Citation Nr: 18148226 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 12-26 740 DATE: November 7, 2018 ORDER Service connection for a bilateral ankle disorder is denied. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s bilateral ankle disorder is due to disease or injury incurred in active service or due to an undiagnosed illness, or is caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral ankle disorder have not been met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.159, 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1991 to June 1995, including service in the Southwest Asia theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision. The Veteran testified at a Board hearing held via videoconference in March 2015. In July 2017, the United States Court of Appeals for Veterans Claims (Court) vacated a November 2016 Board decision (denying the issues on appeal) and remanded the matter to the Board for further appellate review. Pursuant to the Court’s order and the parties’ Joint Motion for Remand (JMR), the Board remanded the Veteran’s appeal in September 2017. Service connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Service connection may also be granted on a secondary basis where a condition is aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). To warrant service connection on a secondary basis, the evidence must show that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Compensation for secondary service connection based on aggravation of a non-service-connected condition is only warranted for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to service connection for a bilateral ankle disorder. The Veteran seeks service connection for a bilateral ankle disability. See June 2008 claim. He asserts that his bilateral ankle disability is secondary to his service-connected lumbar spine disability. See March 2015 Board hearing transcript, at 22. At his March 2015 Board hearing, the Veteran testified that doctors had previously told him to expect problems with his ankles at some point in time as a result of his service-connected low back disability. Id. at 25. *** At the outset, the Board notes that the Veteran is a Persian Gulf Veteran. As such, he may be entitled to compensation if his bilateral ankle disability is due to an undiagnosed illness or medically unexplained chronic multisymptom illnesses, provided that such disability: became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. A qualifying chronic disability means a chronic disability resulting from an undiagnosed illness, or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia or functional gastrointestinal disorders. 38 C.F.R. § 3.317. A February 2016 VA examination report reflects that the examiner noted a diagnosis of bilateral ankle strain as of 2016. The Veteran reported daily burning-like pain that could happen at any time, even when at rest. The examiner noted that X-rays were interpreted as negative for arthritis, acute fracture, or dislocation. The examiner also indicated that the Veteran’s diagnosis had a clear and specific etiology and that it is less likely than not related to service in Southwest Asia. In a July 2017 JMR, both VA and the Veteran agreed that the February 2016 VA examiner did not provide any explanation for her conclusion that the Veteran’s bilateral ankle disability had a clear and specific etiology. Consequently, in September 2017, the Board remanded for an addendum opinion on this question. In a September 2017 addendum opinion, the February 2016 VA examiner explained that, back in February 2016, she diagnosed bilateral ankle strain as of 2016 based on symptoms of pain when walking and standing, combined with objective findings of decreased range of motion. The examiner further explained that the etiology of the Veteran’s disability was due to a chronic repetition of movement of the ankle muscles predominated by chronic pain. The September 2017 addendum opinion establishes that the Veteran’s diagnosis of ankle strain is musculoskeletal in nature and likely due to chronic repetition of movement of the ankle muscles. The Board finds this conclusion to be adequate, as it is based on a physical examination of the Veteran and shows adequate consideration of his physiology and symptoms. The Board further notes that the examiner is a VA staff physician and is therefore presumed to possess a high degree of medical expertise. Accordingly, the opinion is deemed worthy of significant probative weight. Based on this medical opinion, the Board finds that the Veteran’s diagnosed bilateral ankle strain is a diagnosed illness with a known/understood etiology. As such, and in the absence of evidence that the Veteran’s bilateral ankle disability is due to an undiagnosed illness, a diagnosed medically unexplained chronic multisymptom illness, or a diagnosed illness with no clear etiology, the Board finds that the issue of entitlement to compensation under 38 C.F.R. § 3.317 is not for consideration in the present case. *** As concerns causation, or a nexus with service, the February 2016 VA examiner opined that it was not at least as likely as not that the bilateral ankle strain was due to an injury or disease incurred in active service. The examiner’s rationale was that service treatment records did not document a diagnosed ankle disorder, and that the physical examination at separation noted both to be normal. When viewed in the context of the pertinent medical and lay evidence, the Board finds the February 2016 examiner’s opinion to be probative evidence that weighs against a nexus to service. The Board finds that this opinion is deserving of weight as the examiner captured the pertinent medical history, physically examined the Veteran, and provided a rationale for the opinion given. Furthermore, there is no argument or indication that the Veteran’s ankle disability is directly related to service. As concerns secondary service connection, the