Citation Nr: 21003305 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 20-09 950 DATE: January 21, 2021 ORDER Entitlement to service connection for degenerative arthritis of the right ankle is granted. Entitlement to service connection for degenerative arthritis of the left ankle is granted. REMANDED Entitlement to service connection for degenerative arthritis of the spine is remanded. Entitlement to service connection for degenerative arthritis of the left foot is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for an acquired mental health disorder, to include posttraumatic stress disorder (PTSD) and schizoaffective disorder, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A June 2016 rating decision denied service connection for a right ankle disability, a left ankle disability, a back disability, an acquired mental health disability, and sleep apnea. The Veteran’s service treatment records were not available at the time of the June 2016 rating decision. 2. The Veteran’s service treatment records were associated with his claims file on August 6, 2018. 3. The evidence is at least in equipoise as to whether the Veteran’s degenerative arthritis of the right ankle is related to an in-service grade three right ankle sprain. 4. The evidence is at least in equipoise as to whether the Veteran’s degenerative arthritis of the left ankle began during active service. CONCLUSIONS OF LAW 1. As evidence received since the June 2016 rating decision includes service department records, the claims of service connection for a right ankle disability, a left ankle disability, a back disability, an acquired mental health disability, and sleep apnea, must be reconsidered without the need for new and material evidence. 38 C.F.R. § 3.156(c). 2. The criteria for service connection for degenerative arthritis of the right ankle have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for degenerative arthritis of the left ankle have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1983 to October 1986. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in November 2020. A transcript of the hearing is associated with the Veteran’s claims folder. The Board notes that the Veteran has provided a medical opinion on the issue of entitlement to service connection for hypertension. (11/20/2020, Medical Treatment Record, p. 4). During a November 2020 Board hearing the Veteran’s representative argued that hypertension should be sympathetically read into his claim for a heart disability. (11/23/2020, Hearing Transcript, p. 3). However, based on the Veteran’s February 2019 notice of disagreement, the Board finds that the Veteran’s claim was for aggravation of a heart murmur that preexisted service. (2/21/2019, NOD, p. 4). Therefore, the Board will not consider entitlement to service connection for hypertension in the instant decision. 1. Entitlement to service connection for degenerative arthritis of the right ankle. The Veteran contends that degenerative arthritis of the right ankle is related to a grade three ankle sprain that occurred while he was on active duty. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board concludes that the Veteran’s right ankle disability is related to the aforementioned ankle sprain. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A September 2018 VA ankle disabilities examination show the Veteran has a current diagnosis of degenerative arthritis of the right ankle. (9/27/2018, C&P Exam, p. 1). While he was not diagnosed with degenerative arthritis during active duty service, he did suffer a grade three sprain of the right ankle. (8/6/2018, STR, p. 15). Thus, the question becomes whether degenerative arthritis is related to an in-service grade three ankle sprain. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a September 2018 VA medical opinion. The examiner opined that the Veteran’s arthritis of the right ankle is less likely than not related to the March 1984 ankle sprain. In rendering her opinion, the examiner noted that the Veteran suffered a right ankle sprain during service but found no evidence of continued disability following the Veteran’s military service. The examiner further noted that, following his discharge from active duty, the Veteran was employed as a corrections officer and opined that the “physical requirements” of being a corrections officer were the “likely cause” of his arthritis. (9/27/2018, C&P Exam, p. 9). The evidence in favor of the claim includes a November 2020 private medical opinion. The private examiner opined that the Veteran’s arthritis of the right ankle “is at least as likely as not due to his time in service. In doing so, the private examiner noted that the Veteran suffered a grade three ankle sprain during service. The examiner explained that a grade three sprain involves “a full tear or rupture to the ligaments,” and “results in considerable joint instability and loss of function . . ..” (11/20/2020, Medical Treatment Record, p. 3). 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 conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the November 2020 private medical opinion was provided by a medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran’s degenerative arthritis of the right ankle is related to the in-service sprain. Conversely, the September 2018 VA examiner’s conclusion that the Veteran’s post-service employment was the “likely cause” of his arthritis is speculative in nature. In this regard, the record does not support the conclusion that the Veteran injured his right ankle while working as a corrections officer. Further, the examiner did not cite to evidence supporting her conclusion that the “physical requirements” of being a corrections officer caused the Veteran’s degenerative arthritis. Based on the aforementioned, the Board places more probative weight on the November 2020 private medical opinion. