Citation Nr: 21067570 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-24 944A DATE: November 4, 2021 ORDER Entitlement to service connection for a right ankle disorder, diagnosed as common peroneal palsy, to include as secondary to a service-connected left ankle disability, is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD) as secondary to a service-connected left ankle disability is granted. FINDINGS OF FACT 1. The most probative evidence shows that the Veteran's right ankle disorder is proximately related to his service-connected left ankle disability. 2. The most probative evidence shows that the Veteran's GERD is proximately related to his service-connected left ankle disability, including medication taken for such disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right ankle disorder, diagnosed as common peroneal palsy, are met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(d). 2. The criteria for entitlement to service connection for GERD are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1973 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). The issue of entitlement to service connection for a right ankle disorder was previously before the Board in December 2013 and June 2016 at which times it was remanded. In a June 2017 decision, the Board denied service connection for a right ankle disorder. The Veteran appealed the matter to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2018 Memorandum Decision, the Court partially vacated the June 2017 Board Decision for the Board to provide VA medical opinion that adequately addressed a nerve condition affecting the Veteran's right ankle and foot. In March 2019, the Board remanded the issue of service connection for a right ankle for a VA examination and medical opinion. The right ankle disorder issue was again before the Board in July 2021, at which time it was remanded for further development. The GERD issue was previously before the Board in October 2018 at which time it was remanded. The GERD issue was again before the Board in May 2020, at which time the Board denied service connection for GERD. The Veteran appealed the matter to the Court, and in a March 2021 Joint Motion for Partial Remand (JMPR), the parties agreed that a remand was warranted for the Board to address the claimed theory of service connection for GERD as secondary to pain medications used for the left ankle disability. The GERD issue was again before the Board in July 2021 at which time it was remanded for further development. 1. Entitlement to service connection for a right ankle disorder to include as secondary to a left ankle disorder Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any 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). To establish service connection for a disability, there must be competent evidence of the following: (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). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Analysis The Veteran has asserted that his right ankle disorder is proximately related to his service-connected left ankle disability. Service connection for a left ankle disability was granted in a June 1978 rating decision, with a 10 percent disability rating effective October 28, 1977. Following a VA examination in August 1997 that showed reduced range of motion, with arthritic changes and some instability, a September 1997 rating decision increased the disability rating to 20 percent disabling, effective August 5, 1997. This rating was assigned for marked limited motion of the left ankle. The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate, and its analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. VA treatment records in November 1979 note the Veteran's left ankle disorder and instability and "slight pronation of both ankles on standing." X-rays of the left ankle revealed loose distal tibial ligaments. It was recommended that the Veteran wear shoes with heel wedges and arch supports on both feet. A July 1997 chiropractic record indicates that the Veteran fractured his left ankle during service which left residual bone chips. The chiropractor stated that such chronic ankle injury would alter the Veteran's gait. At a VA examination in October 2000, related to the Veteran's claim for an increased rating of his left ankle disability, the examiner diagnosed degenerative joint disease of the left ankle with chronic swelling, and pes planus with hallux valgus deformity bilaterally. The examiner noted that the Veteran "walks favoring the left side." The examiner noted "marked atrophy of the muscles on the left." An October 2000 x-ray report noted right foot osteoarthritic change with mild marginal spurring about the first metatarsophalangeal joint of the great toe; in addition there is calcaneal spurring and some degree of hallux valgus deformity of the great toe bilaterally. Private treatment records dated November 2011 indicate that the Veteran had a prolonged gait disturbance from his left ankle injury and leg length inequality. The physician prescribed therapy to measure and fit a left-sided lift. In November 2011, a VA staff podiatrist opined that "[a]s a result of his unusual gait pattern, which was due to