Citation Nr: 21065917 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-28 870 DATE: October 27, 2021 ORDER Service connection for a low back disorder, to include as secondary to bilateral knee and foot disorders, is denied. Service connection for a left hip disorder, to include as secondary to bilateral knee and foot disorders, is denied. Service connection for a right hip disorder, to include as secondary to bilateral knee and foot disorders, is denied. Service connection for a left ankle disorder, to include as secondary to bilateral knee and foot disorders, is denied. Service connection for a right ankle disorder, to include as secondary to bilateral knee and foot disorders, is denied. REMANDED The claim for service connection for impairment of intellectual functioning is remanded. FINDINGS OF FACT 1. The most probative evidence of record weighs against a conclusion that the Veteran has a low back disorder, left or right hip disorder, or left or right ankle disorder due to service; arthritis of the low back or left or right hip was not shown within one year of service. 2. The most probative evidence of record weighs against a conclusion that the Veteran has a low back disorder, left or right hip disorder, or left or right ankle disorder that is proximately due to or a result of service-connected bilateral knee and foot disorders, to include with consideration of aggravation. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder, to include as secondary to bilateral knee and foot disorders, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2021). 2. The criteria for service connection for a left hip disorder, to include as secondary to bilateral knee and foot disorders, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2021). 3. The criteria for service connection for a right hip disorder, to include as secondary to bilateral knee and foot disorders, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2021). 4. The criteria for service connection for a left ankle disorder, to include as secondary to bilateral knee and foot disorders, are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2021). 5. The criteria for service connection for a right ankle disorder, to include as secondary to bilateral knee and foot disorders, are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1992 to August 1995. This case was remanded by the Board of Veterans' Appeals (Board) in March 2019 and is now ready for appellate review. Two additional claims remanded by the Board in March 2019, service connection for a psychiatric disorder and entitlement to a total disability rating for compensation based on individual unemployability, were granted by a May 2020 rating decision and thus are no longer on appeal. I. Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. U.S.C. § 1110; 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 service. 38 C.F.R. §§ 3.303(d). Where a Veteran manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. § §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases listed under 38 C.F.R. § 3.309 (a), such as arthritis. A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b). II. Analysis The service treatment reports (STRs) are silent for a hip or right ankle disability. Treatment for a left ankle sprain was shown in service in January 1993. An x-ray of the left ankle conducted at that time showed soft tissue swelling without evidence of fracture or dislocation. The Veteran was treated for back pain in September 1994 at which time the assessment was back sprain. Follow up treatment for this condition in October 1994 revealed no significant findings and indicated the Veteran was recovering. Following the Veteran's service separation, service connection was ultimately grated for bilateral residuals of accessory navicular bones of each foot and patellofemoral syndrome of each knee, and the Veteran's principal argument throughout this appeal is that service connection is warranted for a lumbar spine disability and bilateral hip and ankle disabilities as secondary to his service-connected foot and knee disabilities. The medical evidence of record has not supported this assertion. In this regard, after a March 2010 VA examination diagnosed the Veteran with lumbosacral strain and lumber degenerative disc disease, the examiner rendered the following conclusion: Having reviewed the record and examination, it is not likely the spine condition is related to [the] feet, but rather a natural occurring phenomenon. Thereafter, a March 2012 VA examination of the ankles noted the in-service diagnosis of left ankle sprain in January 1993 and referenced post service x-rays conducted in September 2010 showing hypertrophic changes in the right ankle and a normal left ankle. Following a full examination of the Veteran's ankles, the examiner found that the Veteran's bilateral ankle conditions were less likely as not a result of or caused by his service-connected bilateral foot disorders and the Veteran's left ankle condition was not the result of his in-service ankle sprain. As a rationale, the examiner stated that the STRs showed no documentation of ankle pain when he was seen for midfoot pain in 1995. An examination of the hips conducted in January 2015 VA resulted in the following conclusion: The claim[s] file has been reviewed. The Veteran is claiming service connection for a bilateral