Citation Nr: 21001551 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-42 938 DATE: January 8, 2021 ORDER Service connection for a left ankle disorder, to include as secondary to a right ankle disorder, is denied. Service connection for a left knee disorder, to include as secondary to a right ankle disorder, is denied. REMANDED Entitlement to service connection for bilateral hearing loss. Entitlement to service connection for tinnitus. FINDINGS OF FACT 1. A left knee disability is not present. 2. A chronic left ankle disorder was not present in service or within one year thereafter, and is not otherwise etiologically related to the Veteran’s service or to the service-connected right ankle disability. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310 (2020). 2. The criteria for service connection for left ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1970 to October 1970, from February 1971 to February 1973, and from December 1984 to December 1988. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in February 2020. Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or 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”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran offered testimony before the undersigned at a Board hearing in October 2019. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2020); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the February 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Laws and regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2020). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption 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. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2020); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310 (2020); Allen v. Brown, 7 Vet. App. 439 (1995). Left knee The Board finds that there is no left knee disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Pain alone, however, can serve as a disability for VA compensation purposes if the pain results in functional impairment that affects earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). At the Board hearing, the Veteran reported left knee pain. He noted that his neuropathy may mask much of the pain. He stated that he guards his knees to avoid pain, but that the pain was not an earth-shattering kind of pain. VA medical records do not indicate any left knee diagnoses or left knee complaints of pain that would result in functional impairment. There are complaints of leg swelling, but there is no indication it is related to a left knee disability. In an August 2016 VA examination report, the examiner found that there was no current right knee diagnosis. The Veteran did not have a left knee complaints. There was full left knee extension and flexion, without pain on examination. The examiner found there was no swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting or standing, and more or less movement due to ankylosis, adhesion, flail joints, fracture, and/or nonunions. There was 5/5 muscle strength. In an August 2020 VA examination, the examiner did not find any left knee diagnoses. The Veteran reported intermittent knee pain, right worse than left. The examiner found normal extension and 120 degrees of flexion, although there was flexion to 95 degrees. The examiner found there was no swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting or standing, and more or less movement due to ankylosis, adhesion, flail joints, fracture, and/or nonunions. There was 5/5 muscle strength, normal stability, and no meniscal conditions. The Board finds that the evidence does not support a finding of a current disability. There is no left knee diagnosis. The Veteran does not assert, and the evidence does not show, left knee pain that causes functional impairment of earning capacity. Accordingly, service connection is not warranted. Left ankle At his October 2019 Board hearing, the Veteran indicated that his right ankle was the most bothersome of his ankles. The Veteran underwent a VA examination with a medical opinion in July 2017. The opinion obtained, however, was inadequate. Another VA examination was conducted in August 2020 and an adequate opinion was obtained. The August 2020 VA examiner stated that the Veteran’s left ankle disorder was not likely related to his active service or to the Veteran’s service-connected right ankle disorder. The examiner noted that the Veteran asserted that he had left ankle pain ever since his service discharge. The examiner noted that there had been evidence of bilateral ankle stress fractures in service (September 1983) but that subsequent STRs referred to recurring right ankle symptoms, but not the left. It was noted that the Veteran’s left ankle symptoms had been treated with rest and anti-inflammatory medications and that with such treatment it was reasonable to expect that the Veteran’s left ankle stress fracture would resolve in about two months. The August 2020 VA examiner further stated that factors such as chronic obesity and an occupational risk as an arborist with a tree-cutting business for 20 years were “more likely explanations” for the Veteran’s left ankle issues. Additionally (and noted while discussing whether the Veteran’s right ankle had aggravated the left ankle), evidence of a chronically altered gait which could suggest weight bearing asymmetry was not, according to the August 2020 VA examiner, found in available records. First, the Board finds that there is a current disability. The August 2020 VA left ankle examination revealed a diagnosis of chronic left ankle strain. Second, the Board finds that there was an in-service injury or disease. The Veteran has provided credible testimony that he had bilateral ankle problems during service. Third, however, the Board finds that the evidence of record does not support a finding that left ankle strain is related to service. The Board finds that the August 2020 opinion is of great probative value. The opinion contains a comprehensive review of the Veteran’s medical records and lay statements and offered a well-reasoned explanation for the opinions provided. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting the central issue in determining probative value is whether the examiner was informed of the relevant facts in rendering a medical opinion). Thus, the evidence does not support a finding of service connection for left ankle disability on a direct basis. Likewise, the Board accords significant probative value to the August 2020 VA opinion that the left ankle disability was not caused or aggravated by the service-connected psychiatric disability. As noted above, the examiner reviewed the relevant evidence and provided detailed explanations of the secondary service connection opinions. See Prejean, 13 Vet. App. at 448-9; Nieves-Rodriguez, 22 Vet. App. at 302-04. Accordingly, service connection on a secondary basis is not warranted. The Veteran’s assertion that his left ankle disorder is related to service has been considered. The Board, however, finds that this opinion is not competent. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of orthopedic disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation and thus lay testimony may serve to establish a diagnosis); Layno v. Brown, 6 Vet. App. 465 (1994) (layperson is competent to report only that which the person observed). Accordingly, to the extent these lay statements addressed the nexus element, the Board finds that they are not competent and are also outweighed by the VA examiner’s August 2020 opinion. The Veteran and the authors of the various lay statements submitted in support of the Veteran’s claim are competent to report that he has had symptoms related to his left ankle since service. The Board notes, however, that the August 2020 VA examiner was aware of the Veteran’s assertions of continuity of symptoms for the left ankle after service and did not find them persuasive, noting the lack of reports of left ankle problems in the Veteran’s STRs subsequent to September 1983. In this regard, the Board notes that in October 1985 and August 1987 STRs the Veteran specifically denied that he had any joint or left foot troubles. In view of the evidence to the contrary, the Board does not find that the Veteran’s and the other lay statements are sufficient to establish continuity of symptomatology for the left ankle disorder. As the preponderance of evidence is unfavorable to the claim, service connection is not warranted, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND As for the issues of entitlement to service connection for hearing loss and tinnitus, remand is required to obtain an adequate addendum opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. In the remand, the Board directed the examiner to address the absence of a discharge examination and diminished hearing since service. An August 2020 VA examination was conducted. The examiner provided a negative nexus opinion, reasoning that there was no threshold shift during active duty and that tinnitus began after service. The examiner did not address either of the requested items. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the appellant which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his attorney. 4. After any additional records are associated with the claims file, obtain an addendum opinion to determine the etiology of his hearing loss and tinnitus. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed warranted, one must be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hearing loss and tinnitus had onset in, or are otherwise related to, active military service. The Board notes that VA hearing loss was found in a 2016 VA examination and thus the presence of such is conceded. The examiner must specifically address the Veteran’s assertions of an in-service noise exposure, the absence of a discharge examination, and diminished hearing since service. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2020). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.