Citation Nr: 21061711 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-34 899 DATE: October 5, 2021 ORDER Service connection for left ankle disability is denied. Service connection for right ankle disability is denied. Service connection for a back disability is denied. FINDINGS OF FACT 1. The Veteran's left ankle disability was not present during service, did not manifest to a compensable degree within one year of separation, is neither proximately due to nor aggravated by his service-connected knee disability, and is not otherwise caused or aggravated by an in-service injury or disease. 2. The Veteran's right ankle disability was not present during service, did not manifest to a compensable degree within one year of separation, is neither proximately due to nor aggravated by his service-connected knee disability, and is not otherwise caused or aggravated by an in-service injury or disease. 3. The Veteran's back disability was not present during service, did not manifest to a compensable degree within one year of separation, is neither proximately due to nor aggravated by his service-connected knee disability, and is not otherwise caused or aggravated by an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for left ankle disability, to include as secondary to service-connected knee disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). 2. The criteria for service connection for right ankle disability, to include as secondary to service-connected knee disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). 3. The criteria for service connection for back disability, to include as secondary to service-connected knee disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Air Force from April 1971 to December 1978 and from December 2001 to May 2003 with additional service in the Tennessee Air National Guard until 2005. This matter comes before the Board of Veterans' Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in July 2015 and a Statement of the Case (SOC) was issued in May 2017. The Veteran perfected an appeal by submitting a timely VA Form 9 in June 2017. The issue was previously before the Board. In February 2019, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to: (1) obtain any outstanding VA or private treatment records; (2) obtain an addendum opinion regarding the Veteran's current back condition; (3) obtain an addendum opinion regarding the Veteran's bilateral ankle condition; and to (4) readjudicate the claim on appeal. The AOJ added the Veteran's VA Medical Center treatment records, scheduled VA examinations for the Veteran's bilateral ankle disability and back disability, then issued a supplemental statement of the case (SSOC) issued in July 2020. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert, 1 Vet. App. at 54. 1. Service connection for left ankle disability 2. Service connection for right ankle disability The Veteran contends that his bilateral ankle disability was caused or aggravated by his service-connected knee disability. Service treatment and physical examination records are silent for any symptoms, injuries, diagnoses or treatment for the ankles or feet. In July 2006, the Veteran was afforded a VA examination for his joints. The Veteran reported a meniscal tear of the left knee in 2002 and arthroscopy in 2003. The examiner noted that the Veteran had normal gait, and the Veteran did not report any problems with his ankles. In July 2007, the Veteran was afforded a VA examination for his foot pain. The Veteran only reported pain on his heel and there was evidence of abnormal weight bearing based on unusual shoe wear pattern bilaterally. The examiner opined that the heel spurs were less likely than not related to the Veteran's knee injury as there was "no medical rationale that would link heel spurs" to mild degenerative disease of a unilateral knee injury. The Veteran's VA Medical Center treatment records do not show any complaints of ankle pain. In June 2014, when the Veteran complained of possible sleep apnea, the Veteran only reported occasional left knee pain and joint stiffness. In June 2015, the Veteran reported that he twisted his ankles multiple times in active duty and that he believed that his current ankle pain was due to 10 years of active duty and 22 years of civilian National Guard duty. The Veteran reported that he was a civilian employee of the National Guard from 1981 to 2006. The examiner noted that the Veteran had ligament tears due to ankle inversions based on the MRI results. In June 2017, a private medical practitioner opined that the Veteran has severe bilateral knee pain that results in bilateral foot pain due to his halting gait. The private practitioner did not opine on the etiology nor the nature of the Veteran's bilateral foot disability, discussing only the symptom of pain. In October 2018, the Veteran asserted that he was discouraged from reporting any medical condition for fear of being set back or profiled down. The Veteran also stated that he was sure that he did not report his ankle sprains. In November 2019, the Veteran was afforded a VA examination for his bilateral ankle disability. The Veteran was diagnosed as having bilateral lateral collateral ligament sprain and degenerative or traumatic arthritis. The Veteran reported that the bilateral sprain was due to his bilateral knee pain that started years ago. The examiner opined that it was less likely than not caused by service as there was no medical record of ankle injury or chronic ankle pain while on active duty. The examiner instead attributed the bilateral ankle osteoarthritis to the Veteran's natural aging process and his weight. The examiner cited medical literature supporting her opinion that obesity was "perhaps the strongest modifiable risk factor for the development of osteoarthritis." On the Veteran's obesity, the examiner opined that the Veteran had multiple risk factors including sedentary lifestyle, increase in