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current degenerative arthritis of the right ankle is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for degenerative arthritis of the right ankle is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for degenerative arthritis of the left ankle. The Veteran contends that degenerative arthritis of the left ankle manifested during his active duty service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board concludes that the Veteran has degenerative arthritis of the left ankle that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A September 2018 VA ankle disabilities examination show the Veteran has a current diagnosis of degenerative arthritis of the left ankle. (9/27/2018, C&P Exam, p. 1). The Veteran was seen for complaints of left ankle pain during service and contemporaneous x-ray evidence showed signs of early degenerative changes. (8/6/2018, STR, p. 10). Thus, the question becomes whether degenerative arthritis of the left ankle is related to in-service evidence of early degenerative changes. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a September 2018 VA medical opinion. The examiner opined that the Veteran’s degenerative arthritis is less likely than not related to service. In rendering her opinion, the examiner did not acknowledge the aforementioned in-service x-rays of early degenerative changes, but did note in-service diagnoses of left ankle sprains. The examiner indicated that there was no evidence of continued disability following the Veteran’s military service. The examiner further noted that, following his discharge from active duty, the Veteran was employed as a corrections officer and opined that the “physical requirements” of being a corrections officer were the “likely cause” of his arthritis. (9/27/2018, C&P Exam, p. 9). The evidence in favor of the claim includes a November 2020 private medical opinion. The private examiner opined that the Veteran’s degenerative arthritis “is at least as likely as not due to his time in service.” (11/20/2020, Medical Treatment Record, p. 3). In doing so, the private examiner noted in-service x-ray evidence of early degenerative changes. After a review of the medical opinions associated with the claim file, the Board places more probative weight on the November 2020 private medical opinion. In this regard, the November 2020 private medical opinion was provided by a medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran’s degenerative arthritis manifested in service. Conversely, the September 2018 VA examiner’s conclusion is based on an inaccurate factual premise. On this point, the examiner did not address x-ray evidence of degenerative changes of the left ankle during service. Based on the aforementioned, the Board thus places more probative weight on the November 2020 private medical opinion. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current degenerative arthritis of the left ankle is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for degenerative arthritis of the left ankle is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for degenerative arthritis of the spine is remanded. 2. Entitlement to service connection for degenerative arthritis of the left foot is remanded. 3. Entitlement to service connection for sleep apnea is remanded. 4. Entitlement to service connection for a heart disability is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claims can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In a May 2018 statement, the Veteran indicated that he has been on social security disability since 1999. However, these records are not currently associated with the Veteran’s claims file. As there may be outstanding and relevant Social Security Administration (SSA) records, the Board finds that a remand is required to allow VA to request these records. In rendering this decision, the Board acknowledges that the Veteran has provided private medical opinions regarding his claimed disabilities. However, as the disabilities currently at issue were not noted in-service, unlike his bilateral ankle disabilities discussed in the preceding section, the Board finds that it is necessary to request his SSA records as they may contain evidence of the claimed disabilities etiology. Additionally, regarding the Veteran’s claim for degenerative arthritis of the spine, a VA medical opinion was issued in September 2018. However, the examiner did not address the Veteran’s theory that his back disability is proximately due to his service-connected bilateral ankle disabilities. Therefore, the Board finds that a remand is further warranted for an examination and medical opinion regarding whether the Veteran’s degenerative arthritis of the spine is at least as likely as not proximately due to, or aggravated beyond its natural progression by, his service-connected bilateral ankle disabilities. Likewise, the September 2018 examiner did not address the Veteran’s theory that his degenerative arthritis of the left foot is proximately due to his service-connected bilateral ankle disabilities. Therefore, this claim must be remanded for an examination and medical opinion regarding whether the Veteran’s degenerative arthritis of the left foot is at least as likely as not proximately due to, or aggravated beyond its natural progression by, his service-connected bilateral ankle disabilities. Finally, the September 2018 examiner indicated that