Citation Nr: 21004248 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-04 772 DATE: January 26, 2021 ORDER Service connection for a right ankle disability, diagnosed as recurrent sprains and calcification or ossification adjacent to the medial malleolus, as secondary to service-connected bilateral pes planus disability, is granted. Service connection for a right knee disability, diagnosed as degenerative arthritis, as secondary to service-connected bilateral pes planus disability, is granted. Service connection for a left knee disability, diagnosed as degenerative arthritis, as secondary to service-connected bilateral pes planus disability, is granted. FINDINGS OF FACT 1. A right ankle disability, consisting of recurrent sprains and calcification or ossification adjacent to the medial malleolus, is at least as likely as not etiologically related to the Veteran’s service-connected bilateral pes planus disability. 2. Right knee degenerative arthritis is at least as likely as not etiologically related to the Veteran’s service-connected bilateral pes planus disability. 3. Left knee degenerative arthritis is at least as likely as not etiologically related to the Veteran’s service-connected bilateral pes planus disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle recurrent sprains and calcification or ossification adjacent to the medial malleolus, as secondary to the service-connected bilateral pes planus, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.110. 2. The criteria for service connection for a right knee degenerative arthritis, as secondary to the service-connected bilateral pes planus, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.110. 3. The criteria for service connection for a left knee degenerative arthritis, as secondary to the service-connected bilateral pes planus, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.110. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1975 to June 1979. This appeal before the Board of Veterans’ Appeals (Board) arose from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims on appeal for the issuance of a statement of the case in June 2015, and subsequently remanded the claims for further evidentiary development in July 2019. In January 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is of record. As noted in the July 2019 remand, the Veteran has an additional appeal pending for the issues of entitlement to service connection for a left ankle disability and entitlement to a higher disability rating for bilateral pes planus with plantar fasciitis and calcaneal spur. While the Veteran additionally provided testimony as to the service connection claim for a left ankle disability at her January 2019 Board hearing before the undersigned VLJ, she had previously testified as to both the service connection claim for the left ankle and the higher rating claim for the bilateral pes planus at a hearing before a different VLJ held in August 2014. As the Board noted, the Veteran will have the option to testify as to that issue before a third VLJ, in accordance with 38 U.S.C. § 7102(a). See Arneson v. Shinseki, 24 Vet. App. 379 (2011). Accordingly, those issues will be the subject of one or more separate Board decisions. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The determination as to whether each element of a claim is met is based on an analysis of all pertinent evidence of record and evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006) Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection also may be established on a secondary basis for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439 (1995). Right ankle and bilateral knee disabilities The Board notes that, although these service connection claims were adjudicated on a direct basis, the Veteran has specifically contended that her service-connected foot disabilities caused her to have an altered gait, which in turn caused or aggravated her bilateral knee and right ankle disabilities. Further, as explained below, service connection for each of these disabilities may be awarded as secondary to the Veteran’s service-connected pes planus disability on a causation basis. As such, the Veteran is not prejudiced by the Board limiting its analysis with respect to these claims to secondary service connection. First addressing the matter of current disability, with respect to the right ankle disability, a March 2015 private X-ray report reflects an impression of calcification or ossification adjacent to the medial malleolus, which could be related to old trauma. A January 2016 ankle disability benefits questionnaire (DBQ) indicates that the Veteran had suffered an ankle sprain which was resolving and that she had suffered from intermittent swelling of the ankle. In a March 2019 ankle DBQ, a private clinician noted that the Veteran had a diagnosis of capsulitis of the bilateral ankles. Further, in a December 2019 VA examination report, while the examiner noted that the Veteran did not have a current ankle disability, she noted that the Veteran suffered from recurrent ankle sprains. Notably, while the December 2019 VA examination report indicates that the Veteran does not have a current right ankle disability, the examiner did not clearly address whether the Veteran has had a right ankle disability during the pendency of her appeal, to include recurrent ankle sprains. Further, the examiner did not address the prior X-ray evidence of calcification or ossification adjacent to the medial malleolus, nor did she address the prior diagnosis of capsulitis. Regardless, the Board finds that there is sufficient evidence to establish that the Veteran has had a right ankle disability during the pendency of her claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) and McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (collectively holding that the current disability requirement for service connection may be met by evidence of the claimed disability shortly prior to the filing or at the time of filing of the claim, or during the pendency of the claim). With respect to the right and left knee disabilities, private X-ray reports notes impressions of osteoarthritis