Citation Nr: 20031966 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 18-31 123 DATE: May 6, 2020 ORDER 1. The reduction in disability rating for left ankle traumatic arthritis from 40 percent to 20 percent, effective April 1, 2018, was proper and a restoration of the 40 percent disability rating is denied. 2. The petition to reopen a claim for service connection for a right ankle disability as secondary to service-connected left ankle traumatic arthritis is granted. 3. The petition to reopen a claim for service connection for a left knee disability as secondary to service-connected left ankle traumatic arthritis is granted. 4. The petition to reopen a claim for service connection for a right knee disability as secondary to service-connected left ankle traumatic arthritis is granted. 5. Entitlement to service connection for a right ankle disability as secondary to service-connected left ankle traumatic arthritis is denied. 6. Entitlement to service connection for a left knee disability as secondary to service-connected left ankle traumatic arthritis is denied. 7. Entitlement to service connection for a right knee disability as secondary to service-connected left ankle traumatic arthritis is denied. FINDINGS OF FACT 1. The finding of clear and unmistakable error in the award of a 40 percent rating was based upon the service-connected left ankle traumatic arthritis not being manifested by ankylosis. 2. A July 2005 rating decision denied the Veteran’s claims of entitlement to service connection for right ankle and bilateral knee disabilities. A subsequent September 2006 rating decision again denied the Veteran’s claims of entitlement to service connection for right ankle and right knee disabilities. The Veteran did not submit a timely notice of disagreement (NOD) or submit timely new and material evidence following these rating decisions. 3. Evidence received since the July 2005 and September 2006 rating decisions was not previously of record, or cumulative or redundant of evidence already of record, relates to an unestablished fact necessary to substantiate the Veteran’s claims of entitlement to service connection for right ankle and bilateral knee disabilities and therefore, raises a reasonable possibility of substantiating the claims. 4. The preponderance of the evidence is against a finding that a right ankle disability is caused or aggravated by the service-connected left ankle traumatic arthritis. 5. The preponderance of the evidence is against a finding that a left knee disability is caused or aggravated by the service-connected left ankle traumatic arthritis. 6. The preponderance of the evidence is against a finding that a right knee disability is caused or aggravated by the service-connected left ankle traumatic arthritis. CONCLUSIONS OF LAW 1. The reduction in disability rating for left ankle traumatic arthritis from 40 percent to 20 percent, effective April 1, 2018, was proper and the criteria for a restoration of a 40 percent rating have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.105, 4.71a, Diagnostic Codes (DCs) 5270-71 (2019). 2. The July 2005 rating decision that denied the Veteran’s claim for service connection for a left knee disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.201, 20.1103 (2019). 3. The September 2006 rating decision that denied the Veteran’s claims of entitlement to service connection for right ankle and right knee disabilities is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.201, 20.1103 (2019). 4. New and material evidence sufficient to reopen the Veteran’s claims of entitlement to service connection for right ankle and bilateral knee disabilities has been added to the record. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 5. The criteria for service connection for a right ankle disability as secondary to service-connected left ankle traumatic arthritis have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 6. The criteria for service connection for a left knee disability as secondary to service-connected left ankle traumatic arthritis have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 7. The criteria for service connection for a right knee disability as secondary to service-connected left ankle traumatic arthritis have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1985 to August 1985 and from October 1987 to April 1990. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2020 Central Office hearing in Washington, D.C., and a transcript of the hearing has been associated with the claims file. To the extent that the Veteran has previously asserted a potential claim for an earlier effective date for the award of a 40 percent disability rating for left ankle traumatic arthritis, the Board notes that issue was specifically addressed within the April 2018 statement of the case (SOC) wherein the Veteran was advised that the earlier effective date claim was rendered moot by the finding of clear and unmistakable error (CUE) with respect to the assignment of the 40 percent disability rating. As such, the issue was not part of the Veteran’s appeal as certified to the Board. Additionally, the parties discussed the issue during the February 2020 Board hearing and essentially agreed that the finding of CUE rendered the earlier effective date claim moot. As such, the issue of entitlement to an earlier effective date for a 40 percent disability rating for left ankle traumatic arthritis is not properly before the Board and need not be addressed herein. Finally, the Board acknowledges the Veteran’s assertion, including at the February 2020 Board hearing, that he was prejudiced by the fact that the decision review officer (DRO) who issued the SOC was different from the DRO who held the prior June 2017 informal conference. Notably, the Board has carefully reviewed the evidence of record and considered the Veteran’s claims de novo, as it is required to do. As such, while the Board has considered the Veteran’s statements in this regard, the Board finds no prejudice to the Veteran as a result of involvement by separate DROs. 1. Whether the reduction in the disability rating for left ankle traumatic arthritis from 40 percent to 20 percent, effective April 1, 2018, was proper. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran at the Veteran’s latest address that he or she has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). Here, however, the Board is mindful that despite the reduction implemented by an April 2018 rating decision, the Veteran’s overall combined disability rating (and the VA compensation related thereto) was not reduced, as the Veteran remained in receipt of a total disability rating based on individual unemployability from October 1, 2005. As such, the provisions of 3.105 are inapplicable. Notably, the highest available disability rating for an ankle disability based upon limitation of motion under DC 5271 is 20 percent, which is warranted for marked limited motion of the ankle. The only avenue for an increased disability rating in excess of 20 percent is DC 5270, under which a potential 30 percent or 40 percent disability rating is warranted; however, for either rating, ankylosis of the ankle must be present. With respect to the Veteran’s reduction in disability rating for left ankle traumatic arthritis from 40 percent to 20 percent, effective April1, 2018, the April 2018 rating decision explained that the reduction was based on a finding of CUE in the August 2014 rating decision which assigned a disability rating of 40 percent as the evidence at the time of the August 2014 rating decision did not in fact show any ankylosis of the Veteran’s left ankle. Indeed, the Board notes that the August 2014 VA examiner specifically noted that there was no ankylosis of the left ankle, and the additional objective evidence of record, including private and VA treatment records, does not otherwise document any left ankle ankylosis. Moreover, at the February 2020 Central Office hearing, the Veteran and his representative agreed that there was CUE in the assignment of a 40 percent disability rating because there was no ankylosis in the left ankle, and the Veteran testified that he maintained some limited movement in his ankle. In conclusion, the Board finds that the reduction in disability rating for left ankle traumatic arthritis from 40 percent to 20 percent, effective April 1, 2018, was proper, there is no reasonable doubt to be resolved, and the claim for a restoration of the 40 percent disability rating is denied. New and Material Evidence & Service Connection 1. Whether new and material evidence has been received to reopen a claim for service connection for a right ankle disability as secondary to service-connected left ankle traumatic arthritis. 2. Whether new and material evidence has been received to reopen a claim for service connection for a left knee disability as secondary to service-connected left ankle traumatic arthritis. 3. Whether new and material evidence has been received to reopen a claim for service connection for a right knee disability as secondary to service-connected left ankle traumatic arthritis. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, a claim may be reopened if new and material evidence is submitted. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. In a July 2005 rating decision, the RO denied the Veteran’s claims for service connection for a right ankle and bilateral knee disabilities, as these conditions were not incurred in or caused by active service. The Veteran did not thereafter file a timely notice of disagreement (NOD) to initiate an appeal as to the denied claims or submit new and material evidence within one year of the July 2005 rating decision. As such, the July 2005 rating decision is final. Similarly, a subsequent September 2006 rating decision denied the Veteran’s claims for service connection for a right ankle and right knee disabilities, as service treatment records did not document the claimed conditions and there was no evidence showing a relation between the conditions and active service or any service-connected disability. The Veteran was notified of the rating decision and his appeal rights that same month, but he did not thereafter file a timely NOD to initiate an appeal as to the denied claims or submit new and material evidence within one year of the September 2006 notification letter. As such, the September 2006 rating decision is final. Since the prior final July 2005 and September 2006 rating decisions, relevant evidence added to the record includes an August 2014 VA examination report, which revealed diagnoses of a right ankle condition, status post achilles tendon injury, and bilateral knee osteoarthritis, which the VA examiner ultimately opined were not secondary to the Veteran’s service-connected left knee arthritis. Subsequently, the Veteran’s private treatment records document a November 2014 positive nexus opinion that his right ankle and bilateral knee conditions were caused by his gait abnormality secondary to severe left ankle posttraumatic arthritis. Similarly, a March 2019 private treatment record documents an additional positive nexus opinion that the Veteran’s right ankle and bilateral knee conditions are more likely a secondary condition to his service-connected left ankle due to the Veteran’s gait change. The Board finds that the above-described private medical evidence constitutes new and material evidence sufficient to warrant reopening of the Veteran’s claims, as it was not of record at the time of the prior final July 2005 and September 2006 rating decisions, and such evidence relates to a material element of the Veteran’s claim, namely whether the Veteran’s right ankle and bilateral knee conditions are related to his service-connected left ankle disability. Given the above, the Veteran’s claims for service connection for a right ankle and bilateral knee disabilities are reopened. 4. Entitlement to service connection for a right ankle disability as secondary to service-connected left ankle traumatic arthritis. 5. Entitlement to service connection for a left knee disability as secondary to service-connected left ankle traumatic arthritis. 