Citation Nr: 20008089 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 18-54 488 DATE: January 30, 2020 ORDER Entitlement to service connection for a right ankle condition, secondary to service-connected left hip and left ankle disabilities, is granted. Entitlement to service connection for a right hip condition, secondary to service-connected left hip and left ankle disabilities, is granted. Entitlement to service connection for a lower back condition, secondary to service-connected left hip and left ankle disabilities, is granted. Entitlement to service connection for a cervical spine condition, to include as secondary to service-connected left hip and left ankle disabilities, is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s right ankle strain with retrocalcaneal spur is aggravated by his service-connected left hip and left ankle disabilities. 2. The evidence is at least evenly balanced as to whether the Veteran’s right hip strain is aggravated by his service-connected left hip and left ankle disabilities. 3. The evidence is at least evenly balanced as to whether the Veteran’s lumbosacral strain is aggravated by his service-connected left hip and left ankle disabilities. 4. The Veteran’s service-connected left hip and left ankle disabilities did not cause or aggravate his degenerative joint disease of the cervical spine. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability as secondary to service-connected left hip and left ankle disabilities are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a right hip disability as secondary to service-connected left hip and left ankle disabilities are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a lumbar spine disability as secondary to service-connected left hip and left ankle disabilities are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for a cervical spine disability as secondary to service-connected left hip and left ankle disabilities are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from March 1976 until February 1979. This decision is before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office. The Veteran filed a timely notice of disagreement (NOD) and substantive appeal. In August 2019, the Board remanded the claims for further development. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a claimed disability may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a). The Veteran is service-connected for degenerative joint disease (DJD) of the left hip and degenerative joint disease of the left ankle with sprain and instability. 1. Entitlement to service connection for a right ankle disability The Veteran contends that his right ankle sprain is aggravated by his left hip and ankle disabilities. Service treatment records (STRs) do not reflect a diagnosis, treatment, or symptoms of a right ankle disability. Post-service, in January 2007 during a podiatry consult, the Veteran reported that he experienced sharp pain in both ankles and both ankles frequently give out on him. Bone imaging from January 2008 reveal arthritic changes in both ankles. VA treatment records from February 2008 reflect that a physician reported that films reflect obvious DJD in the right ankle. The Veteran was assessed with ligamentous laxity in his left and right ankle. A November 2015 VA examination report reflects that the Veteran had a diagnosis of right ankle strain with retrocalcaneal spur. Radiology imaging of the right ankle revealed retrocalcaneal spur and small calcification beneath the tip of the fibula. The Veteran reported that the date of onset of the symptoms was 1990. He reported that it began due to an incident in the Army where he ran into a pole injuring his left side. The examiner found that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service-connected condition. As rationale, he reported that after reviewing all medical evidence, his opinion is consistent with the medical records. The Veteran was seen on January 2015 and had no complaint of right ankle pain. There were no medical records for right ankle pain found. He stated that there is no association between the left hip DJD or ankle sprain and right ankle based on the medical records. He concluded that based on a lack of evidence to support the claim, his current right ankle strain is less likely than not service-connected. An August 2019 addendum opinion reflects that the physician found that it is at least as likely as not that the Veteran’s service-connected disabilities aggravated the right ankle condition beyond its natural progression. He noted that there is documentation of falls in the medical records due to the Veteran’s service-connected conditions as well as the Veteran’s lay testimony regarding falls. There is a history of treatment for physical therapy of both ankles related to the service-connected condition and the legs giving out/falls. There is an established medical nexus. Upon review of the evidence of record, the Board concludes that the Veteran has a current diagnosis of right ankle strain that is, at least in part, aggravated by his service-connected left ankle and hip disabilities. See 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303 (a), 3.310. Although the November 2015 VA examiner found that the Veteran had a current right ankle disability, he concluded that there was no evidence establishing an association between the left ankle and hip disabilities and the right ankle disability. However, the November 2015 VA examiner failed to take into account the numerous complaints of right ankle pain that were documented prior to 2015 and failed to address aggravation. Thus, the opinion has less probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). In contrast to the above opinion, the August 2019 positive medical opinion was based on the Veteran’s statements, examination, and a review of the medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). To be adequate, an examination must take into account an accurate history. Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008). Additionally, the August 2019 addressed aggravation as well. Thus, the Board finds this opinion to be probative. Given the adequate positive medical nexus, the evidence is at least evenly balanced as to whether the Veteran’s right ankle strain is aggravated by his service-connected left hip and left ankle disabilities. 