Citation Nr: 20008232 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 18-04 836 DATE: January 30, 2020 ORDER Entitlement to service connection for a right ankle disability is denied. REMANDED Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability. FINDING OF FACT The probative evidence of record does not establish a current right ankle disability. CONCLUSION OF LAW The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1974 to July 1976 and from February 1982 to February 2002. The Veteran appealed his case to the U. S. Court of Appeals for Veterans Claims (Court), and in an August 2019 Order, the Court granted the parties' Joint Motion for Remand (Joint Motion), vacated the Board's denial, and remanded the matter to the Board for development consistent with the Joint Motion. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Service Connection Entitlement to service connection for a right ankle disability The Veteran claims entitlement to service connection for a right ankle disability. Specifically, the Veteran contends that his claimed current right ankle disability was incurred during or caused by his period of active service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). At present, the probative evidence of record does not establish a current right ankle disability. The Board acknowledges that medical treatment records from July 2015 to February 2017 obtained from the Naval Hospital in Camp Lejeune list a diagnosis of osteoarthritis of the ankles in the Veteran’s medical history. However, no other treatment record, to include x-ray studies, for osteoarthritis of the right ankle is contained within the record. In addition, the Veteran’s right ankle was evaluated in VA ankle conditions disability benefits questionnaires completed in April 2017 and May 2019. Neither DBQ noted a diagnosis of osteoarthritis of the right ankle. The April 2017 ankle conditions DBQ noted the Veteran’s reports of right ankle pain with onset during his active service, and a report of a significant right ankle injury that required casting in 1985. The Veteran also reported pain while standing and walking for extended periods of time and a sensation of instability. The Veteran’s right ankle had normal range of motion that did not decrease after repetitive use testing. The right ankle also had normal muscle strength, no signs of atrophy or ankylosis, and no suspected joint instability. The Veteran did not require use of an assistive device for ambulation. The examiner noted that the Veteran’s right ankle pain did not impact his ability to perform any type of occupational task. Following examination of the Veteran, the VA examiner opined: After thorough review of the veteran’s history and medical documentation, in addition to a physical examination, there does not appear to be any significant ankle pathology at this time...The Veteran does endorse pain, however, which may be secondary to old injuries. There is no current pathology other than subjective pain. A May 2019 VA ankle conditions DBQ noted the Veteran’s reports of ankle pain that had its onset during his active military service. The Veteran was not diagnosed with a right ankle disability. The Veteran exhibited normal range of motion, both before and after repetitive use testing. The Veteran had normal muscle strength and joint stability. There was no evidence of ankylosis or muscle atrophy. The Veteran did not require an assistive device for locomotion. No arthritis was documented in x-rays performed on the Veteran’s ankle. The VA examiner did not note a functional impairment resulting from the Veteran’s right ankle disability. The examiner noted, “there is no objective evidence to warrant a diagnosis for claimed osteoarthritis at this time.” The Veteran’s current VA treatment records are also silent for a diagnosis of a right ankle disability. Based on the above discussed medical evidence, the Board finds that the probative medical evidence of record does not establish a current disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran is competent to report symptoms observable to a layperson, including right ankle pain, and has presented credible statements in this regard. See Davidson v. Shinseki, 581 F.3d 1313 (2009). However, pain itself does not establish a current disability. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that to establish a disability, the Veteran’s pain must amount to a functional impairment, and that the Veteran must show that the pain reaches the level of a functional impairment of earning capacity. As noted in the VA ankle conditions DBQs, the Veteran’s right ankle disability does not manifest in functional impairment. The Board concludes that the preponderance of the evidence is against the claim for service connection for the Veteran’s claimed right ankle disability. The benefit of the doubt rule therefore does not apply, and service connection for this claimed disability is not warranted. THE REASONS FOR REMAND Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability The Veteran claims entitlement to service connection for a right knee disability. Specifically, the Veteran contends that his right knee disability is or was caused or aggravated by his left knee disability. Service connection may be established on a secondary basis 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). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). At present, the Veteran’s claim for service connection of his left knee disability is pending adjudication. Because the Veteran’s claim for service connection for a left knee disability has not been decided, and his claim for service connection for a right knee disability is reliant on service connection for the left knee disability, the issues are inextricably intertwined, and a remand is required. In addition, in an August 2019 Joint Motion, the parties involved agreed that the Veteran’s claim should be remanded to the agency of original jurisdiction (AOJ) for a new VA knee and lower leg conditions examination, as the April 2017 examination was determined to be inadequate. In November 2019, the Veteran completed a VA knee and lower leg conditions (DBQ), however, neither the examination nor the medical opinion discusses the Veteran’s right knee pain, possible osteoarthritis of the right knee, or potential causation or aggravation of the right knee due to his claimed left knee disability. The Board finds that the November 2019 VA knee and ankle DBQ does not meet the requirements of August 2019 Joint Motion, and a remand is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his claimed right knee disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must opine as to the following: a. Does the Veteran have a current right knee disability? (Any current diagnosis of arthritis or osteoarthritis should be supported by x-ray or other clinical findings.) b. If so, it is at least as likely as not (50 percent or greater probability) that the Veteran's current right knee disability was incurred during or caused by his active service, or began within one year of separation from service. c. If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee disability was caused by his claimed left knee disability. d. If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disability was aggravated beyond its natural progression by his claimed left knee disability. The examiner’s opinion should address the Veteran’s Camp Lejeune Naval Hospital records from July 2015 to February 2017 noting that the Veteran’s medical history included a reported diagnosis of osteoarthritis of the knees. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues. 3. After all completed development, the AOJ should then readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. T.D. JONES Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, Associate Attorney 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.