the Veteran’s risk factors for developing sleep apnea, include obesity. However, the examiner did not address to what degree the Veteran’s service-connected disabilities caused obesity. In January 2017, VA’s Office of General Counsel (OGC) issued a precedential opinion regarding whether obesity may be considered a “disease” for the purposes of service connection. In general, OGC concluded that obesity is not a disease or injury for purposes of service connection; however, obesity may act as an “intermediate step” between a service-connected disability and a current disability in a secondary service-connection analysis under 38 C.F.R. § 3.310(a). In effect, OGC concluded that if obesity is the result of a service-connected disability and was a substantial factor in the development of the current disability, entitlement to service connection for the current disability may be warranted. See VAOPGCPREC 1-2017. In order to determine if obesity is an “intermediate step,” an adjudicator must resolve the following issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity. If these questions are answered in the affirmative, the claimed disability may be service connected on a secondary basis. Id. In the present case, no such analysis has been conducted. Based on the aforementioned, the Board finds that the Veteran’s claims must be remanded for further development. 5. Entitlement to service connection for an acquired mental health disorder, to include posttraumatic stress disorder (PTSD) and schizoaffective disorder, is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claims can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board cannot make a fully informed decision on the issue of entitlement to service connection for an acquired mental health disorder because no VA examiner has opined whether the Veteran’s acquired mental health disorder is at least as likely as not aggravated beyond its natural progression by his service-connected disabilities. In rendering this opinion, the Board acknowledges that the file contains a September 2018 VA medical opinion wherein a VA examiner found that the Veteran’s mental health disability is less likely than not proximately due to or the result of the Veteran's service-connected disabilities. However, the examiner failed to offer an opinion on whether his mental health disorder was aggravated beyond its natural progression by his service-connected disabilities. (11/27/2018, C&P Exam, p. 2). As previously noted, the Veteran submitted a private medical opinion regarding the claim currently at issue. However, as an acquired mental health disorder was not noted in-service, the Board finds that it is necessary to request the Veteran’s SSA records as they may contain evidence of the etiology of his claimed acquired mental health disorder. Based on the aforementioned, the Board finds that the Veteran’s claims must be remanded for further development. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran raised the issue of entitlement to a TDIU in a May 2018 statement. The AOJ should develop the issue. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from January 2020 to the present. 2. Obtain the Veteran’s federal records from SSA. Document all requests for information as well as all responses in the claims file. 3. Schedule the Veteran for a VA examination for his degenerative arthritis of the spine. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (a.) Is degenerative arthritis of the spine at least as likely as not proximately due to bilateral degenerative arthritis of the ankles? (b.) Is degenerative arthritis of the spine at least as likely as not aggravated, i.e., worsened beyond its natural progression, by bilateral degenerative arthritis of the ankles? If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation. 4. Schedule the Veteran for a VA examination for his degenerative arthritis of the left foot. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (a.) Is degenerative arthritis of the left foot at least as likely as not proximately due to bilateral degenerative arthritis of the ankles? (b.) Is degenerative arthritis of the left foot at least as likely as not aggravated, i.e., worsened beyond its natural progression, by bilateral degenerative arthritis of the ankles? If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation. 5. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is proximately due to service-connected disabilities or was aggravated beyond its natural progression by service-connected disabilities. In rendering an opinion, the examiner must consider whether obesity is an "intermediate step" between sleep apnea and the Veteran’s service-connected disabilities. The examiner must address the following questions: (a.) whether it is at least as likely as not that service-connected disabilities contributed to the Veteran's obesity; (b.) if so, whether it is at least as likely as not that the obesity was a substantial factor in causing sleep apnea; and (c.) whether sleep apnea would not have occurred but for obesity. 6. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s acquired mental health disability is at least as likely as not aggravated beyond its natural progression by service-connected disabilities. 7. Schedule the Veteran for examinations by appropriate clinicians regarding the current severity of his service-connected disabilities. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of service-connected disabilities on employment. The examiner should identify all limitations or functional impairment caused solely by service-connected disabilities. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.