caloric intake, decrease in physical expenditure, lower extremity disability, aging, hypothyroidism, and genetic predisposition. The examiner reasoned that given the Veteran's multiple risk factors, his obesity was less likely than not proximately due to or the result of the Veteran's bilateral knee disability. In May 2020, the VA examiner added an addendum opinion explaining that there is no medical evidence of the Veteran's knee disability causing or aggravating the Veteran's bilateral ankle disability. The examiner added that there needs to be "significant shortening of the injured limb" causing abnormal gait pattern for an extended period of time for a knee disability to cause or aggravate the other leg. After considering the evidence of record, the Board concludes that the most probative evidence establishes that the Veteran's current bilateral ankle disability is not causally related to his active service or any incident therein, to include service-connected bilateral knee disability. As an initial matter, the Board finds that the June 2017 private medical opinion is inadequate as it does not discuss the Veteran's bilateral ankle disability and limited its opinion to just one of the symptoms. In addition, the opinion was not supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board also observes that the VA Medical Center treatment records do not show the Veteran complaining of any ankle pain prior to submitting his claim for bilateral ankle disability. The Board finds that had the Veteran experienced symptoms of bilateral ankle disability, he would have reported it in a clinical setting [or claimed it] as he did with his other ailments. He denied any foot or ankle symptoms when asked on eight physical examinations from 1974 to 2001. There were records of private care for a knee disability in which reporting of ankle complications would have been appropriate. Cf. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7))); see AZ v. Shinseki, 731 F.3d 1301 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Board also observes that the Veteran did not report any bilateral ankle pain for over a decade since discharge despite not being discouraged to report any pain or ailments. The Board also finds that the November 2019 VA examination to be adequate as it is supported by rationale citing medical literature and directly addresses the Veteran and the June 2017 private medical practitioner's contentions that the Veteran's bilateral knee disability caused or aggravated the Veteran's bilateral ankle disability. The November 2019 examiner explained that the most likely cause was the Veteran's age and obesity, and further explained that the Veteran's obesity was not caused by the Veteran's bilateral knee disability. The Board finds that the opinion is also supported by contemporaneous medical evidence, as the Veteran had normal gait in 2006, even after an injury and surgery on his knee. Although the Veteran had uneven weight distribution in 2007, the July 2007 VA examiner opined that the Veteran's knee disability was not the cause of the Veteran's heel disability, indirectly supporting the November 2019 VA examiner's rationale that there was no evidence of knee disabilities causing ankle disabilities. Moreover, to the extent the Veteran asserts that a relationship exists between his bilateral ankle disability and his purported ankle injuries during active duty, the Board finds that such assertions do not provide persuasive evidence in support of the claim. The matter of the medical etiology of the disability here at issue is one within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to attest to matters within their own personal knowledge, to include symptoms experienced or observed (as appropriate), as well as to provide opinions on some medical issues, such as those perceived through the senses (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the etiology of the Veteran's bilateral ankle disability is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, lay assertions as to the etiology of the Veteran's bilateral ankle disability have no probative value. In summary, the absence of competent medical or scientific evidence documenting a relationship between the Veteran's bilateral ankle disability and his purported ankle injuries in active service, service connection on a direct basis must be denied. As discussed in the prior February 2019 Board decision, obesity is not a disability per se, and service connection may not be granted for another disability rating proximately caused by obesity. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). Obesity, however, may be an "intermediate step" in a secondary-service-connection analysis when service-connected disability aggravates it. VACOPGCPREC 1-2017 (January 6, 2017). The November 2019 VA examiner opined that the Veteran's obesity was less likely than not (less than 50 percent probability) caused by the Veteran's service-connected knee disability as the Veteran had a number of other factors that are known risk factors of obesity. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran's claims, and as such entitlement to service connection for left and/or right ankle disability is denied. 3. Service connection for a back disability The Veteran contends that he injured his back during active duty. In the alternative, the Veteran contends that his back disability was caused and/or aggravated by his service-connected knee disability. Service treatment and physical examination records are silent for any symptoms, injuries, diagnoses or treatment for the back. In July 2006, the Veteran was afforded a VA examination for his joints. The Veteran reported a meniscal tear of the left knee in 2002 and arthroscopy in 2003. The examiner noted that the Veteran had normal gait, and the Veteran did not report any problems with his back. In July 2007, the Veteran was afforded a VA examination for his foot pain. Again, the Veteran did not report any back pain. VA Medical Center treatment records do not show the Veteran complaining of back pain prior to his claim of service connection for a back disability. In July 2017, a private practitioner opined that the Veteran suffered from lumbago that was "possibly" worsened by his halting gait caused by his chronic knee pain. The private practitioner did not state whether the Veteran's lumbago was less likely or at least as likely as not worsened by the Veteran's service-connected knee disability, nor offered a rationale supporting his opinion. The Veteran was afforded a VA examination in November 2019 for his back disability. The Veteran was diagnosed as having degenerative arthritis of the spine. He reported that chronic back pain started years ago and that he had an injury in the late 1970s during his second enlistment in the military. The examiner opined that the back disability was less likely than not caused by active service as there is no record of a significant back injury or chronic back complaints while on active duty. In addition, the examiner explained that advanced age was one of the strongest risk factors associated with osteoarthritis and that obesity was perhaps the strongest modifiable risk factor for the development of osteoarthritis. Regarding obesity, the examiner explained that the Veteran had multiple risk factors for being obese as discussed in the previous section above and opined that it was less likely than not caused by the Veteran's bilateral knee disability. After considering the evidence of record, the Board concludes that the most probative evidence establishes that the Veteran's current back disability is not causally related to his active service or any incident therein, to include service-connected bilateral knee disability. As an initial matter, the Board finds that the July 2017 private medical opinion is inadequate as it does not discuss the Veteran's osteoarthritis but only his back pain. In addition, the opinion was not supported by a rationale. See Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. The Board also observes that the VA Medical Center treatment records do not show the Veteran complaining of any ankle pain prior to submitting his claim for bilateral ankle disability. The Board finds that had the Veteran experienced symptoms of bilateral ankle disability, he would have reported it in a clinical setting [or claimed it] as he did with his other ailments. He denied any foot or ankle symptoms when asked on eight physical examinations from 1974 to 2001. There were records of private care for a knee disability in which reporting of back complications would have been appropriate. Cf. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7))); see AZ v. Shinseki, 731 F.3d 1301 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Board also finds that the November 2019 VA examination to be adequate as it is supported by rationale citing medical literature and directly addresses the Veteran and the June 2017 private medical practitioner's contentions that the Veteran's bilateral knee disability caused or aggravated the Veteran's bilateral ankle disability. The November 2019 examiner explained that the most likely cause was the Veteran's age and obesity, and further explained that the Veteran's obesity was not caused by the Veteran's bilateral knee disability. The Board finds that the opinion is also supported by contemporaneous medical evidence, as the Veteran had normal gait in 2006, even after an injury and surgery on his knee. Although the Veteran had uneven weight distribution in 2007, the July 2007 VA examiner opined that the Veteran's knee disability was not the cause of the Veteran's heel disability, indirectly supporting the November 2019 VA examiner's rationale that there was no evidence of knee disabilities causing ankle disabilities. Moreover, to the extent the Veteran asserts that a relationship exists between his bilateral ankle disability and his purported ankle injuries during active duty, the Board finds that such assertions do not provide persuasive evidence in support of the claim. The matter of the medical etiology of the disability here at issue is one within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to attest to matters within their own personal knowledge, to include symptoms experienced or observed (as appropriate), as well as to provide opinions on some medical issues, such as those perceived through the senses (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the etiology of the Veteran's bilateral ankle disability is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, lay assertions as to the etiology of the Veteran's bilateral ankle disability have no probative value. In summary, the absence of competent medical or scientific evidence documenting a relationship between the Veteran's bilateral ankle disability and his purported ankle injuries in active service, service connection on a direct basis must be denied. As discussed in the prior February 2019 Board decision, obesity is not a disability per se, and service connection may not be granted for another disability rating proximately caused by obesity. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). Obesity, however, may be an "intermediate step" in a secondary-service-connection analysis when service-connected disability aggravates it. VACOPGCPREC 1-2017 (January 6, 2017). The November 2019 VA examiner opined that the Veteran's obesity was less likely than not (less than 50 percent probability) caused by the Veteran's service-connected knee disability as the Veteran had a number of other factors that are known risk factors of obesity. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran's claims, and as such entitlement to service connection for left and/or right ankle disability is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, 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.