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 right ankle strain secondary to left hip and ankle disabilities is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a right hip disability The Veteran contends that his right hip strain is aggravated by his service-connected left hip and ankle disabilities. STRs do not reflect a diagnosis, treatment, or symptoms of a right hip disability. Post-service, an October 2007 CT scan of the pelvis revealed his pelvis was consistent with degenerative arthritis. A January 2008 bone imaging study revealed possible old fractures in both hips. A January 2015 VA examination of the hip revealed that the examiner noted that right hip adduction ended at 25 degrees and there was no objective evidence of painful motion. Right hip abduction ended at 45 degrees and there was no objective evidence of painful motion. Right hip internal rotation ended at 40 degrees and there was no objective evidence of painful motion. Right hip external rotation ended at 60 degrees and there was no objective evidence of painful motion. Right hip post-test adduction ended at 25 degrees. Right hip post-test abduction ended at 45 degrees. Right hip post-test internal rotation ended at 40 degrees. Right hip post-test external rotation ended at 60 degrees. There was no right hip diagnosis. Radiology imaging of the right hip from November 2015 revealed small bony condensation lateral aspect of the acetabulum and small spur or small osteochondroma. A November 2015 VA opinion revealed that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. As rationale, he reported that after reviewing all medical evidence, his opinion is consistent with the medical records. The examiner noted that during the January 2015 exam, he had no complaint of right hip and right ankle pain and the examination was completely normal for the right hip and right ankle. On January 2007, he was seen at the VA and had a normal gait. He noted that there are no medical records for right hip strain and there is no association between the left hip DJD or ankle sprain and right hip strain. He reported that the Veteran’s current right hip strain is less likely than not service-connected. An August 2019 addendum opinion reflects that the physician found that it is as likely as not that the Veteran’s service-connected disabilities aggravated the right hip condition beyond its natural progression. There is a documentation of falls in the medical records due to the Veteran’s service-connected conditions as well as the Veteran’s lay testimony regarding falls. There is a history of treatment for physical therapy of both hips related to the service-connected conditions and the legs giving out/falls. He concluded that there is an established medical nexus. Upon review of the evidence of record, the Board concludes that the Veteran has a current diagnosis of right hip strain that is, at least in part, aggravated by his service-connected left ankle and hip disabilities. See 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303 (a), 3.310. Although the November 2015 VA examiner found that the Veteran had a current right hip disability, he concluded that there was no evidence establishing an association between the left ankle and hip disabilities and the right hip disability. However, the November 2015 VA examiner failed to take into account the numerous radiology imaging reports reflecting right hip disabilities and complaints of pain; and, failed to address aggravation. Thus, the opinion has less probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). In contrast to the above opinion, the August 2019 positive medical opinion was based on the Veteran’s statements, examination, and a review of the medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). To be adequate, an examination must take into account an accurate history. Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008). Additionally, the August 2019 addressed aggravation as well. Thus, the Board finds this opinion to be probative. Given the adequate positive medical nexus, the evidence is at least evenly balanced as to whether the Veteran’s right hip strain is aggravated by his service-connected left hip and left ankle disabilities. 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 right hip strain secondary to left hip and ankle disabilities is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a lumbar spine disability The Veteran contends that his lumbar spine strain is aggravated by his service-connected left hip and ankle disabilities. STRs reflect recurrent complaint of back pain and a diagnosis of muscle strain. At separation, the examiner noted a normal clinical evaluation of the spine. Post-service, October 2007 radiology imaging of the lumbar spine revealed DJD. A November 2015 VA examination report reflects that the Veteran had a diagnosis of degenerative arthritis of the spine with 1st anterior spondylolisthesis L4-5 and slight retrolisthesis L3-4. Radiology imaging of the lumbosacral spine revealed early vascular calcification, early anterior degenerative osteophytes at all levels, first degree anterior spondylolisthesis L4-5, slight retrolisthesis L3-4, and Schmorl’s node inferior endplate L5. The Veteran reported that the date of onset of symptoms was 1990. He reported that it began secondary from one side carrying the other side for years. The examiner found that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. As rationale, he reported that after reviewing all medical evidence, his opinion was consistent with the medical records. On December 2010, a CT scan revealed foraminal narrowing L5, his problem list included degenerative disc disease. There were no medical records for lumbar DJD. There was no association between the left hip DJD or ankle sprain and lumbar DJD were found based on the medical records. He reported that it was most likely age-related deterioration of the lumbar spine. He concluded that based on a lack of evidence to support the claim, his current lumbar DJD is less likely than not service-connected. A November 2018 VA examination report reflects that the Veteran had a diagnosis of lumbosacral strain. He reported that the date of onset of the symptoms is 1997. He reported that this condition began during physical training and has worsened. The examiner opined that after performing a physical examination and reviewing medical records, it is less likely than not that the veteran’s lumbosacral strain condition is related to military service. He stated that records showed that the veteran was diagnosed with