hip condition secondary to his bilateral foot and knee condition. As of date, the [V]eteran does not have a diagnosed bilateral hip condition. The etiology of the [V]eteran's bilateral hip pain has not been determined. The bilateral hip x-ray reveals minimal narrowing of the joint spaces in both hips. The [V]eteran's claimed bilateral hip pain level well exceeds the x-ray findings. At today's exam, the [V]eteran claimed that the bilateral hip pain was too severe for him to complete range of motion and strength testing. Bilateral hip pain associated with the [V]eteran's service-connected bilateral knee and bilateral foot condition would likely be secondary to a mechanical gait. This pain would develop gradually and would not likely prevent hip movement. Therefore, it is my opinion that the [V]eteran's claimed bilateral hip pain is less likely as not caused by or the result of his service-connected bilateral knee and bilateral foot condition[s]. Noting that while the above opinion indicated that the Veteran did not have a diagnosed bilateral hip condition, x-rays demonstrated positive findings in each hip and the examiner indicated that hip pain was secondary to mechanical gait, the Agency of Original Jurisdiction (AOJ) requested a clarifying opinion. Such was completed in April 2017 as follows: Since my initial exam, the [V]eteran has been seen by his primary care provider, he has undergone an EMG (electromyogram) of the lower extremities[,] and he has been seen by Rehab[iliative] medicine for the management of chronic pain. Based on the [V]eteran's exams and description of his deep lower back pain, it appears that the [V]eteran's primary source of pain is lower back pain. As noted previously, the [V]eteran's reported bilateral hip pain level well exceeds the x-ray findings. Based on the now available evidence, it appears that the [V]eteran's bilateral hip pain is deferred lower back pain. Therefore, it is my opinion that the Veteran's claimed bilateral hip pain is less likely as not caused by or the result of his service-connected bilateral knee and bilateral foot condition[]. The Board in its March 2019 remand noted that the Veteran had not been provided opinions as to whether the Veteran's service-connected bilateral foot and knee disabilities had aggravated a lumbar spine, bilateral hip, or bilateral ankle disability, and requested addendum opinions to address this matter. Such were completed in January 2020, with the conclusions rendered that it was not at least as likely as not that the service-connected bilateral foot and knee disabilities aggravated a lumbar spine, bilateral hip, or bilateral ankle disability beyond its natural progression. The common rationale for the conclusion with respect to the lumbar spine was as follows: [The [V]eteran was diagnosed with lumbar strain, degenerative arthritis[,] and bilateral lumbar radiculopathy on today's exam. [The] Veteran report[]s his back pain started a year after his injury in the service, around 1996. However, there was a [medical] consult dated 10/26/16 in which [the] [V]eteran reported low back pain started in 2004 when his back locked up. EMG findings were normal on 4/12/13. [The] Veteran was seen by his primary care provider on 8/23/18, in which it was determined that his polyarthralgia and chronic low back pain was most likely secondary to morbid obesity. [The] Veteran's low back condition is likely due to morbid obesity and natural aging, and less likely due to his [service-connected foot and ankle disabilities]. Although the Veteran's service connected [foot and knee disabilities] cause[] pain and could cause an altered gait, [the] [V]eteran has had a normal gait documented on multiple medical exams, dates include 10/26/16, 11/8/12, 3/9/11, 3/8/11, 3/7/11, 7/16/10, 5/11/10, 4/13/10. [The] Veteran had an antalgic/wide base gait documented on [medical] valuation dated 6/10/13. An antalgic gait does not cause degenerative arthritis but can cause pain. It is less likely than not that the [V]eteran's [service-connected foot and ankle disabilities] aggravated the [V]eteran's low back condition beyond its natural progression. The [V]eteran's morbid obesity has likely aggravated his low back condition. A nexus has not been established. The common rationale with respect to the hips was as follows: [The] Veteran was diagnosed with bilateral hip degenerative arthritis on x-ray dated 1/9/15. Arthritis was minimal according to the radiology report. The [V]eteran's significant amount of hip pain exceeds the x-ray findings. [The] Veteran has also been seen by rehab medicine in 2016 regarding his bilateral hip pain. It was concluded that the etiology of his bilateral hip pain was referred pain from his back. [The] Veteran was seen by his primary care provider on 8/23/18, in which it was determined that his polyarthralgia and chronic low back pain was most likely secondary to morbid obesity. [The] Veteran stated on exam today that his bilateral hip pain started in 2010 when he gained a significant amount of weight. He stated this was the time he stopped working and was not moving around as much. [The] Veteran is currently dieting and hoping to lose weight. Therefore, [the] [V]eteran's [bilateral] hip condition is likely due to morbid obesity and natural aging, and less likely due to his [service connected foot and ankle disabilities] Although the [V]eteran's service connected [foot and knee disabilities] cause[] pain and could cause an altered gait, [the] [V]eteran has had a normal gait documented on multiple medical exams, dates include 10/26/16, 11/8/12, 3/9/11, 3/8/11, 3/7/11, 7/16/10, 5/11/10, 4/13/10. [The] Veteran had an antalgic/wide base gait documented on medical evaluation dated 6/10/13. An antalgic gait does not cause degenerative arthritis but can cause pain. It is less likely than not that the Veteran's [service-connected foot and ankle disabilities] aggravated the [V]eteran's [bilateral] hip condition beyond its natural progression. The [V]eteran's morbid obesity has likely aggravated his [bilateral] hip pain. A nexus has not been established. The common rationale with respect to the ankles was as follows: The VA does not typically accept pain in joint or arthralgia as a diagnosis. However, I am unable to diagnose anything other than ankle arthralgia for the [V]eteran's subjective findings. X-rays are essentially unremarkable. [The] Veteran's bilateral ankle pain subjectively well exceeds his x-ray findings. Throughout his C[laims]file, the only diagnosed condition for his ankles is either arthralgia or pain in [the] joint. [The] Veteran does not have any exam findings consistent with a specific ankle condition. [The] Veteran's ankle pain is an unspecified etiology. Therefore, diagnosis of arthralgia indicated on exam. [The] Veteran reported his ankle pain started the same time that he was diagnosed with his service connected [foot and knee] conditions due to injury while in service. [The] Veteran was seen by his primary care provider on 8/23/18, in which it was determined that his polyarthralgia and chronic low back pain was most likely secondary to morbid obesity. [The] Veteran's [] ankle arthralgia is likely due to morbid obesity and natural aging, and less likely due to his [service-connected foot and ankle disabilities]. It is less likely than not that the [V]eteran's service connected [foot and knee] [] condition[s] aggravated the [V]eteran's bilateral ankle condition beyond its natural progression. [The] Veteran's morbid obesity has most likely aggravated his [] ankle arthralgia. A nexus has not been established. There is no positive opinion of record that contradicts the negative opinions set forth above, and the Board finds these opinions to be definitive as to the matters for consideration as they are based on a thorough review of the clinical record and are supported by adequate rationale. To the extent the assertions of the Veteran are advanced in an attempt to establish that he has a lumbar spine disability, left or right hip disability or left or right ankle disability as a result of service or service-connected foot or knee disabilities, such complex medical matters are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is not shown to have the appropriate training and expertise, he is not competent to render a persuasive opinion as to such matters. While the Veteran is competent to describe any lay observable symptoms associated with a lumbar spine disability, left or right hip disability, or left or right ankle disability since service, the undersigned finds the lack of any competent evidence linking these conditions to service to be more probative than any lay assertions made in connection with the claims for service connection for a lumbar spine disability, left or right hip disability, or left or right ankle disability and that these facts weigh against a finding of continuity of relevant symptoms associated with these conditions since service. Finally, as the Veteran's arthritis of the lumbar spine and left and right hips was not shown to a compensable degree within one year of separation from service, service connection for such on the basis of chronic disease, to include by way of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Given all of the above, the Board finds that the preponderance of the evidence is against the claims for service connection for a lumbar spine disability, left or right hip disability, and left or right ankle disability. As such, these claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. REMAND Given the grant of service connection of persistent depressive disorder by a May 2020 rating decision following the March 2019 Board remand and the provisions of 38 C.F.R. § 4.127which states that except as provided by 38 C.F.R. § 3.310(a) (secondary service connection), disability from intellectual development disorders may not be service-connected for compensation purposesthe undersigned finds that a VA examination that includes an opinion as to whether the Veteran has impairment of intellectual functioning that is proximately due or the result of the service connected psychiatric disorder or has been aggravated by such is necessary to fulfill the duty to assist. For the reasons set forth above, this case is REMANDED for the following development: Arrange for a VA psychiatric examination that includes an opinion as to whether the Veteran has impairment of intellectual functioning that is proximately due or a result of persistent depressive disorder or is aggravated by such. The examiner should support the opinion with a detailed rationale. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Andrew Ahlberg, 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.