of each knee in October 2011 and December 2012, respectively. A December 2019 VA knee and lower leg DBQ confirms the bilateral knee degenerative arthritis diagnoses. Based on the foregoing, the determinative question before the Board is whether there is a nexus between the Veteran’s current right ankle, and right and left knee disabilities—and the service-connected pes planus disability. On the question of medical etiology of the Veteran’s diagnosed right ankle conditions, in a March 2018 treatment report, the Veteran’s private podiatric physician noted her history of treatment for ongoing right foot and ankle pain, and provided the assessment that her ankle pain was secondary to impingement of the ankles due to her pes planus foot type. In a February 2019 letter, the private podiatric physician described the Veteran’s calcification or ossification adjacent to the medial malleolus, consistent with previous traumas, and noted that due to her service-connected foot disability, over time, she was more susceptible to ankle pain with increased risk of overuse of tendons and ligaments. Thus, the physician opined that it was at least as likely as not that the Veteran’ s ankle symptoms were associated with her service. Given the physician’s description of the Veteran’s service-connected foot disability causing increased ankle symptoms over time, resolving reasonable doubt in the Veteran’s favor, the Board reads the physician’s opinion as etiologically relating the Veteran’s right ankle disability to her active service by way of her service-connected foot disability. Similarly, with respect to the Veteran’s knees, in the February 2019 letter, the private podiatric physician noted that the position of the Veteran’s bilateral feet, in forefoot abduction and everted calcaneal stance position, at approximately 20 degrees, put increased stress and strain on the medical aspects of her knees. The physician noted that the Veteran’s current foot type can be associated with increased stress and strain to the medial aspect of the bilateral knees with excessive running or marching with weight. The physician also noted that over time, the Veteran was more susceptible to medial impingement of the knees, with increased risk of overuse of tendons and ligaments. Thus, the physician opined that the current knee pain was at least as likely as not associated with her service. Again, given the physician’s description of the Veteran’s service-connected foot disability causing increased knee symptoms over time, resolving reasonable doubt in the Veteran’s favor, the Board reads the opinion as etiologically relating the Veteran’s knee disabilities to her active service by way of service-connected foot disability. The Board finds the foregoing private opinions to be of significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The podiatric physician demonstrated significant familiarity with the Veteran’s medical history, including her treatment history for service-connected bilateral foot disability, and the reported symptoms accompanying her ankle and knee disabilities, and noted the relationship between the foot disabilities and the claimed ankle and knee disabilities. The physician fully considered the evidence together with her expertise and medical research. Such opinions, therefore, constitute competent, probative evidence tending to support awards of secondary service connection for the diagnosed right ankle, and right and left knee disabilities, on a causation basis. 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. 439. To the extent that the private opinions may be lacking in rationale, the Board points out that a clinician is required to consider all the relevant evidence before forming an opinion and support his or her opinion with an analysis that the Board can consider and weigh against contrary opinions. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate). In this case, contrary opinions have been provided with respect to the etiology of the right ankle disability. However, these opinions were all primarily based on an apparent lack of current disability. Additionally, contrary opinions provided with respect to the etiology of the knee disabilities, in June 2013 and April 2016 VA examination reports, improperly relied on an apparent absence of treatment for the Veteran’s service-connected foot disabilities for a significant period of time, and, without rationale, summarily concluded that plantar fasciitis or bunions would not cause or aggravate knee osteoarthritis. The opinion did not address assertions or evidence of knee disabilities developing as a result of altered gait or overuse, with altered foot positioning. Additionally, a December 2019 opinion obtained as to the etiology of the knee disabilities is deficient where it is speculative in nature. See Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) (holding that a speculative medical opinion provides neither positive nor negative support for the Veteran’s claim). Moreover, it is clear in this scenario that the Veteran’s private podiatric physician considered the relevant evidence at her disposal, including treatment rendered to the Veteran, both during and since her separation from service, before providing the favorable opinions. The Board finds no reason to discount the medical opinions based on the physician’s expertise and qualifications. Thus, reading the private physician’s opinions as a whole, and in the context of the evidence of record, the Board finds that the opinions are of sufficient probative weight to warrant a finding that the Veteran’s current right ankle and right and left knee disabilities are at least as likely as not etiologically related to her service-connected pes planus disability. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Accordingly, in view of the totality of the evidence, with resolution of reasonable doubt on this appeal in the Veteran’s favor, the Board concludes that the criteria for service connection for a right ankle disability, and for right and left knee disabilities—all as secondary to the service-connected bilateral pes planus, are met. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.