Citation Nr: 20002287 Decision Date: 01/10/20 Archive Date: 01/10/20 DOCKET NO. 18-37 679 DATE: January 10, 2020 ORDER Entitlement to service connection for right knee osteoarthritis (claimed more generally as a right knee condition), including as secondary to a service-connected right ankle disability, is denied. REMANDED Entitlement to service connection for attention deficit hyperactivity disorder (ADHD) (claimed as a mental condition), including as secondary to the service-connected right ankle disability, is remanded. Entitlement to service connection for deep vein thrombosis (claimed as phlebitis and clotting condition), including as secondary to the service-connected right ankle disability, is remanded. Entitlement to service connection for early stasis dermatitis (claimed as psoriasis of the left ankle), including as secondary to the service-connected right ankle disability, is remanded. Entitlement to a rating higher than 10 percent for the service-connected right ankle disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) and/or on account of being housebound (HB) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s right knee osteoarthritis is caused or aggravated by his service-connected right ankle disability or otherwise the result of his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for right knee osteoarthritis, including as secondary to the service-connected right ankle disability. 38 U.S.C. §§ 1101, 1112. 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1976 to March 1979. Service Connection The Veteran does not contend, and the evidence does not otherwise suggest, that his right knee disability (diagnosed as osteoarthritis) was directly incurred during his service from March 1976 to March 1979 or initially manifested within a year of his discharge, so by March 1980, to in turn warrant presuming it was incurred during his service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.   The Veteran’s claim is predicated, instead, on the notion that his right knee osteoarthritis is secondary to his service-connected right ankle disability. Service connection may be established on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). Establishing service connection on a secondary basis requires evidence showing: (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Concerning the latter, where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Entitlement to service connection for right knee osteoarthritis (claimed more generally as a right knee condition) as secondary to the service-connected right ankle disability It is not in dispute that the Veteran has a diagnosis of right knee osteoarthritis. There still must be indication, however, this condition was caused or is aggravated by his service-connected right ankle disability. And, unfortunately, the Board finds that the preponderance of the evidence is against this notion. There is no probative (meaning competent and credible) evidence indicating the Veteran’s right knee osteoarthritis is secondary to his service-connected right ankle disability. Significantly, the Veteran, himself, has clarified that he is not claiming entitlement to service connection for right knee osteoarthritis, but instead is hoping to show entitlement to service connection for this condition to the extent also affecting the opposing knee (i.e., left knee osteoarthritis). See, e.g., March 2018 VA Examination; June 2018 VA Form 9. His claim of entitlement to service connection for left knee osteoarthritis was denied by the local regional office (RO) in a September 2018 rating decision, and in response he filed a timely Notice of Disagreement (NOD) concerning this other claim in October 2018. The appeal of this other claim is not completed (“perfected”) until he is provided a Statement of the Case (SOC) and, in response, also submits a timely Substantive Appeal to the Board (VA Form 9 or equivalent). See 38 C.F.R. § 20.200. Consequently, unless and until he does, this issue concerning his left knee osteoarthritis is not before the Board, so only the issue of service connection for right knee osteoarthritis as secondary to his service-connected right ankle disability will be addressed in this decision. The medical evidence of record is against finding that the Veteran’s right knee osteoarthritis is secondary to, again, meaning caused or aggravated by, his service-connected right ankle disability. During the pendency of this appeal, the principal medical evidence material to this claim is the report of the March 2018 VA examination. The remainder of the medical treatment records in the file contain no evidence materially inconsistent with the findings of that examination as relating to the etiology (cause) of the Veteran’s right knee osteoarthritis. The Board acknowledges the argument made by the Veteran that the March 2018 examination is inadequate. The Veteran contends that the examiner failed to consider his reports of years of walking incorrectly and misuse of the right lower extremity, which brought about wear and tear of the right knee. The Veteran further alleges that the examiner used generalized treatise language and a failed to provide a reasoned link between the Veteran’s obesity and knee condition. Therefore, the Veteran argues that the examination report contains an incorrect determination regarding the etiology of his right knee osteoarthritis. See June 2018 VA Form 9. The Board disagrees. The examiner acknowledged the Veteran’s complaints of pain, and that he “aches all over”. The examiner also thoroughly reviewed and chronicled in his examination report the Veteran’s post-service treatment for his right knee. As such, the March 2018 examination report is complete and detailed. It was performed by a VA physician, who is a trained medical professional. As such, the Board finds the examination and opinion adequate and places significant probative value on them, especially since, as will be discussed, the examiner provided the required explanation, i.e., underlying reasons for conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The March 2018 examiner concluded that it is less likely than not that the Veteran’s right knee osteoarthritis was caused by his service-connected right ankle condition. The examiner noted that the Veteran’s symptoms began in 2010 and are more likely due to his severe obesity over many years. Medical records show the Veteran remained physically active, without any gait abnormality resulting from his right ankle disability; therefore, there is no evidence that his service-connected right ankle condition had enough impact to result in a right knee condition, including osteoarthritis says the VA examiner. Furthermore, he adds, there is no medical literature supporting the proposition that arthritis in one joint causes arthritis in another