muscle strain in the lower back and treated while on active duty. However, there are no medical records showing progressive and continuation of lower back pain and treatment or any related back condition while veteran was still in active service and after active duty. An August 2019 addendum VA medical opinion reflects that the physician found that there is a reasonable medical nexus for aggravation of the Veteran’s back condition due to the service-connected conditions. The Veteran has documented falls with chronic lower back pain. Given the service-connected left hip condition and service-connected left ankle condition, they could reasonably be expected to be aggravated due to gain changes and the falls. Upon review of the evidence of record, the Board concludes that the Veteran has a current diagnosis of a lumbar spine strain that is, at least in part, aggravated by his service-connected left ankle and hip disabilities. See 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303 (a), 3.310. Although the November 2015 and November 2018 VA examiners found that the Veteran had a current lumbar spine disability, they concluded that there was no evidence establishing an association between the left ankle and hip disabilities and the right hip disability as well as the lumbar spine and active military service. However, the November 2015 VA examiner failed to take into account the Veteran’s numerous documented complaints of back pain as well as his complaint that it was due to supporting his left hip and left ankle; and, failed to address aggravation. Thus, the opinion has less probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). In contrast to the above opinion, the August 2019 positive medical opinion was based on the Veteran’s statements, examination, and a review of the medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). To be adequate, an examination must take into account an accurate history. Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008). Additionally, the August 2019 addressed aggravation as well. Thus, the Board finds this opinion to be probative. Given the adequate positive medical nexus, the evidence is at least evenly balanced as to whether the Veteran’s lumbar spine strain is aggravated by his service-connected left hip and left ankle disabilities. 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 lumbar spine strain secondary to left hip and ankle disabilities is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for cervical strain The Veteran contends that his cervical spine DJD is aggravated by his service-connected left hip and ankle disabilities. STRs reflect that in April 1977, the Veteran had an “extremely mild” muscle strain of the upper back. He complained of cervical strain. The separation report of medical examination reflects a normal clinical evaluation of the musculoskeletal system. Post-service, January 2007 radiology imaging reveals spondylosis of the cervical spine at C5 and C6 manifested by osteophytes and some decrease in interspace. There was no evidence of compression fractures. An October 2007 radiology imaging report reflects X-rays of the cervical spine show DJD. The November 2015 VA examination report reflects a diagnosis of degenerative arthritis of the spine. Radiology imaging of the cervical spine revealed anterior degenerative osteophytes C4, C5, and C6; spurs and/or narrowing neural foramen C2-3 on the right, C3-4 and C4-5 bilaterally, and C5-6 on the right and C6-7 bilaterally. The Veteran reported that the date of onset of the symptoms was 1990 and began secondary. The examiner found that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. As rationale, he reported that after reviewing all medical evidence, his opinion is consistent with the medical records. He noted that no medical records for cervical DJD were found. There was no association between the left hip DJD or ankle sprain and cervical DJD were found based on the medical records. He reported that it was most likely age-related deterioration of the cervical spine. He concluded that based on lack of evidence to support the claim, the Veteran’s current cervical DJD is less likely than not service-connected. An August 2019 VA addendum opinion reflects that the VA physician reported that it is less likely than not that the Veteran’s neck condition, DJD of the cervical spine, was aggravated beyond its natural progression by the Veteran’s service-connected conditions. He noted that there is no documented record of neck injury or axial spine trauma due to the falls and/or service-connected conditions. He concluded that there is no etiological or anatomic relationship and therefore no established medical nexus for an aggravation. Considering the pertinent evidence of record above, the claim for service connection for cervical DJD, to include on a secondary basis, must be denied. Based on a review of the available records, his particular expertise, and medical literature, the November 2015 and August 2019 VA examiners found that the cervical DJD was less likely than not (less than 50 percent probability) proximately due to or the result or aggravated by his service-connected left ankle and hip disabilities. As the physicians explained the reasons for their conclusions based on an accurate characterization of the evidence of record, the opinions, addressing both causation and aggravation, is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is competent and probative medical evidence with substantial and adequate rationale explaining that the Veteran’s cervical DJD is age-related and not related to his active military service. To the extent that the Veteran, including through his representative, has opined that his cervical DJD is related to service and/or left ankle and hip disabilities, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran’s contentions as to the etiology of his cervical DJD relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (witness capable of diagnosing varicose veins, for example). The Veteran’s statements are therefore not competent in this regard. To the extent that these lay statements are credible, the Board finds the specific, reasoned opinions of the VA examiner to be of greater probative weight than the Veteran’s more general lay assertions. For the foregoing reasons, the preponderance of the evidence is against the claim for cervical DJD on a direct and secondary basis. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.