Citation Nr: 20038087 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 17-14 610 DATE: June 3, 2020 ORDER Entitlement to service connection for a lumbar spine disorder, claimed as secondary to a service-connected left knee condition, is denied. Entitlement to service connection for a left ankle impairment, claimed as secondary to a service-connected left knee condition, is denied. FINDINGS OF FACT 1. The evidence of record is against finding that the Veteran’s lumbar spine disorder is secondary to his service-connected left knee condition or is otherwise related to an in-service injury, event, or disease. 2. The evidence of record is against finding that the Veteran’s left ankle impairment is secondary to his service-connected left knee condition or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder due to service or a service-connected left knee condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a), 3.310. 2. The criteria for service connection for a left ankle impairment due to service or a service-connected left knee condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1962 to December 1964. This case is on appeal before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In October 2018, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. These matters were previously before the Board in May 2019, at which time the Board remanded the issues of entitlement to service connection for a lumbar spine disorder and a left ankle impairment for additional development. Specifically, the Board ordered new VA examinations to address the questions of: (1) whether these disabilities are proximately related to the Veteran’s service-connected left knee condition and, if not, (2) whether these disabilities were aggravated beyond their natural progression by the Veteran’s service-connected left knee condition. The Board finds that the required development has now been completed. Stegall v. West, 11 Vet. App. 268 (1998). As such, the issues now return to the Board for final adjudication. Apart from the arguments addressed specifically below, neither the Veteran nor his representative has raised any specific issues concerning the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Also, neither the Veteran nor his representative has raised any issues concerning the hearing held before the undersigned. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Veteran seeks entitlement to service connection for a lumbar spine disorder and a left ankle impairment; he alleges that these disabilities are both secondary to his service-connected left knee condition. See March 2017 Form 9. The facts and testimony relevant to these issues were summarized in the May 2019 Board remand. That material is hereby incorporated by reference into this decision. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Moreover, for certain chronic diseases, which include degenerative arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). I. Lumbar Spine Disorder The Veteran seeks entitlement to service connection for a lumbar spine disorder, claiming that it is secondary to his service-connected left knee condition. He alleges that he limps because of his service-connected left knee condition, which in turn contributed to the development of this impairment. See March 2017 Form 9. In compliance with the May 2019 Board remand order, the Veteran was afforded a VA examination in December 2019. The examination report reflects review of the claims file and an in-person evaluation. The examiner noted the Veteran’s prior diagnosis of degenerative arthritis of the spine. He claimed to have developed lower back pain in 1965 without an acute injury; he subsequently underwent two spinal surgeries. During the examination, the Veteran complained of pain without radiation or dysesthesias. He visited a chiropractor to treat this condition. The examination report reflects abnormal range of motion, with forward flexion from zero to 75 degrees and extension from zero to 15 degrees. Nonetheless, the examiner opined that the Veteran’s lumbar spine disorder was less likely than not secondary to his service-connected left knee condition. The examiner pointed out that the Veteran was not diagnosed with left knee arthritis until October 2018. Moreover, scientific literature does not support the idea that “low grade knee osteoarthritis” causes degenerative changes in the spine. The examiner explained that the Veteran’s service treatment records show no evidence of a chronic left leg injury; this is consistent with the Veteran’s own statements during his December 1964 separation examination, in which he indicated that he was in good health and did not complain about limping or a chronic left leg injury. Since there was no statement from a person who witnessed the alleged in-service injury, there was no evidence to corroborate the Veteran’s account of a left leg disability and associated limping during and shortly after service. As such, the examiner concluded that, given the Veteran’s advanced age, his lumbar spine degenerative disc disease was “most probably” age-related. The examiner also found that the Veteran’s lumbar spine disorder was less likely than not was aggravated beyond its natural progression by his service-connected left knee condition. Indeed, the examiner reiterated that there was no evidence of a chronic back impairment or limping during service or soon after separation. Since there was no established baseline, any worsening would therefore be impossible to determine. In a May 2020 statement, the Veteran’s representative questioned the adequacy of the December 2019 VA examination. He argued that the VA examiner improperly dismissed secondary service connection due to the lack of evidence indicating the existence of a lower back disorder in service or within one year of separation. The Veteran’s representative alleged that this showing is not needed to support a claim for secondary service connection. Lastly, he pointed out that the Veteran uses a cane to walk, which allegedly undermines the examiner’s conclusion that there was no evidence of a chronic lumbar spine disorder. After careful consideration of the claims file, the Board concludes that the evidence of record is against finding that the Veteran’s lumbar spine disorder is secondary to his service-connected left knee condition or otherwise related to an in-service injury, event, or disease. The Board first notes that the evidence of record contains no indication of a diagnosed disability of arthritis or degenerative disc disease of the lumbar spine during service or within one year of the Veteran’s separation from active duty. While the Veteran claims to have experienced lower back pain since 1965, he is not competent to diagnose himself with arthritis or degenerative disc disease for reasons explained in greater detail below. Thus, since there is no evidence of spinal arthritis during service or within one year of discharge, there is no presumption of service connection in this instance. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Board has also considered service connection on an alternative basis under the theory of continuity of symptomatology. 38 C.F.R. § 3.303(b). However, the fact that the Veteran did not begin seeking regular treatment for back pain until 2009 weighs against finding that he has experienced symptoms associated with arthritis since service. Accordingly, service-connection on this basis is likewise unwarranted. The Board points out that the record contains competing medical opinions as to the nature and etiology of the Veteran’s lumbar spine disorder. The Board must thus determine how much weight to afford the opposing opinions. Guerrieri v. Brown, 4 Vet. App. 467, 471 (1993). The Board may weigh one medical professional's opinion over another, depending on factors such as the reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior evidence. Id. at 470-71 (“The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusions that the physician reaches.”). The Board must provide adequate reasons and bases if it adopts one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (noting that the Board may “favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases”). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight of the credibility of the evidence in the adjudication of the merits. Hernanadez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, the Board assigns little probative weight to the June 2013 opinion from Dr. N.L., a private physician who concluded that the Veteran’s limp was “throwing” his back. The sole basis for this conclusion appears to have been the Veteran’s subjective claims. Moreover, the Board points out that the opinion from Dr. N.L. is conclusory and unsupported by references to objective medical evidence. Indeed, he did not explain how the Veteran’s service-connected left knee impairment could have caused lumbar spine arthritis or cite to any medical authority to bolster his statement. By contrast, the December 2019 VA examiner conducted an in-person evaluation and reviewed the Veteran’s claims file, to include his service treatment records. Although the Veteran claimed to have experienced a left leg injury during service and limping in the years immediately following separation, the VA examiner found no objective medical evidence to corroborate these assertions. Given this absence, the VA examiner was unable to establish a baseline and thus offer an opinion as to worsening. Moreover, the VA examiner pointed out that existing medical literature does not support a link between knee osteoarthritis and degenerative changes in the spine. As such, the Veteran’s lumbar spine disorder was attributed to his advanced age. Given the thoroughness of these conclusions and their consistency with the evidence of record, the Board assigns the greatest probative weight to the opinion of the December 2019 VA examiner; it therefore adopts his conclusion that the Veteran’s lumbar spine disorder is not related to service or secondary to his service-connected left knee condition. The Board also recognizes the lay statements associated with the claims file, which allege that the Veteran’s lumbar spine disorder is related to service or secondary to his service-connected left knee condition. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to offer an opinion concerning the etiology of a complex medical condition. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). Here, while lay witnesses are competent to report pain and limping, they are not competent to state that the Veteran’s lumbar spine disorder is secondary to his service-connected left knee condition or otherwise related to service. Therefore, for the reasons discussed above, the Board finds that the opinion provided by the VA examiner in December 2019 is more probative than the lay assertions contained within the claims file. The VA examiner has expertise, education, and training none of the lay witnesses are shown to have. As such, that opinion is entitled to greater evidentiary weight. Lastly, the Board acknowledges the arguments set forth by the Veteran’s representative in the May 2020 statement, which allege numerous deficiencies in the December 2019 VA examination report. However, the Board finds that the Veteran’s representative mischaracterized the rationale of the VA examiner. The VA examiner did not conclude that there was no current lumbar spine disorder; rather, the VA examiner found no evidence of a current lumbar spine disorder related to service or a service-connected left knee condition. Moreover, though the Veteran’s representative is correct that in-service evidence of a disability is not necessary to substantiate a claim for secondary service connection, the Board points out that the Veteran has alleged the existence of a chronic left leg impairment and limping since 1965. As such, the examiner’s discussion of the Veteran’s service treatment records was necessary to respond to his claims. The Board thus determines that the contentions reflected in the May 2020 statement are completely without merit and finds no evidence of inadequacies in the December 2019 VA examination report. For the reasons set forth above, the Board concludes that the weight of the evidence is against finding that the Veteran’s lumbar spine disorder is related to service or secondary to his service-connected left knee condition. Although the Board acknowledges the lay statements to the contrary, the majority of the evidence is inconsistent with these assertions. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. at 58. Accordingly, the Veteran’s claim for service connection for a lumbar spine disorder, claimed as secondary to a service-connected left knee condition, is denied. II. Left Ankle Impairment The Veteran seeks entitlement to service connection for a left ankle impairment, claiming that it is secondary to his service-connected left knee condition. He alleges that he limps because of his service-connected left knee condition, which in turn contributed to the development of this disability. See March 2017 Form 9. In compliance with the May 2019 Board remand order, the Veteran was afforded a VA examination in December 2019. The examination report reflects review of the claims file and an in-person evaluation. Although he was not diagnosed with left ankle strain until February 2011, the Veteran stated that he developed left ankle pain in 1965. During the examination, he complained of bilateral ankle pain with ambulation but no pain during rest, popping, or locking. No specific treatment was documented. The Veteran exhibited reduced range of motion in his left ankle, with dorsiflexion from zero to 20 degrees and plantar flexion from zero to 20 degrees. The Veteran was also noted to use a cane occasionally. X-rays associated with the examination revealed no effusion or osteochondral abnormality in either ankle; however, small bilateral plantar calcaneal spurs were present. Nonetheless, the examiner opined that the Veteran’s left ankle impairment was less likely than not secondary to his service-connected left knee condition. The examiner pointed out that the Veteran was not diagnosed with left knee arthritis until October 2018. Moreover, scientific literature does not support the idea that “low grade ipsilateral knee osteoarthritis” causes ankle strain. The examiner explained that the Veteran’s service treatment records show no evidence of a chronic left leg injury; this is consistent with the Veteran’s own statements during his December 1964 separation examination, in which he indicated that he was in good health and did not complain about limping or a chronic left leg injury. Since there was no statement from a person who witnessed the alleged injury, there was no evidence to corroborate the Veteran’s account of a left leg disability and associated limping during service. The examiner also found that the Veteran’s left ankle impairment was less likely than not aggravated beyond its natural progression by his service-connected left knee condition. Indeed, the examiner reiterated that there was no evidence of a chronic left ankle disability or limping during service or soon after separation. Since there was no established baseline, any worsening would be impossible to determine. In a May 2020 statement, the Veteran’s representative questioned the adequacy of the December 2019 VA examination. He argued that the VA examiner improperly dismissed secondary service connection due to the lack of evidence indicating the existence of a left ankle impairment or limp in service or within one year of separation. The Veteran’s representative alleged that this showing is not needed to support a claim for secondary service connection. Lastly, he pointed out that the Veteran uses a cane to walk, which allegedly undermines the examiner’s conclusion that there was no evidence of a chronic left ankle impairment or limp. After careful consideration of the claims file, the Board concludes that the evidence of record is against finding that the Veteran’s left ankle impairment is secondary to his service-connected left knee condition or otherwise related to an in-service injury, event, or disease. The Board notes that the evidence of record contains two prior VA examination reports from February 2011 and May 2013. However, these evaluations were both found to be inadequate for the reasons explained in the May 2019 Board remand. By contrast, the opinion provided by the VA examiner in December 2019 contains comprehensive rationale as to the nature and etiology of the Veteran’s left ankle impairment. The VA examiner also conducted an in-person evaluation and had the opportunity to review the claims file, to include the Veteran’s service treatment records. Although the Veteran claims to have experienced a left leg injury during service and limping in the years immediately following separation, the VA examiner found no objective medical evidence to corroborate these claims. Given this absence, the VA examiner was unable to establish a baseline and thus offer an opinion as to worsening. Moreover, the VA examiner pointed out that existing medical literature does not support a link between knee osteoarthritis and ankle strain. Since there is no competent medical opinion evidence to contradict these findings, the Board assigns the greatest probative weight to the opinion of the December 2019 VA examiner; it therefore adopts his conclusion that the Veteran’s left ankle impairment is not related to service or secondary to his service-connected left knee condition. The Board also recognizes the lay statements associated with the claims file, which allege that the Veteran’s left ankle impairment is related to service or secondary to his service-connected left knee condition. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to offer an opinion concerning the etiology of a complex medical condition. See Jandreau, 492 F.3d 1372; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). Here, while lay witnesses are competent to report pain and limping, they are not competent to state that the Veteran’s left ankle impairment is secondary to his service-connected left knee condition or otherwise related to service. Therefore, for the reasons discussed above, the Board finds that the opinion provided by the VA examiner in December 2019 is more probative than the lay assertions contained within the claims file. The VA examiner has expertise, education, and training none of the lay witnesses are shown to have. As such, that opinion is entitled to greater evidentiary weight. Lastly, the Board acknowledges the arguments set forth by the Veteran’s representative in the May 2020 statement, which allege numerous deficiencies in the December 2019 VA examination report. However, the Board finds that the Veteran’s representative mischaracterized the rationale of the VA examiner. The VA examiner did not conclude that there was no current left ankle impairment; rather, the VA examiner found no evidence of a current left ankle impairment related to service or a service-connected left knee condition. Moreover, though the Veteran’s representative is correct that in-service evidence of a disability is not necessary to substantiate a claim for secondary service connection, the Board points out that the Veteran has alleged the existence of a chronic left ankle impairment and limping since 1965. As such, the examiner’s discussion of the Veteran’s service treatment records was necessary to respond to his claims. The Board thus determines that the contentions reflected in the May 2020 statement are completely without merit and finds no evidence of inadequacies in the December 2019 VA examination report. For the reasons set forth above, the Board concludes that the weight of the evidence is against finding that the Veteran’s left ankle impairment is related to service or secondary to his service-connected left knee condition. Although the Board acknowledges the lay statements to the contrary, the majority of the evidence is inconsistent with these assertions. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. at 58. Accordingly, the Veteran’s claim for service connection for a left ankle impairment, claimed as secondary to a service-connected left knee condition, is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals MJS, Attorney for the Board Department of Veterans Affairs 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.