joint. This VA examiner also determined that the Veteran’s right knee osteoarthritis was less likely than not aggravated by his service-connected right ankle disability. The examiner pointed out that medical records document only one episode of right knee pain and right knee x-rays show mild medial compartment osteoarthritis consistent with aging and the Veteran’s obesity. The examiner goes on to explain, for the Veteran’s right ankle disability to aggravate his right knee disability, there would need to be major muscle or nerve damage causing partial or complete paralysis of the damaged leg and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than 4 to 5 centimeters so that the Veteran’s gait pattern, in turn, was altered to the extent that there is an obvious lurching-type gait (a significant limp). There is no evidence in the Veteran’s treatment records indicating his right ankle disability has such an impact. Consequently, the VA examiner clearly has disassociated the Veteran’s right knee osteoarthritis from his service-connected right ankle disability. And, to reiterate, it is especially noteworthy that this commenting VA examiner provided the required rationale (underlying reasoning) for the opinion and, in so doing, readily acknowledged the Veteran’s lay statements regarding what he believes is the origin of his disability. In making its determination, the Board also has considered the Veteran’s personal statements as well as those submitted by others in support of his claim. See, e.g., May 2018 D.S. Buddy Statement. The Veteran is competent to report on matters observed or within his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he has not conversely been shown to possess any pertinent medical training or credentials that would make him competent to establish that his right knee osteoarthritis was caused or aggravated by his service-connected right ankle disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Rather, the medical findings and opinions of trained medical professionals warrant greater probative weight than the Veteran’s lay contentions in this case because the condition at issue is complex, not instead simple. See Kahana v. Shinseki, 24 Vet. App. 428 (2011) (explaining that the determination of whether medical versus lay evidence is needed to support a claim is fact specific (i.e., a case-by-case judgment), based on the specific type of condition being claimed, including in terms of whether it is simple or instead complex); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). Accordingly, the Board finds that the elements of secondary service connection have not been met. The most probative (meaning most competent and credible) evidence, particularly the medical evidence, does not demonstrate that the Veteran’s right knee osteoarthritis is secondary to (caused or aggravated by) his service-connected right ankle disability. 38 C.F.R. § 3.310(a) and (b). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and this claim of entitlement to service connection for right knee osteoarthritis as secondary to the service-connected right ankle disability is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for ADHD (claimed as mental condition) secondary to the service-connected right ankle disability The Veteran submitted evidence from Dr. L.I. indicating this disability may date back to the Veteran’s college years. See Dr. L.I. Private Treatment Records.   Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service and (2) was not aggravated by such service. See 38 U.S.C. §§ 1111, 1132, 1137; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). This is referred to as the “presumption of soundness.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). The evidence of record raises the question of whether the Veteran’s ADHD preexisted his service. See Dr. L.I. Private Treatment Records. If a condition is not “noted” when entering service, it is presumed the Veteran was in sound health when entering service. In this circumstance to rebut the presumption of soundness there must be clear and unmistakable evidence of both a pre-existing condition and a lack of in-service aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). See also 38 U.S.C. § 1111; VAOPGCPREC 3-2003 (July 16, 2003). Therefore, the Board is requesting an opinion on the etiology of the Veteran’s ADHD, specifically addressing the question of whether it clearly and unmistakably preexisted his service and, if so, whether it also clearly and unmistakably was not aggravated by his service. 2. Entitlement to service connection for deep vein thrombosis (DVT) (claimed as phlebitis and clotting condition) secondary to the service-connected right ankle disability 3. Entitlement to service connection for early stasis dermatitis (claimed as psoriasis of the left ankle) secondary to the service-connected right ankle disability In March 2018, the Veteran was afforded VA examinations in response to these claims. However, the Board finds these examinations inadequate for adjudication purposes. Specifically, the examiner’s rationale as to secondary service connection was conclusory and failed to adequately address whether the Veteran’s DVT and/or early stasis dermatitis, even if not caused, alternatively are aggravated by his service-connected disability. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that “a mere conclusion by a medical doctor is insufficient to all the Board to make an informed decision as to what weight to assign to the doctor’s opinion”); see also El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that medical opinions addressing the issue of secondary service connection are inadequate when they fail to adequately encompass the question of aggravation). Two opinions are required for secondary-service-connection claims: 1. Is the claimed disorder “caused by” or “due to” the service-connected disability? AND 2. Is the claimed disorder “aggravated by” the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connection condition (regulatory change effective from September 2006). An opinion that something “is not related to” or “is not due to” does not answer the question of aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). As a result, a supplemental (addendum) medical opinion is needed addressing this additional possibility. 