February 2016 examiner opined that it was not at least as likely as not that the bilateral ankle strain is due to or aggravated by the service-connected low back disability. The examiner noted that the evidence in the claims file did not demonstrate a causative or aggravating connection. The examiner further noted that, while physical examination revealed decreased right ankle plantar flexion, the Veteran demonstrated a normal gait, and no evidence of pain, weakness, instability or incoordination on repetitive motion. Hence, she opined that the bilateral ankle strain is not aggravated by the service-connected low back disability. When weighed against all pertinent medical and lay evidence, the Board finds the February 2016 examiner’s opinion to be probative evidence that weighs against a finding that the Veteran’s current bilateral ankle disability is related to his service-connected low back disability. The Board finds the 2016 examiner’s opinion carries ample weigh because it included a physical examination of the Veteran, addressed the Veteran’s reported history, and provided a well-reasoned explanation. The Board notes the Veteran’s lay report and testimony of what physicians have told him in the past, as well as his personal opinion that his ankle disorder is caused by his low back disability. He is fully competent to report what a doctor may have told him. See 38 C.F.R. § 3.159(a)(2). Nonetheless, the Board finds the February 2016 examiner’s current assessment and opinion more persuasive than what a physician may have projected or speculated on in the past. As concerns the Veteran’s personal opinion, the Board recognizes that there are certain conditions which lay persons are competent to recognize and, under limited circumstances, even opine on etiology. See Jandreau, 492 F. 3d at 1376-77; 38 C.F.R. § 3.159(a)(2). The Board decides this on a case-by-case basis. The Board finds that opining on a potential causative or aggravating nexus between an ankle disorder and a low back disability requires medical training, to include training in the field of orthopedics. See 38 C.F.R. § 3.159(a)(1). There is no evidence that the Veteran has medical training. Hence, his personal opinion has is not competent regarding the etiology of ankle disorders and carries no weight. *** In sum, the Board finds the preponderance of the evidence is against service connection on a direct, secondary basis, and as due to an undiagnosed illness. 38 C.F.R. §§ 3.303, 3.310, 3.317. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the issue, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disorder is remanded. In February 2016, a VA examiner opined that the Veteran’s neck disability is less likely than not related to service or secondary to a service-connected disability. The examiner, however, did not provide an adequate rationale for his negative opinion. In September 2017, the Board remanded for an addendum opinion. One of the questions posed to the examiner was whether the Veteran’s neck disability is secondary to his service-connected bilateral carpal tunnel syndrome (CTS). In a September 2017 addendum opinion, the same VA examiner who authored the February 2016 opinion concluded that the Veteran’s neck disability was less likely than not caused or aggravated by his service-connected bilateral CTS. The examiner also ruled out a nexus between the Veteran’s neck disability and his service-connected lumbar spine disability. Unfortunately, the examiner did not provide an adequate rationale for any of these conclusions. Regarding the service-connected CTS, the examiner acknowledged that a private provider had suggested a relationship between the Veteran’s neck disability and his CTS, but concluded that the statement had not probative usefulness, as it lacked a rationale. The examiner further indicated that there are no large randomized controlled clinical trials from multicenter research facilities showing a cause-effect relationship between CTS and the cervical spine. Regarding the service-connected lumbar spine, the examiner acknowledged that a private provider had suggested that the Veteran’s neck pain was related to his lumbar spine disorder, but concluded that the statement had not probative usefulness, as it lacked a rationale. The Board finds that these statements do not enable to decide the appeal of the neck issue at this time. First, the examiner’s discussion of favorable medical statements was limited to assessing the probative value of these statements—a non-medical determination that is for the Board to make. Secondly, the examiner relied in the absence of favorable medical literature without discussing the specifics of the Veteran’s disability picture. For instance, the examiner did not consider the extent to which the Veteran’s CTS has affected his posture or upper body mechanics, thereby impacting his neck. Based on the foregoing, the Board has no choice but to remand this matter again. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current neck disorder. To the extent possible, the Veteran is to be examined by a physician other than the one who conducted the February 2016 VA examination. For any current neck disorder, the examiner is to provide an opinion whether it is at least as likely as not (1) proximately due to service-connected disability (to include chronic low back strain and/or bilateral CTS), or (2) aggravated beyond its natural progression by service-connected disability. **The examiner must address favorable the medical evidence suggesting that the Veteran’s cervical spine disorder is related to his service-connected low back disorder and bilateral carpal tunnel syndrome. See private treatment records, received May 5, 2015. Additionally, if studies or medical literature is referenced, then the principles must be applied to the specifics of this Veteran’s medical history.** Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. López, Associate Counsel