaging studies. His opinion, indicating a long term disease process, is, also, entitled to some probative weight. Id. Furthermore, the Board finds the Veteran's statements to be competent, credible, and consistent with the places, types, and circumstances of service. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The STRs reflect that he was in a helicopter crash in 1988 and he injured his right ankle as a result. The STRs also reflect continued reports of right ankle issues subsequent to the crash. Given the evidence in favor of service connection before the Board, a remand for another examination or opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Moreover, given the adequate positive medical nexus opinion and competent, credible lay statements of the Veteran, the evidence is at least evenly balanced as to whether the Veteran's right ankle disability is a result of his in-service right ankle injury. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a right ankle disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Furthermore, given the probative opinion of the private physician that the Veteran's left ankle disability was caused by his right ankle disability, service connection for a left ankle disability as secondary to the right ankle disability is also warranted. ORDER Entitlement to a rating of 40 percent, but no higher, for lumbosacral sprain with IVDS and DDD, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a TDIU is granted, subject to the regulations governing the award of monetary benefits. Entitlement to service connection for right ankle degenerative changes and right ankle anterior talofibular and calcaneofibular injury is granted. Entitlement to service connection for left ankle degenerative changes as secondary to service-connected right ankle degenerative changes and right ankle anterior talofibular and calcaneofibular injury is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs