Citation Nr: 20053076 Decision Date: 08/11/20 Archive Date: 08/11/20 DOCKET NO. 15-09 662 DATE: August 11, 2020 ORDER Entitlement to service connection for a left ankle condition, to include as secondary to service-connected left foot plantar fasciitis, status post fracture (hereafter referred to as a “left foot condition”), is denied. Entitlement to service connection for a right ankle condition, to include as secondary to service-connected right foot plantar fasciitis, status post fracture (hereafter referred to as a “right foot condition”), is denied. REMAND Entitlement to service connection for a left hip condition, to include as secondary to service-connected lumbar strain with spondylosis and scoliosis (hereafter referred to as a “low back disability”), is remanded. Entitlement to service connection for residuals of a total right hip replacement, to include as secondary to service-connected low back disability, is remanded. FINDINGS OF FACT 1. The Veteran’s left ankle condition is not secondary to service-connected left foot condition and is not otherwise related to an in-service injury or disease. 2. The Veteran’s right ankle condition is not secondary to service-connected right foot condition and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ankle condition, to include as secondary to service-connected left foot condition, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a)–(b), 3.307(a)(3), 3.309(a), 3.310. 2. The criteria for entitlement to service connection for a right ankle condition, to include as secondary to service-connected right foot condition, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a)–(b), 3.307(a)(3), 3.309(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to May 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. A Board hearing was conducted at the RO in Denver, Colorado. A transcript of this hearing is contained within the electronic claims file. See August 19, 2016, Hearing Transcript (Tr.). In July 2018, the Board denied the claims herein. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and he, together with the Office of the General Counsel for VA, resolved that appeal by way of an April 2019 Joint Motion for Remand (JMR). Upon return to the Board, and in compliance with the JMR, it remanded the claims to the agency of original jurisdiction (AOJ) to schedule the Veteran for examinations for his bilateral hips and ankles. The examiner was to provide etiological opinions on both a direct and secondary basis for the Veteran’s conditions. See August 27, 2019, Board Decision. Over the course of September–December of 2019, these examinations and opinions were provided and obtained (discussed in depth below). To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). For certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a degree of ten percent within one year following discharge from service. When a chronic disease is not shown to have manifested to a compensable degree within one year after service, there is required, under 38 C.F.R. § 3.303(b), 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). Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b), 3.307(a)(3), 3.309(a). To establish secondary service connection, a veteran must provide evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond natural progression by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 446 (1995); 38 C.F.R. § 3.310. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. With respect to his bilateral ankles, the Veteran stated the following: Due to the breakage of the foot, I have broken my right [and left] ankle[s] several times. My ankles are very large and swell periodically [without] cause. I am very unstable on my feet and walking is difficult without support. This causes me great pain. I fall regularly, if I mis-step [sic] on anything but flat ground. November 21, 2012, Correspondence; See also Tr. at 5. Service treatment records (STRs) do not contain complaints of, treatment for, or diagnosis of any bilateral ankle condition. In her November 2012 statement, the Veteran’s spouse—T.VC.—echoed the Veteran’s remarks, indicating that she “cannot recall how many times he has turned, [and] sprained or broken his ankles.” A September 2019 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The examiner indicated that the Veteran has degenerative arthritis of the bilateral ankles. An October 2019 opinion indicates that the Veteran’s ankle conditions are not directly related to service, providing the following opinion: The Veteran’s records do not reflect complaint or treatment specific to the right ankle during the service years 1984-1989 or within a year of discharge. He was noted to have mild right ankle DJD on x-rays today, as well as right lateral ankle instability on exam. The record reflects subjective report of repeated bilateral ankle injuries starting approximately 15 years prior to his left ankle visits in 2016, but there is no indication that the mild right ankle DJD and instability started in service or within a year of discharge. A nexus has not been established. In December 2019, a secondary opinion was obtained to determine whether the Veteran’s ankle conditions were related to his service-connected foot conditions. The examiner provided the following rationale: All available medical records, to include remand documents, were reviewed. The [V]eteran is SC left foot plantar fasciitis, s/p fracture. Veteran’s ankle diagnosis is degenerative arthritis, bilateral ankles. There is no credible medical evidence to support the notion that plantar [fasciitis], s/p fracture, or any other lower extremity injury/condition can cause/result in degenerative arthritis of the ankle. Additionally, there is no credible evidence to suggest that an injury or disease of one lower extremity (veteran’s SC feet) would have any significant impact on another lower extremity (veteran’s ankles), unless the foot condition . . . resulted in 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 four or five centimeters so that the individual’s gait pattern has been altered to the extent that clinically there is an obvious lurching type gait (a significant limp). The [V]eteran’s SC foot condition, plantar fasciitis s/p fracture left foot, is not of the severity to result in a left ankle condition. A secondary service connection is not established. The examiner included citations to medical literature and provided the same opinion for the right ankle. Th Board acknowledges that the Veteran currently suffers from degenerative conditions of the bilateral ankles. Thus, the first element for service connection, on both a direct and secondary basis, have been established. See Romanowsky, 26 Vet. App. at 293; Allen, 7 Vet. App. at 446; 38 C.F.R. §§ 3.303(a), 3.310. These diagnoses, however, were not rendered within one year from the date the Veteran separated from service. Thus, the application of presumptive service connection for a chronic condition is not appropriate. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). There likewise is no evidence to support that the Veteran was experiencing a continuity of symptomatology of arthritis in the bilateral ankles from service to the present. Thus, service connection on that basis also is not appropriate. See 38 C.F.R. § 3.303(b). The Board notes that there is no in-service event injury, or disease with respect to the bilateral ankles. Therefore, the second element of direct service connection has not been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Even if there were some in-service event or injury noted, the October 2019 VA examiner noted that bilateral ankle injuries did not emerge until, at earliest 2001—roughly twelve years after service. Due to this gap in time, a nexus could not be established between service and the bilateral ankle conditions. Thus, the claim likewise would be denied for failure to satisfy the third element of direct service connection. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). The only possible avenue left for service connection, therefore, is that on a secondary basis. The Board acknowledges that the Veteran currently is service connected for bilateral foot conditions. Thus, the second element of secondary service connection has been established. See Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. With respect to the third element of secondary service connection, however, the evidence of record is insufficient. The December 2019 VA opinion stated that there is no credible medical evidence to support that an injury of the lower extremity could cause degenerative arthritis of the bilateral ankles. This could occur, however, if the Veteran had some type of nerve damage causing partial or complete paralysis of the damaged leg resulting in a discrepancy in leg lengthen. The record does not reflect that the Veteran has any such type of condition. The Veteran and T.VC. believe that the Veteran’s service-connected foot conditions have caused him to trip and continually break his ankles. While both may be competent to report that the Veteran has tripped or fallen, neither are competent to render the complex medical opinion that the Veteran’s degenerative arthritis of the bilateral ankles are due to his service-connected foot conditions. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Thus, because the December 2019 VA opinion is the only competent and credible medical opinion of record, uncontradicted by the other competent and credible evidence of record, the Board affords it considerable probative value on appeal. Thus, the Board finds that the third element of secondary service connection has not been established. See Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. Because the evidence of record does not support the Veteran’s claim for entitlement to service connection for a bilateral ankle condition, to include as secondary to service-connected bilateral foot conditions, the Veteran’s appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). REASONS FOR REMAND When there exists a remand, from either the United States Court of Appeals for Veterans Claims (Court) or the Board, a veteran is entitled to substantial compliance with those remand directives. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). If VA provides a veteran with an examination, then it must provide an adequate examination and opinion. A medical opinion is adequate when it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, when a nexus between a current disability and an in-service event is indicated, there must be a medical opinion that provides some non-speculative determination as to the degree of likelihood that a disability was caused by an in-service disease or incident to constitute sufficient medical evidence on which the Board can render a decision with regard to nexus. Jones v. Shinseki, 23 Vet. App. 382, 387 (2010). To qualify as adequate, a medical examination and opinion provided for the purposes of assessing secondary service connection must address both whether the claimed disability was proximately caused by some service-connected disability and whether the claimed disability was aggravated (chronically worsened) by some service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136, 139–41 (2012). Regarding whether the Veteran’s bilateral hips were related to his service-connected low back condition, an October 2019 VA examiner gave the following opinion: Regarding secondary connection of the right hip DJD S/P RTHA to the SC back condition, the two conditions are unrelated. Arthritis in one joint (lumbar spondylosis in this case) does not cause arthritis in another. It is commonly argued that gait alterations cause unrelated joints to develop DJD due to compensation of weight-bearing, but that argument is based on anecdotal evidence only. A nexus has not been established. The Board finds that the opinion for secondary service connection is not adequate and that VA substantially has not complied with the Board’s prior remand directives. The October 2019 secondary opinion is conclusory in nature, merely stating that arthritis in one joint does not cause another. The examiner also references “anecdotal evidence” that the opposite conclusion is true but neither discusses this anecdotal evidence nor cites to any medical literature to support his own conclusion. Without any supporting rationale or evidence, the Board cannot accept the October 2019 as adequate and remand is required to secure another addendum opinion. The matter is REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Obtain an addendum to the October 2019 VA opinion. The opinion shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s service-connected low back disability proximately caused or aggravated beyond natural progression his bilateral hip conditions, to include as a result of altered gait from his low back condition? Note: The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner’s opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Conduct any other development deemed necessary and then readjudicate the Veteran’s claims. If any of the claims cannot be granted in full, then issue to the Veteran a supplemental statement of the case. After allowing an appropriate amount of time for response from the Veteran, return the claim(s) to the Board. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or the Court must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, Associate 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.