Citation Nr: 21004788 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 11-18 591A DATE: January 28, 2021 ORDER Entitlement to service connection for a left ankle disability, to include as secondary to service-connected disabilities, is denied. REMANDED Entitlement to service connection for a left hip disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to a rating in excess of 20 percent for a neck disability is remanded. Entitlement to an increased rating for a back disability, rated as 10 percent disabling prior to May 4, 2016, and as 20 percent disabling on and after that date, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a left ankle disability began during active service or is otherwise related to an in-service injury, disease, or service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a left ankle disability, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 101(24), 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1988 to December 1992 in the Navy, and thereafter he was in the Navy Reserves until 2001. This matter comes before the Board on appeal from a December 2008 rating decision. In August 2015, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. 1. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected disabilities, is denied. Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 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, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, or results from, a service-connected disease or injury shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection on the basis of aggravation is permitted. 38 C.F.R. § 3.310(b). Compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability and not due to the natural progress of the nonservice-connected disease. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran has claimed entitlement to service connection for a left ankle disability. He contends that this disability is directly related to service or that it was either caused or aggravated by his service-connected foot disabilities (bilateral pes planus and residuals of bunionectomies of the left and right great toes). The Veteran’s main theory of entitlement is that his left ankle disability was either caused or aggravated by the problems that he was having with his feet. (See Board hearing transcript, page 18.) He testified at his Board hearing that the bone spurs and fallen arches in his feet have affected the way he walks and “definitely affected my ankles in addition to the knees.” (See Board hearing transcript, page 20.) The Veteran’s service treatment records reflect that he injured his upper back and his neck when he fell down a ladder in July 1997, and there is a notation in a July 1997 service treatment record to “R/O [rule out] L ankle sprain which pt states resolved.” The Veteran did not seek any follow-up treatment for his left ankle, and there were no subsequent complaints of left ankle pain. With respect to post-service medical evidence, a September 2007 VA medical record notes that the Veteran reported having left foot and ankle swelling and pain. It also notes that the Veteran has not had any gout attacks in the past. Private clinical records show that the Veteran fractured his right ankle in a dirt bike accident in November 2007, for which he had open reduction and internal fixation (ORIF). Private clinical records show that he had also incurred a severe left ankle sprain in the November 2007 accident. A November 2007 VA medical record lists a diagnosis of gout in the left ankle. It notes that the Veteran had suffered a spiral fracture of the right ankle the prior week and that his left ankle hurt about as badly. However, he was told that the left ankle x-ray was negative. It was noted that he was “in CAM boot left ankle.” A March 2008 VA examination report notes the Veteran reported that he had had increasing pain in both ankles over the last two years. On examination, physical and x-ray findings revealed a normal left ankle. No left ankle disability was diagnosed. A July 2008 VA orthopedic surgery pre-operative record notes an assessment of “s/p left ankle ORIF with symptomatic hardware.” This assessment appears to be a mistake, however, because the rest of the record reflects that the Veteran is seeking a pre-operative consultation for his right ankle. It notes that the Veteran is “s/p ORIF right ankle now with pain at fibula plate,” and it lists a right ankle ORIF, but no left ankle surgery, in his surgical history. At no point has the Veteran had a left ankle ORIF. A December 2008 VA medical record shows that X-rays revealed a normal left ankle but post-traumatic changes of the right ankle. The relevant diagnosis was normal left ankle. A July 2009 letter from a private physician who had been treating the Veteran for ankle pain (among other complaints) notes that “It is very likely that these conditions may be a result from pre-existing and already confirmed conditions.” An August 2010 VA medical record shows that the Veteran was having more problems from the November 2007 left ankle sprain than the fracture of the right ankle, and this was complicated by his chronic gout. The assessment was bilateral ankle arthralgia secondary to old injuries. A June 2014 VA medical record describes x-ray findings and notes a diagnosis of “gouty arthritis left ankle.” In particular, it notes “No acute radiographic abnormality of the left ankle.” It also notes a finding that “probably represents remote history of avulsion injury.” A February 2015 VA medical record notes an impression from left ankle films of “No acute osseous injury is present within the left ankle. There is soft tissue swelling along the medial aspect of the left ankle.” An impression of “acute gouty arthritis to left ankle.” A February 2015 VA medical record notes a discharge diagnosis of “Left ankle pain/gout.” A March 2015 VA medical record notes an assessment of “Chronic gout, currently asymptomatic.” An April 2015 VA rheumatology consultation record indicates that the Veteran had had gout for 10 years. In the beginning, it affected the great toes and then moved to other joints in his feet and then to his ankles. A July 2015 VA medical record indicated that his flare-ups of gout mainly affected his left ankle and left great toe. He had gone to the emergency department twice and required