4. Entitlement to a rating higher than 10 percent for the service-connected right ankle disability. A new VA examination is needed reassessing the severity of the Veteran’s right ankle disability. The March 2018 VA examiner indicated the examination was not conducted immediately after repetitive use over time, but that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner noted that pain significantly limited the Veteran’s functional ability with repeated use over time but failed to describe the limitation in terms of range of motion. In Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017), the United States Court of Appeals for Veterans Claims (Court) held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to obtain additional information from the Veteran or treatment records to indicate the frequency, duration, characteristics, severity, or functional loss with repetitive use. See Sharp, 29 Vet. App. at 36. Consequently, additional medical comment is needed addressing these deficiencies in the March 2018 VA examination. 5. Entitlement to a TDIU. 6. Entitlement to SMC based on the need for regular A&A and/or on account of being HB. The issue of entitlement to a TDIU has been raised by the Veteran explicitly during the pendency of these other claims on appeal, one of which is for a higher rating for a disability already determined to be the result of his military service (i.e., service connected). Therefore, the Board is assuming jurisdiction over this TDIU claim since part and parcel, i.e., derivative, of other claims on appeal – including especially the increased-rating claim. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). This TDIU claim and the claim for SMC are “inextricably intertwined” with the other claims requiring further development. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the other issue). Therefore, adjudication of these claims for a TDIU and SMC must be deferred pending completion of the development concerning the other claims. These matters are REMANDED for the following actions: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his claims, VA and/or private, following proper procedures (38 C.F.R. §§ 3.159(c) and (e)). 2. After obtaining all additional treatment or other relevant records, afford the Veteran a VA mental health examination, preferably with a psychologist or psychiatrist who reviews the claims file. Based upon the claims file review, an interview of the Veteran, and the examination findings, the examiner is asked to address the following questions: (a.) Did the Veteran’s ADHD clearly and unmistakably (obviously or manifestly) exist prior to his entrance into service? If it did, was it also clearly and unmistakably (obviously or manifestly) NOT aggravated during or by his service (meaning not worsened at all or, if worsened, not beyond the condition’s natural progression)? (b.) If the VA examiner concludes there is no clear and unmistakable evidence that the Veteran’s ADHD existed prior to his service and was not aggravated by his service, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s ADHD instead began during his service or is otherwise related to a disease, event, or injury in service? The examiner must provide rationale for all opinions provided, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. The absence of evidence of treatment for ADHD in the Veteran’s service treatment records (STRs) cannot, alone, be sufficient reason for providing an unfavorable opinion. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 3. Obtain a supplemental (addendum) medical opinion regarding the etiology of the Veteran’s claimed DVT and early stasis dermatitis, which he is alleging are secondary to his service-connected right ankle disability. If necessary to respond to the questions being asked, schedule him for another VA examination to obtain this needed additional comment concerning the nature and etiology of these claimed disabilities. All indicated testing and evaluation must be completed and the findings reported in detail. All relevant medical records must be made available to the examiner for review. After reviewing the claims file, including this remand, the examiner is asked to answer the following questions: (a.) If, as the prior VA examiner concluded, the Veteran’s service-connected right ankle disability did not cause his DVT and early stasis dermatitis, is it alternatively at least as likely as not (a 50 percent probability or greater) that his DVT and/or early stasis dermatitis are instead aggravated by his service-connected right ankle disability? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the DVT and/or early stasis dermatitis by the service-connected right ankle disability. The absence of evidence of treatment for DVT and/or early stasis dermatitis in the Veteran’s STRs cannot be the reason for providing an unfavorable opinion, certainly not since the claims are predicated on secondary service connection (not direct or presumptive service connection). The Veteran is competent to report his symptoms and history, and these reports must be acknowledged and considered in formulating responses. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. It is essential the examiner provide explanatory rationale, whether responding favorably or unfavorably, preferably citing to specific evidence in the file supporting conclusions and/or accepted medical authority. 4. Schedule the Veteran for a VA examination with an appropriate clinician to reassess the severity of his service-connected right ankle disability. A copy of this remand and all relevant medical records should be made available to the examiner for review. The examiner must review the pertinent evidence, including the Veteran’s lay assertions, and undertake all indicated testing and evaluation. All testing indicated by the current Disability Benefits Questionnaire (DBQ) format must be done or explanation provided as to why it could not be completed. The examiner should report all signs and symptoms necessary for rating the Veteran’s right ankle disability under the applicable rating criteria. To this end the examiner should provide the range of motion in degrees of the right ankle. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, if possible. If the examiner is unable to conduct the required testing, he or she should clearly discuss why in the report. The presence of objective evidence of pain, premature or excess fatigability, incoordination and weakness also should be noted, as should any additional disability (including additional limitation of motion) due to these factors. The examiner shall inquire as to periods of flare-up and note the frequency and duration of any such flare-ups. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In reassessing the severity of the Veteran’s disability, the examiner is asked to address the extent to which the functional impairment caused by this disability impairs the Veteran’s ability to meet the demands of a job, whether sedentary or physical, and the timeframe in which this impairment arose.   All opinions and conclusions by the examiner, irrespective of whether favorable or unfavorable to the claim, must be sufficiently explained - preferably citing to supporting evidence in the file and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.