Citation Nr: 20060604 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 14-09 983 DATE: September 15, 2020 ORDER Service connection for a bilateral ankle disorder, currently diagnosed as a bilateral ankle strain, is granted. Service connection for bilateral foot osteoarthritis is granted. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, the probative medical evidence indicates his current bilateral ankle disorder was caused and/or aggravated by his service-connected bilateral knee degenerative joint disease (DJD). 2. Affording the Veteran the benefit of the doubt, the probative medical evidence indicates his current bilateral foot osteoarthritis was incurred in service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a bilateral ankle strain secondary to bilateral knee DJD have been approximated. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.303, 3.304, 3.309, 3.310. 2. The criteria to establish service connection for bilateral foot osteoarthritis have been approximated. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.303, 3.304, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1970 to March 1974. In January 2018, the Board of Veterans’ Appeals (Board) remanded this matter for additional medical examinations addressing the etiology of the Veteran’s bilateral feet and ankle disorders. The examinations were completed and accordingly the remand directives have been substantially complied with. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 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). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Degenerative joint disease (DJD) is a type of arthritis, which is among the “chronic” diseases listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about 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). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Service connection for a bilateral ankle strain, to include as secondary to service-connected bilateral knee DJD VA treatment records indicate the Veteran reported onset of bilateral ankle pain in 2007 and was diagnosed with an ankle strain. He contends this disorder includes a bilateral ankle condition, including but not limited to bilateral ankle osteoarthritis, that is related to service and/or is caused or aggravated by his service-connected bilateral knee degenerative joint disease (DJD). In a March 2018 Statement in Support of Claim (VA Form 21-4138), the Veteran reported onset of foot and ankle pain during active duty. He reported working as a security officer, which entailed marching/patrolling outside in extremely hot and cold temperatures for 8-hour shifts. The Veteran reported that despite wearing several layers of socks, his legs, knees, ankles and feet would remain cold for several hours, even after applying hot towels. He additionally submitted a statement from his wife, who observed and treated his cold exposure-related symptoms, and in-service photographs of the Veteran in snowy terrain. His Report of Separation from the Armed Forces (Form DD 214) reflects a military occupational specialty (MOS) of Security Specialist. Based this evidence, the Veteran’s reports of his duties in service are consistent with the places, types, and circumstances of his military assignment. See 38 U.S.C. § 1154 (a). However, service treatment records (STRs) do not contain references to diagnoses, symptoms or treatment for cold exposure, or any ankle or other lower extremity injury or condition. In the Veteran’s February 1970 enlistment medical examination, his clinical feet and lower extremity evaluations were normal. In a report of medical history completed on the same date, he denied ever having had foot trouble or a bone, joint or other deformity. In his February 1974 separation medical examination, the Veteran’s clinical feet and lower extremities evaluations were normal and he was assigned a “1” for his “physical capacity or stamina” and “lower extremities” in his PUHLES profile. See Odiorne v. Principi, 3 Vet. App. 456 (1992) (observing that the “PULHES” profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). In a June 2011 statement, the Veteran’s wife reported the Veteran experienced pain in his knees, legs, ankles and feet since his separation from service in 1974. She reported he used Tylenol and Advil to manage the pain until it became more severe in approximately 2007. A July 2014 VA treatment record indicates the Veteran requested injections for his chronic knee and ankle pain. He reported intermittent swelling in his left ankle and wearing an ankle brace to alleviate symptoms. He denied specific trauma, falls, redness or any other symptoms. In a March 2017 podiatry note, the Veteran reported ankle pain in the past month. The Veteran was afforded a VA-contracted medical examination in August 2017. The Veteran reported onset of bilateral ankle pain in 2007 when his knees began hurting and he began having difficulty walking. On physical examination, the Veteran’s knees did not demonstrate abnormal range of motion (ROM) but he reported pain during the examination. The examiner indicated that imaging studies of the ankle were performed but were not indicative of degenerative or traumatic arthritis, or any bone, joint, soft tissue or other abnormalities. In addition to the above evidence, the examiner indicated she reviewed the Veteran’s electronic case file, including VA treatment records, lay statements and STRs. Based on the evidence reviewed and the in-personal examination, she diagnosed the Veteran with a bilateral ankle strain. In the opinion portion the August 2017 examination report, the examiner noted there were no ankle conditions documented in the Veteran’s STRs, there was no medical data to support that hot and/or cold weather causes ankle conditions, and there was no medical data suggesting DJD of the knees causes ankle pain. She further noted that the August 2017 X-rays of the Veteran’s ankles did not reveal any abnormalities. Based on those premises, the examiner opined the Veteran’s bilateral ankle condition was less likely than not related to service. She further opined his ankle condition was less likely than not caused or aggravated by his service-connected bilateral knee