6. Entitlement to service connection for a right knee disability as secondary to service-connected left ankle traumatic arthritis. As discussed above, the Veteran’s claims for service connection for a right ankle and bilateral knee disabilities have been reopened. The Veteran claims, including within his February 2020 testimony, that his right ankle and bilateral knee disabilities are secondary to his service-connected left ankle traumatic arthritis due to an altered or antalgic gait caused by his service-connected left ankle traumatic arthritis. However, following a review of the evidence of record, and as discussed below, the Board finds that the preponderance of evidence weighs against the Veteran’s claims. The reasons for this decision follow. Service connection may be granted on a secondary basis for a current disability which is proximately due to or the result of a service-connected disease or injury. 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. Regarding a current disability, post-service VA and private treatment records each document current disabilities involving the Veteran’s right ankle and bilateral knees. For example, the August 2014 VA examination revealed diagnoses of a right ankle condition, status post achilles tendon injury, and bilateral knee osteoarthritis. Similarly, private treatment records from November 2014 and March 2019 document his chronic right ankle arthropathy and bilateral knee osteoarthritis. Additionally, the Board is mindful that the Veteran is already service connected for left ankle traumatic arthritis from March 1996. Thus, the Veteran has satisfied the first two elements of his claims for secondary service connection. However, as to a nexus between the Veteran’s current right ankle and bilateral knee disabilities and the service-connected left ankle traumatic arthritis, the Board finds that the preponderance of the evidence weighs against such a finding. In this regard, the Board acknowledges that there is probative evidence that weighs both in favor and against the Veteran’s claims. For example, private treatment records from November 2014 document the Veteran’s complaints of bilateral ankle and bilateral knee pain. The Veteran reported that his ankles hurt him throughout his Army medic career and his knee complaints began in the late 1990s but denied any specific injury. He noted that since his disability retirement from his Post Office career of 20 years, he had worsening complaints of pain in both knees and ankles. His private physician, Dr. Howard Weiss, D.O., stated his belief that the Veteran’s right ankle and bilateral knee interchanges as well as pain are caused by his gait abnormality secondary to severe left ankle posttraumatic arthritis. Similarly, in March 2019, the Veteran’s private physician, Dr. Mark Gould, M.D., opined that the Veteran’s right ankle and bilateral knee arthritis are more likely a secondary condition to his service-connected left ankle due to the Veteran’s gait change. Conversely, upon VA examination in August 2014, a VA examiner opined that the Veteran’s current right ankle condition and bilateral knee osteoarthritis were less likely as not secondary to his service-connected left ankle and at least as likely as not due to the natural aging process and obesity. In support of this opinion, the VA examiner stated that there is no medical evidence of a causal connection between the Veteran’s left ankle condition and his right ankle or bilateral knee conditions, and no research study that shows arthritis in one ankle causes arthritis in the other ankle or in the knees, particularly when the effects of additional factors such as aging, weight gain, and occupational/daily stresses were also considered. The examiner specifically noted that the Veteran’s mild degenerative changes in both knees was consistent with aging, and that the Veteran’s obesity is considered to be one of the most important risk factors for osteoarthritis in the knees, as numerous medical studies show a strong association between obesity and knee osteoarthritis. Having considered the above conflicting medical opinions, the Board affords more probative value to the negative nexus opinions of the August 2014 VA examiner. While the Board has considered the November 2014 and March 2019 private nexus opinions, the conclusion of each of these private physicians that the Veteran’s current right ankle and bilateral knee conditions were due to gait abnormality secondary to severe left ankle posttraumatic arthritis lacks a supporting rationale, which significantly lowers the probative value of each private opinion. Conversely, the Board finds that that August 2014 VA examiner’s opinions are well supported by a detailed rationale, which attributed the Veteran’s claimed conditions to the natural aging process and obesity, based upon references to supporting medical studies and literature. Given the above, the more probative VA opinion weighs against the Veteran’s claims. The Board has also considered the lay evidence of record, including the Veteran’s lay statements that assert that his right ankle and bilateral knee conditions are related to his service-connected left ankle arthritis, including due to an altered or antalgic gait. Moreover, even acknowledging the Veteran’s prior military service as an Army medic, his claims regarding an antalgic or altered gait are presumably observable to a layperson. However, the Board finds that the ultimate question of a secondary nexus in this case involves medical expertise which extends beyond that which is immediately observable to a layperson or a simple cause-and-effect relationship understandable given the Veteran’s prior training as an Army medic. As such, the question of secondary etiology in this case may not be competently addressed by lay evidence, and the assertions of the Veteran and/or his representative lack probative value in the context of his claims. In conclusion, the Board finds that the preponderance of the evidence weighs against the Veteran’s claims for service connection for a right ankle and bilateral knee disabilities. As such, there is no reasonable doubt to be resolved, and the claims for service connection are denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, Counsel 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.