the bilateral nature of his nerve entrapment condition, it is my opinion, that more likely than not, he is now experiencing pain and immobility in his right lower extremity." An August 2016 examiner noted that the Veteran has a nerve disorder, right foot, specifically common peroneal nerve palsy, a disorder of the common peroneal nerve resulting in a right foot drop. He stated that this occurs at the head of the fibula which is near the knee at the popliteal fossa. The examiner found that the Veteran has no right ankle disorder, to include whether the nerve compression syndrome affects the nerves of the right ankle. As such, he did not provide an opinion as to whether a right ankle disorder was related to the Veteran's service connected left ankle disability. Following remands in December 2013 and June 2016, the Board denied service connection for a right ankle disorder in a June 2017 decision. The Board noted that the record does not contain any competent evidence nor did the Veteran allege, that any right ankle disorder is directly related to active duty service or manifested within one year of service. The Board therefore denied service connection on a direct basis. The Board also denied service connection on a secondary basis to the Veteran's service-connected left ankle disability. The Board found that the record does not reflect a diagnosis of a musculoskeletal disability but rather indicates that the Veteran has a disability of the nerves, variously diagnosed as common peroneal nerve compression or palsy or as IVDS, but causing pain in the right ankle. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2018 Memorandum Decision, the Court partially vacated the June 2017 Board Decision and remanded to the Board to provide a VA medical opinion to adequately address a nerve condition affecting the Veteran's right ankle and foot. As a result, in March 2019, the Board remanded for a VA examination and medical opinion. The VA examination occurred in October 2019. The Veteran reported that his left ankle was injured during military service and casted for 6 weeks. He stated that over the years his gait has been changed and he is now limping and putting weight on his right foot/ankle and favoring the left foot/ankle. The Veteran denied having physical therapy during service or after discharge. He reported nerve decompression surgery to the lower left extremity. He reported persistent bilateral ankle weakness and instability. The examiner opined that there is insufficient evidence in the Veteran's claims file to support the claim that the Veteran's right ankle disability at least as likely as not (50 percent or greater probability) proximately due to or the result of left ankle degenerative joint disease status post injury (previously considered as residuals; left ankle sprain of lateral ligaments with loose distal tibial ligaments; residuals of left ankle injury). The examiner stated that although notations in the file mention a right ankle disability, evidence in the record does not indicate a relationship between the right ankle condition and the Veteran's left ankle degenerative joint disease. The examiner found that the record is silent for right ankle medical diagnosis/condition or chronicity of care for such with regard to the Veteran's left ankle degenerative joint disease. He stated that the Veteran's file is deficient of evidence linking a right ankle pathology, condition, or diagnosis with the Veteran's left ankle degenerative joint disease. The Veteran was again afforded a VA examination in March 2021. The Veteran reported that his right ankle issues stared in 2008 with sharp pain. It became more difficult to walk and move around. He was treated with orthotic inserts and a brace. He was taking meloxicam for pain. The examiner found that the Veteran does not have a current diagnosis associated with a right ankle disorder. He opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected left ankle disability. The examiner stated that it is less likely than not that the veteran's service-connected left ankle is responsible for a nerve-related condition as no nerve condition was found upon today's completely normal peripheral nerve exam and no diagnosis was rendered. In addition with common peroneal nerve palsy there is no objective evidence on sensation testing of any impairment of sensation or peripheral neuropathy. The examiner stated that generally, when there is damage at the head of the fibula, there is a loss of sensation at or below the ankle due to loss of the innervating nerve. However, at this time, there is no sensation loss noted on physical exam. The examiner found that the left ankle condition is a separate condition with no nexus to connect the left to the right ankle. The examiner noted the Veteran was using a brace. He stated that medical records indicated normal right ankle x ray. He also noted a normal nerve conduction study from 11/22/2010. He stated that on examination, nerves continue to have normal sensation and function. In its most recent decision in July 2021, the Board remanded for an addendum opinion to address whether a nerve condition affecting the right ankle and foot, to include the previously diagnosed common peroneal nerve palsy, was caused or aggravated by the service-connected left ankle disability. 38 C.F.R. § 3.310. The Board noted that throughout the course of the appeal, the Veteran has asserted that he has a right ankle condition, to include a nerve condition effecting the right ankle, that is related to the service-connected left ankle disability, specifically due to antalgic gait. In September 2021, a VA examiner reviewed the record and opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected left ankle disability. The rationale was that there is no clear evidence from review of orthopedic literature (Wheeless' textbook of orthopedics 11/03/2015) to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individual's gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. The examiner stated that it is not unusual for two joints to share properties in the same person, but one joint's disease does not "spread" to another or cause damage to it. The examiner stated that the condition of the right ankle is due to something intrinsic to the right ankle and not the left ankle. (Oxford's Textbook on Orthopedics and Trauma). As to aggravation, the examiner found that any currently diagnosed conditions related to the Veteran's claimed right ankle disorder/peroneal nerve palsy (nerve damage to the right ankle) are not at least as likely as not aggravated beyond the natural progression by his service connected left ankle disability. The rationale was that a 10/29/2019 examination demonstrates 4/5 lower extremity strength without evidence of ankylosis or use of assist devices (outside of brace), this falls within the projected natural history of the condition and does not represent aggravation (beyond natural progression). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Board observes that the 2016 examiner's finding of no right ankle disorder is inconsistent with his finding of common peroneal nerve palsy and right foot drop. In addition, foot drop is a gait problem. "The common peroneal nerve branches from the sciatic nerve and provides sensation to the front and sides of the legs to the top of the foot. This nerve also controls the muscles in the leg that lift the ankle and toes upward. Injuries to the peroneal nerve can cause numbness, tingling, pain, weakness and a gait problem called foot drop." https://www.hopkinsmedicine.org/health/conditions-and-diseases/peroneal-nerve-injury . The October 2019 examiner did not address the Veteran's reports that over the years his gait has been changed and he was limping and putting weight on his right foot/ankle and favoring the left foot/ankle, or his reported bilateral ankle weakness and instability. The examiner failed to address the Veteran's lay statements. A rationale that does not take into account the Veteran's lay statements is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In addition, while drawing the conclusion that the Veteran's right ankle disorder is not related to his left ankle service connected disability, the examiner offers inadequate support for his opinion and offers no other explanation for the Veteran's right ankle symptoms. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds this examination has limited probative value. The March 2021 examiner found that the Veteran does not have a current diagnosis associated with a right ankle disorder or peripheral nerve condition and did not provide an etiological opinion. He did not address the Veteran's lay statements reporting pain and difficulty walking and moving around or that he was treated with orthotic inserts and a brace and was taking meloxicam for pain. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner noted a 10 year old nerve conduction study which the Board finds is too far removed in time to be relevant to the Veteran's claim. Further, while concluding that the Veteran's right ankle symptoms are separate from his left ankle disability, the examiner offered no other medical reason for the Veteran's right ankle symptoms. The Board also finds this examination to be of little probative value due to its conclusory rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The September 2021 examiner found that there is no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis. However, the examiner did not relate this literature to the Veteran's specific disorder. Wallin v. West, 11 Vet. App. 509, 514 (1998). For example, the October 2000 examiner stated that the Veteran "walks favoring the left side" and noted "marked atrophy of the muscles on the left." This evidence is favorable to the Veteran's claim and the Board must consider it. Thompson v. Gober, 14 Vet. App. 187, 188 (2000). The Board finds that the rationale for the September 2021 VA medical opinion relied on an inaccurate factual premise and failed to take into account all of the evidence that is favorable to the Veteran. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). Reviewing the evidence in this matter, the Board notes the Veteran's complex medical history and multiple remands, examinations, and medical opinions, some of which offer conflicting evidence. Nonetheless, remand for another opinion is to be avoided if there is no benefit to the Veteran and a decision can be made on the merits. Soyini v. Derwinski, 1 Vet. App. 540 (1991). The Board finds that a decision on the merits is possible and that when weighing the evidence, it is at least in equipoise as to whether the Veteran's right ankle disorder was caused by or aggravated by his service-connected left ankle disorder. The Board notes that no other cause has been shown for the Veteran's right ankle disorder. Further, the September 2021 examiner acknowledges that medical literature shows that an injury to one joint would have significant impact on another or opposite uninjured joint or limb if the injury resulted in a major muscle or nerve damage causing partial or complete paralysis. To that point, review of the record shows that the October 2000 examiner noted that the Veteran "walks favoring the left side" and "marked atrophy of the muscles on the left." The Board finds that this is indicative of "major muscle or nerve damage." In addition, the favorable nexus opinion of the Veteran's treating podiatrist is entitled to high probative weight as it is based on the Veteran's specific right ankle disorder and manifestations of his left ankle disability. Conversely, the VA medical opinions are difficult to reconcile with the examinations and other evidence of record, some of which is conflicting or not noted or considered at all. The findings by the Veteran's private physician and VA podiatrist that the Veteran's gait was impacted by his left knee disability, and such altered gait is related to his right knee disorder, are entitled to significant probative weight. Further, the Veteran's competent lay statements as to his left leg disability impacting his gait and in turn causing his right ankle disorder are credible and also entitled to some probative weight as an altered gait is readily observable by a layperson. Barr v. Nicholson, 21 Vet. App. 303 (2007). In sum, the Board finds that the evidence is at least in equipoise as to whether the Veteran's right ankle disorder, diagnosed as common peroneal palsy, is proximately related to his service-connected left ankle disability. The Board notes that there is medical evidence that his left ankle injury resulted in an altered gait and marked atrophy of muscles, and that these manifestations in turn caused or aggravated the Veteran's right ankle disorder, to include nerve damage. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Providing the benefit of the doubt to the Veteran, service connection for a right ankle disability, diagnosed as common peroneal palsy, is warranted. The Board also acknowledges that in October 2021 correspondence, the Veteran's representative raised a new theory of entitlement to service connection for a right ankle disorder, specifically that the Veteran's left ankle disorder caused his obesity and BMI in excess of 30, which in turn caused or aggravated his right ankle disorder. However, since the Board is granting service connection for the claimed disability, this theory of entitlement need not be addressed. 2. Entitlement to service connection for gastroesophageal reflux disease as secondary to a service-connected left ankle disability The Veteran has asserted that his GERD is related to pain medications used to treat his service-connected left ankle disability. A November 2019 VA examination indicates that the Veteran was diagnosed with GERD in 2001. The Veteran reported that he began to have stomach aches with burping and a feeling of epigastric pressure with indigestion during active service. He did not seek medical care and treated symptoms with over the counter Rolaids at that time. The Board denied service connection for GERD in its May 2020 decision. The parties filed a Joint Motion for Partial Remand (JMPR) with the Court of Appeals for Veterans Claims in March 2021. The parties agreed that remand was warranted for the issue of entitlement to service connection for GERD as secondary to the service-connected left ankle disability because the Board failed to address a reasonably raised theory of entitlement. Robinson v. Peake, 21 Vet. App. 545 (2008). Specifically, in the December 16, 2015 notice of disagreement (NOD), the Veteran's counsel stated that "the VA should have considered whether [the] Veteran's GERD could be related to the pain medications he takes for his left ankle condition." As this issue was explicitly raised on appeal and was not addressed by the Board, the parties agreed that on remand, the Board must address whether the Veteran's GERD is related to any pain medications he takes for his service-connected left ankle disability. The Court issued an order granting the JMPR and remanded for action consistent with the terms of the joint motion. The Veteran did not challenge the Board's denial of entitlement to service connection for GERD on a direct theory basis. He has thus abandoned that claim. In its July 2021 decision, the Board remanded for an opinion addressing whether GERD was caused by or aggravated by the service-connected left ankle disability, to include as due to the effects of pain medications used to treat the left ankle disability. The Veteran's medical records indicate that he was prescribed