crutches to walk. The Veteran testified at his August 2015 Board hearing that x-rays of his knees had disclosed that he had “jumper’s” knees. This was usually associated with paratroopers, but the Veteran believed that, in his case, it was due to coming down ship ladders onto and running while carrying gear on the steel decks of ships. He also believed that he had injured both ankles during active duty as well as in the Naval Reserve in the same manner that he injured his knees. (See Board hearing transcript, page 18.) An August 2015 VA medical record notes that the Veteran sought treatment for left ankle problems. It notes that he “Has [degenerative joint disease] left ankle, BUT appears to have gout flare now.” He noted that he has left ankle gout and had received a cortisone injection from his rheumatologist. This injection had helped, but his ankle had started hurting again. The left ankle was hot/ swollen and very painful to touch. The Veteran underwent x-ray that day, and his “xray left ankle show[s] swelling and [degenerative joint disease] arthritis.” A record from later that day lists a discharge diagnosis of “Ankle Sprain.” The Veteran underwent a VA examination in May 2016. Based on review of the record and interview, examination, and diagnostic testing of the Veteran, the examiner determined that no left ankle diagnosis was warranted. The examination report specifically notes that imaging studies were conducted and that degenerative or traumatic arthritis was not documented. The examiner did not check the box indicating that a diagnosis of degenerative arthritis was warranted, nor did the examiner check the box indicating that a gout diagnosis was warranted. The examiner noted that imaging studies were performed. Degenerative arthritis was not documented and there were no other significant diagnostic test findings or results. Because there was no left ankle disability diagnosis, the VA examiner did not provide an etiology opinion. More generally, the May 2016 VA examiner found that the Veteran’s gout has developed independent of any service-related activities, he neither provided a basis for this opinion nor opined as to whether the Veteran’s gout has been aggravated by his service-connected disabilities. The Board cited these deficiencies in its June 2018 remand of this claim. The June 2018 Board remand also notes that an August 2015 VA medical record notes that the Veteran has degenerative joint disease of the left ankle, but now appears to have a flare-up of gout. A left ankle gout diagnosis appears elsewhere in the record, but a left ankle degenerative joint disease diagnosis does not. In its June 2018 remand, the Board directed that the VA examiner should clarify whether the Veteran has arthritis, whether he has gout, or whether he has both. It directed that a rationale for this diagnosis must be given. An August 2016 VA medical record notes that the Veteran “relates a history of gout for about 10+ years; it has involved … his ankles….” A February 2017 VA medical record notes an assessment of “Complicated foot and ankle pain.” A VA medical record dated in October 2018 notes left ankle and foot pain. The assessment, in relevant part, notes “Chronic gout.” The Veteran underwent a VA examination in October 2019. Based on review of the record and interview, examination, and diagnostic testing of the Veteran, the examiner determined that a diagnosis of left ankle gout was warranted. The examiner listed a diagnosis date of 2004, noting that the “Veteran reports developing gout in left ankle in 2004 with episodes twice a month lasting 2 to 3 days with 9-10/10 pain.” The examiner opined that: The veteran’s left ankle gout is less likely than not aggravated beyond its natural progression by hallux valgus, flat foot or right knee condition due to gout being a metabolic condition involving joints caused by build up of uric acid in joints, sometimes causing crystals to for[m] resulting in an inflammatory reaction in that joint independent of any physical stressors due to elevated uric acid levels caused by eating too much red meat, seafood, consuming too much alcohol or taking diuretic medications. Hallux valgus, flat foot and right knee condition are due to physical stress on those joints independent of any metabolic condition such as gout. Therefore, joint conditions such as hallux valgus, flat foot and right knee condition cannot cause gout to form or flare up. The examiner also addressed the question of conflicting medical evidence, noting that September 2019 x-rays show no evidence of arthritis. The examiner further noted that the Veteran has an established gout diagnosis that has been treated with medications that are commonly used to treat gout attacks. The examiner concluded that the Veteran only has gout in his left ankle, not arthritis. The Board finds the October 2019 opinion to be highly probative, as it was authored by a physician who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the claims file and interview and examination of the Veteran. Its rationale cites to the facts of the Veteran’s case and pertinent medical principles. It cites diagnostic testing and medical treatment to reconcile conflicting indications of a left ankle diagnosis. The Board notes that, while the examiner did not expressly state that the Veteran’s gout was not caused by his service-connected knee and foot disabilities, its rationale (that gout is “a metabolic condition involving joints caused by build up of uric acid in joints, sometimes causing crystals to for[m] resulting in an inflammatory reaction in that joint independent of any physical stressors due to elevated uric acid levels caused by eating too much red meat, seafood, consuming too much alcohol or taking diuretic medications”) applies equally to the question of whether the Veteran’s left ankle gout was caused by his service-connected disabilities. The Board thus finds that this rationale probatively supports the conclusion of the May 2016 VA examiner that the Veteran’s gout has developed independent of any service-related activities. Therefore, the Board finds that this opinion is highly probative in this case. As noted above, a July 2009 letter from a private physician who had been treating the Veteran for ankle pain (among other complaints) notes that “It is very likely that these conditions may be a result from pre-existing and already confirmed conditions.” [Emphasis added.] The Board notes that the author of this letter is a physician who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). The Board finds, however, that this opinion is not probative to the question at hand. The Board notes that the use of the word “may” renders this statement too speculative to substantiate the claim. See Bostain v. West, 11 Vet. App. 124, 127- 28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of may also implies may or may not and is too speculative to establish medical nexus). In addition, the Board notes that the physician did not identify whether the “pre-existing and already confirmed conditions” include any service-connected disabilities. In light of the above, the Board finds that this opinion is not probative to the question at hand. The only remaining contrary opinion comes from the Veteran himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. In short, the Board finds that entitlement to service connection for a left ankle disability as secondary to service-connected foot disabilities, either by causation or aggravation, is not warranted. The Board has considered whether service connection on a direct basis is warranted. The Board notes that the service treatment records contain a single indication of left ankle sprain that had resolved. The October 2019 VA examiner provided a rationale for the May 2016 VA examiner’s opinion that the Veteran’s gout is not related to service. The Veteran has not provided a competent contradictory medical opinion. Therefore, the Board finds that entitlement to service connection for a left ankle disability is not warranted. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disability, to include as secondary to service-connected disabilities, is remanded. 2. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disabilities, is remanded. 3. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected disabilities, is remanded. As noted in the June 2018 Board remand, the Veteran underwent examination for these claims and etiology opinions were obtained in May 2016. While the VA examiner did answer the questions with respect to the etiology of the disabilities at issue, his rationales were conclusory and did not cite to the relevant facts or describe the medical principles that led to his conclusions. These claims were therefore remanded to obtain an etiology opinion. Unfortunately, the resulting October 2019 VA examination report does not provide a secondary service connection opinion. As noted above, the Veteran testified at his Board hearing that the bone spurs and fallen arches in his feet have affected the way he walks and “definitely affected my ankles in addition to the knees.” (See Board hearing transcript, page 20.) The Veteran suggested at his Board hearing that his neck and back disabilities “affect[] a lot of the other stuff because you compensate from how to have to walk or stand or something and that contributes to … the hip, the leg, you know, just everything else, basically. (See Board hearing transcript, pages 8-9.) The Board finds it necessary to remand these claims to obtain an etiology opinion that addresses the secondary theory of entitlement, based on causation and on aggravation. 4. Entitlement to a rating in excess of 20 percent for a neck disability is remanded. 5. Entitlement to an increased rating for a back disability, rated as 10 percent disabling prior to May 4, 2016, and as 20 percent disabling on and after that date, is remanded. In August 2020, the Veteran reported that he underwent neck surgery in July 2018 and back surgery in November 2018. An undated VA medical record notes that the Veteran underwent these surgeries at Augusta University. The Veteran’s VA medical records contain entries for records received from Augusta University General Neurosurgery in early August 2018. These records are presumably from the Veteran’s neck surgery. They are listed as having been scanned into VistA. These records are not available for the Board to view and must specifically be requested. Therefore, a remand is required to obtain these records. Likewise, the record does not contain the records from the Veteran’s November 2018 back surgery. The VA medical records of record do not cover November 2018. The Board considers it likely enough that the records from the Veteran’s November 2018 back surgery have been treated in the same manner as his neck surgery records, and have therefore been scanned into VistA. On remand, the RO should obtain any VA medical records that cover November 2018 and should obtain any related VistA records. As indicated above, both of these surgeries occurred at Augusta University. If the records of the July 2018 neck surgery and November 2018 back surgery are not obtained from VA, appropriate attempts should be made to obtain them directly from Augusta University. 6. Entitlement to a TDIU is remanded. The TDIU claim is intertwined with the other remanded issues and will be remanded as well. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file. Specifically, obtain the records from the Veteran’s July 2018 neck surgery and November 2018 back surgery, both of which should be located in VistA. If these records are not available, request that the Veteran provide the appropriate authorization to obtain these records from Augusta University. Notify the Veteran that he may submit these records himself. 2. Send the claims file to a qualified examiner to determine whether the Veteran’s left hip, right hip, and right ankle disabilities were caused or aggravated by his service-connected neck, back, and/or left and right knee and foot disabilities. The claims file must be made available to and reviewed by the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s left hip, right hip, and right ankle disabilities were caused OR aggravated by his service-connected neck, back, and/or left and right knee and foot disabilities. A complete rationale for all opinions should be provided, including discussion of the facts of the Veteran’s case and pertinent medical principles. 3. Following completion of the above, readjudicate the issues on appeal, to include the issue of entitlement to a TDIU. If any requested benefit remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.