DJD. In a letter dated September 2017, a VA podiatrist (Dr. A.L.) who treated the Veteran indicated it is as least as likely as not that his service-connected bilateral knee arthritis affects his ankle and foot. She listed the Veteran’s diagnoses of acquired bilateral flat feet, degenerative arthritis of the ankle and 1st MTP joint, bunion deformity, muscle tendon imbalance, and spurs to his posterior and plantar calcaneus. She noted the Veteran’s tendonitis and traumatic arthritis of the knees are service-connected disorders and explained that any part of the lower extremity chain will affect the next distal and/or proximal joint, altering gait. In June 2019, the Veteran was afforded an additional VA-contracted examination pursuant to the January 2018 Board remand. The examiner noted the previous diagnosis of a bilateral ankle strain and also noted the Veteran’s diagnosis of diabetes mellitus type II (DBM) with diabetic neuropathy. The Veteran continued to report onset of bilateral ankle pain due to walking in extreme cold weather in service. The examiner indicated that additional X-rays were taken in June 2019 which revealed bilateral heel spurs but no radiographic evidence of arthritis. In a medical opinion issued in September 2019, the June 2019 examiner opined the Veteran’s bilateral ankle strain is less likely than not related to service and is less likely than not caused or aggravated by his service-connected bilateral knee arthritis. The examiner noted that cold exposure could result in osteoarthritis and that the Veteran reported cold exposure in service. However, she indicated the recent June 2019 X-rays did not show ankle arthritis. Based on these findings, she concluded the Veteran’s bilateral ankle strain was not due to cold exposure. The examiner further explained that bone spurs are caused by local inflammation which stimulates cells to form bone deposits, eventually leading to a bony prominence or spur. She concluded there was no evidence that the Veteran’s bilateral heel spurs were caused in service. Finally, the examiner concluded there was no evidence indicating the Veteran’s ankle strain was caused by his service-connected bilateral knee DJD. The medical evidence is in relative equipoise with respect to the diagnosis and cause of the Veteran’s current bilateral ankle disorder. While August 2017 and June 2019 X-rays were negative for arthritis of the ankles, a VA podiatrist opined that the Veteran has osteoarthritis of the ankles and feet. Both A.L. and the June 2019 VA examiner essentially agreed that cold exposure can cause osteoarthritis, but the latter opined the Veteran does not have bilateral ankle osteoarthritis based on X-rays. With respect to secondary service connection, the VA podiatrist opined that the Veteran’s bilateral knee DJD is likely to have a negative impact on his lower extremities. She explained that arthritis in one lower extremity can affect the entire lower extremity “chain,” resulting in an altered gait. The June 2019 VA examiner concluded there was no evidence that the Veteran’s knee DJD caused his ankle strain, but did not explain why, nor did she comment on A.L.’s conflicting opinion. For these reasons, the September 2019 VA opinion’s probative value is diminished. Affording the Veteran the benefit of the doubt, the claim for service connection for a bilateral ankle strain is granted on a secondary basis. 2. Service connection for a bilateral foot disorder, currently diagnosed as bilateral foot osteoarthritis The Veteran has been diagnosed with osteoarthritis of the first metatarsophalangeal (MTP) joints in both feet. He has also been diagnosed with bilateral pes planus (flat feet). He contends his bilateral foot osteoarthritis began in service and/or are caused or aggravated by his service-connected bilateral knee disorder. As indicated above, the Veteran’s STRs do not contain references to diagnoses, symptoms or treatment for cold exposure, or any foot or other lower extremity injury or condition. However, the Veteran has consistently reported onset of foot pain in service, with an uptick in foot pain secondary to knee pain from 2007 to the present. In the September 2019 VA opinion, the VA examiner noted that March 2018 X-rays indicated osteoarthritis in the first MTP joints of the Veteran’s feet. She noted mild degenerative changes in both feet, with the left more pronounced than the right. The examiner explained that frostbite is a thermal injury resulting in localized tissue damage due to inadequate circulation when the ambient temperature is below freezing. She further explained that osteoarthritis can develop after cold injuries. The examiner concluded that, in addition to age and wear and tear, the Veteran’s significant history of cold exposure during service is a contributing factor to his bilateral foot osteoarthritis. Based on these findings, she opined the Veteran’s bilateral foot osteoarthritis is more likely than not directly related to service. While not documented in the STRs, the Veteran has credibly and consistently reported routine cold exposure during service that caused foot pain. The probative medical evidence indicates his current bilateral osteoarthritis of the feet is more likely than not related to cold exposure in service. Affording the Veteran the benefit of the doubt, the claim for service connection is granted. The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms “compensation,” “rating,” and “service connection” as although related, each having a distinct meaning as specified by Congress). Further, in setting the appropriate disability ratings, the RO will determine whether the prohibitions as to “pyramiding” are applicable. See 38 C.F.R. § 4.14 (the evaluation of the “ same disability “ or the “ same manifestation “ under various diagnoses is to be avoided) and Esteban v. Brown, 6 Vet. App. 259 (1994) (while pyramiding of disabilities is to be avoided pursuant to 38 U.S.C. § 1155 and 38 C.F.R. § 4.14, it is possible for a veteran to have separate and distinct manifestations from the same injury permitting two different disability ratings). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen 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.