opioids, narcotics, and NSAIDs for pain caused by his left ankle disability. The issue is whether his GERD is (a) proximately caused by or (b) proximately aggravated by medication prescribed to treat his left ankle disability. In September 2021, a VA examiner reviewed the record and provided an opinion. The examiner noted a diagnosis of GERD in 1977. The examiner indicated the gradual onset of worsening acid reflux beginning in 1977. Current symptoms were noted as intermittent gastrointestinal symptoms, and the Veteran reported taking continuous medication for GERD. The examiner opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition. The rationale was that the condition is not an established primary etiology of gastroesophageal reflux disease in the medical literature. The examiner stated that while GERD can be associated with NSAID use, and while heavy NSAID use can be associated with increased risk of GERD, there is no evidence that the NSAID use was excessive or otherwise significantly deviated from the standard of care. Furthermore, he stated that gastroesophageal reflux disease is an exceedingly common condition which often occurs without a specific predisposing etiology. As to aggravation, the examiner found that the Veteran's claimed GERD was not at least as likely as not aggravated beyond its natural progression by his service-connected left ankle disorder, including medications taken for such disorder. Current symptoms described as intermittent indigestion controlled with omeprazole and without endoscopic evidence of abnormality fall within the projected natural history of the condition and do not represent aggravation (beyond natural progression). Current symptoms described as intermittent indigestion controlled with omeprazole and without endoscopic evidence of abnormality fall within the projected natural history of the condition and do not represent aggravation (beyond natural progression). In an October 2021 correspondence, the Veteran's counsel noted that the September examiner found that the Veteran's GERD symptoms fall within the natural progression of the condition but did not address whether the Veteran would have developed GERD "but for" the use of NSAIDS. Veteran's counsel noted that the National Library of Medicine lists the use of NSAIDs as a significant risk factor in developing GERD. The Board notes that service treatment records show that the Veteran reported acid reflux symptoms in 1977. Acid reflux may progress to GERD, which is a more severe form of reflux. https://www.mayoclinic.org/diseases-conditions/heartburn/expert-answers/heartburn-gerd/faq-20057894. While the Board cannot make a medical or legal determination as to whether the Veteran would have developed GERD "but for" the use of NSAIDS, the Board can make a legal determination as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's GERD was caused by or aggravated by his use of NSAIDS. That is, whether his symptoms of GERD were aggravated by NSAIDS and other prescribed medications taken from the onset of his left ankle disability in 1977. The Board notes that the record shows that the Veteran has not only been prescribed NSAIDS but also narcotics for pain control of his left ankle disability. The record shows that the Veteran was prescribed NSAIDs (Etodolac, Meloxicam); opioids (hydrocodone); and narcotics (percoset). These medications can increase acid reflux and worsen GERD. https://www.mayoclinic.org/diseases-conditions/gerd/expert-answers/heartburn-gerd/faq-20058535 The Board finds that the September 2021 examiner's ultimate opinion is entitled to low probative weight. The examiner acknowledged that "heavy" NSAID use can be associated with increased risk of gastroesophageal reflux disease, without explaining what the basis was for his conclusion that NSAID use must be "heavy" to cause GERD or what constitutes "heavy" use. The Board notes that the severity of the Veteran's left ankle disability is documented throughout the medical record, as are his prescribed medications. Also, the Veteran's spouse submitted a statement in January 2011 in which she indicated that the only time the Veteran was not in pain was when he was taking pain medications. The examiner concluded that there was no evidence that the Veteran's NSAID use was excessive or otherwise significantly deviated from the standard of care but declined to address the Veteran's specific prescribed medications or actual use thereof or the basis of the examiner's assertion that such use must be excessive and deviate from the standard of care to cause GERD. However, the Board, as the ultimate fact finder, finds that based on the totality of the evidence of record, the Veteran's NSAID use would be considered "heavy" and that such use, using the examiner's analysis, would therefore be sufficient to cause or aggravate his GERD. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran's medication used to treat his left ankle disorder caused or aggravated his GERD. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Therefore, providing the benefit of the doubt to the Veteran, the Board finds that service connection for GERD is also warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.