Citation Nr: 21069579 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-11 425 DATE: November 18, 2021 ORDER Entitlement to service connection for a right ankle condition is denied. Entitlement to service connection for a bilateral knee condition is denied. Entitlement to service connection for a bilateral hip condition is denied. REMANDED Entitlement to service connection for a left ankle condition is remanded. Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a left shoulder condition is remanded. Entitlement to service connection for a right shoulder condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's right ankle condition began during or as a result of service, including as secondarily caused or aggravated beyond its natural progression by any service-connected disability. 2. The preponderance of the evidence is against finding that the Veteran's bilateral knee condition began during or as a result of service, including as secondarily caused or aggravated beyond its natural progression by any service-connected disability. 3. The preponderance of the evidence is against finding that the Veteran's bilateral hip condition began during or as a result of service, including as secondarily caused or aggravated beyond its natural progression by any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right ankle condition have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for a bilateral knee condition have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for a bilateral hip condition have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1986 to July 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2013, July 2015, and January 2018 rating decisions of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a March 2021 hearing before the Board of Veterans' Appeals (Board). In May 2021, the Board remanded the claims on appeal for new VA examinations to address direct service connection as well as whether any of the claimed conditions were caused or aggravated by the Veteran's service-connected pes planus. The claims are now before the Board once again. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a 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) (en banc). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has observed and is within the realm of his or her personal knowledge). 1. Entitlement to service connection for a right ankle condition The Veteran asserts that her right ankle condition arose during or as a result of her active service, including as secondary to her service-connected pes planus. The Veteran's service treatment records (STRs) reflect treatment for right ankle pain in January 1987, with pain noted as having begun in September 1986. The Veteran had been in a walking cast for 3 weeks. She was treated for right ankle pain or right ankle Achilles' tendonitis in January 1987, February 1987, May 1987, and July 1989. Pain in the Veteran's right hip and knee were noted in November 1986. Her VA treatment records reflect treatment for ankle pain and swelling as early as April 2001, but they are negative for medical opinions supporting the Veteran's claim. In March 2006, the Veteran filed a claim for service connection for foot, ankle, knee, leg, and lower back conditions. During the Veteran's May 2006 VA examination, the VA examiner noted significant tenderness of the lower legs, including pain that shoots to the leg, knee, hip, and lower back, which they stated may have been due to repeated strain from her pes planus. In an August 2014 statement in support of claim, the Veteran attributed all their claimed conditions to their pes planus, including the condition's effect on their gait and inability to exercise. During the Veteran's June 2017 VA examination for ankle conditions, the VA examiner noted diagnoses for right ankle lateral collateral ligament sprain in 1987 and right ankle tendonitis in 1987. In the accompanying June 2017 VA medical opinion, the examiner found the Veteran's right ankle condition to be less likely than not related to service. Their rationale stated that her STRs indicated left ankle tendinitis in September 1986 and right ankle tendonitis and pain in February 1987. A walking cast was noted with stretching. Achilles' tendinitis was most likely due to overuse based on the reports. There were no subsequent reports of ankle tendinitis or of strain in the service treatment records. The Veteran reported post-service bilateral ankle pain onset in 2006. The Veteran was medically obese. The examiner opined that her weight gain and post-service activities were a more likely cause of her right ankle condition. Consequently, they found that her right ankle condition was less likely than not related to her active service. In a February 2021 statement by a private podiatrist, the physician opined that given their observation of the Veteran's gait, they found potential lower extremity pathology affecting wear and injury on several joints. Consequently, they found that this warranted serious consideration of for service connection in regard to worsening the conditions. During the Veteran's March 2021 Board hearing, she testified that her ankles experienced chronic pain and swelling in her ankles due to her pes planus. The pain from her ankles radiated to her legs, knees, and hips. Additionally, her pes planus affected her gait, including her hip alignment. During the Veteran's June 2021 VA examination for ankle conditions, the examiner noted a diagnosis for bilateral ankle lateral collateral ligament sprain dating to 1986. In an accompanying medical opinion, the VA examiner opined that the Veteran's right ankle condition was less likely than not related to service. Their opinion was based on the lack of post-service treatment for ankle conditions until 2006, and the evidence of in-service treatment indicating that her ankle problems were acute in nature. The examiner also opined that it was less likely than not that her ankle condition was aggravated by her pes planus. They opined that the Veteran's persistent weight gain was a more likely reason for her increased ankle, knee, and hip complaints. The examiner noted that there were no knee complaints after 1986 and no hip complaints after 1986. Finally, her right ankle condition and pes planus were diagnosed at the same time, so her pes planus did not cause her ankle complaints. In a June 2021 statement in support of her claim, the Veteran stated that she did experience joint pain during service, but she did not report her problems and rarely went to sick call. In considering the Veteran's contentions, the Board notes that she is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Her lay contentions are thus of markedly lower probative value than, and are outweighed by, the VA examination opinions and medical evidence of record. The Board finds the preponderance of the evidence is against the Veteran's claim for service connection. First, the Board notes that the Veteran left active service in July 1990, her first documented treatment for ankle problems is in April 2001, and she did not file a claim for service connection until 2006. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered as evidence against a claim of entitlement to service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). While the May 2006 VA examination states that her shooting pains in her legs, knees, and hips may be due to her pes planus, the examiner does not actually state whether this was at least as likely as not. Similarly, the February 2021 podiatrist's opinion indicates that it was possible that her pes planus was affecting her joints and should be considered, but they did not provide an explicit etiology opinion. Conversely, the June 2017 and June 2021 VA examiners both opined that the Veteran's condition was less likely than not due to service. Additionally, the June 2021 VA examiner opined that her right ankle condition was less likely than not secondarily caused or aggravated by her pes planus. No medical opinion states that her condition is at least as likely as not due to service or secondary to her pes planus. While the Veteran has attributed her claimed conditions to her active service and pes planus, the Board finds that the VA examination reports and medical evidence of record carry more probative weight. Based on these facts, the Board finds the preponderance of the evidence is against finding that her claimed right ankle condition arose during or as a result of service or as secondary to her pes planus. Accordingly, the claim for service connection for a right ankle condition is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for a bilateral knee condition The Veteran asserts that her bilateral knee condition arose during or as a result of her active service, including as secondary to her service-connected pes planus. The Veteran's STRs reflect pain in the Veteran's right hip and knee in November 1986 and January 1987. Her VA treatment records reflect treatment for knee pain as early as May 2005, but they are negative for medical opinions supporting the Veteran's claim. In March 2006, the Veteran filed a claim for service connection for foot, ankle, knee, leg, and lower back conditions. During the Veteran's May 2006 VA examination, the VA examiner noted significant tenderness of the lower legs, including pain that shoots to the leg, knee, hip, and lower back, which they stated may have been due to repeated strain from her pes planus. In an August 2014 statement in support of claim, the Veteran attributed all their claimed conditions to their pes planus, including the condition's effect on their gait and inability to exercise. During the Veteran's June 2017 VA examination for knee and lower leg conditions, the VA examiner noted a diagnosis for knee strain in 2017. The Veteran reported her knee pain's onset was in 1987. In the accompanying June 2017 VA medical opinion, the examiner found the Veteran's bilateral knee condition to be less likely than not related to service. Their rationale stated that her bilateral knee condition was most likely due to age, use, deconditioning, and chronic obesity. There is an isolated record of a right knee strain in 1987 per the STRs, but no record of an ongoing, chronic or recurrent right knee condition. Based on this data, in the examiner's opinion, her right knee strain and degenerative changes were less likely than not related to service. In a February 2021 statement by a private podiatrist, the physician opined that given their observation of the Veteran's gait, they found potential lower extremity pathology affecting wear and injury on several joints. Consequently, they found that this warranted serious consideration for service connection in regard to worsening the conditions. During the Veteran's March 2021 Board hearing, she testified that her ankles experienced chronic pain and swelling in her ankles due to her pes planus. The pain from her ankles radiated to her legs, knees, and hips. Additionally, her pes planus affected her gait, including her hip alignment. During the Veteran's June 2021 VA examination for knee conditions, the examiner noted a diagnosis for bilateral knee strain dating to 2017. The Veteran reported that her knee pain began during service because of her physical duties. In an accompanying medical opinion, the VA examiner opined that the Veteran's bilateral knee condition was less likely than not related to service. Their opinion was based on her STRs indicating only acute knee problems during service, and the length in time between her in-service complaints and post-service treatment. The examiner also opined that it was less likely than not that her knee condition was aggravated by her pes planus. They opined that the Veteran's persistent weight gain was a more likely reason for her increased ankle, knee, and hip complaints. The examiner noted that there were no knee complaints after 1986 and no hip complaints after 1986. In a June 2021 statement in support of her claim, the Veteran stated that she did experience joint pain during service, but she did not report her problems and rarely went to sick call. In considering the Veteran's contentions, the Board notes that she is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, supra. Her lay contentions are thus of markedly lower probative value than, and are outweighed by, the VA examination opinions and medical evidence of record. The Board finds the preponderance of the evidence is against the Veteran's claim for service connection for a bilateral knee condition. First, the Board notes that the Veteran left active service in July 1990, her first documented treatment for knee problems is in May 2005, and she did not file a claim for service connection until 2006. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered as evidence against a claim of entitlement to service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). While the May 2006 VA examination states that her shooting pains in her legs, knees, and hips may be due to her pes planus, the examiner does not actually state whether this was at least as likely as not. Similarly, the February 2021 podiatrist's opinion indicates that it was possible that her pes planus was affecting her joints and should be considered, but they did not provide an explicit etiology opinion. Conversely, the June 2017 and June 2021 VA examiners both opined that the Veteran's condition was less likely than not due to service. Additionally, the June 2021 VA examiner opined that the Veteran's knee condition was less likely than not secondarily caused or aggravated by her pes planus. No medical opinion states that her condition is at least as likely as not due to service or secondary to her pes planus. While the Veteran has attributed her claimed conditions to her active service and pes planus, the Board finds that the VA examination reports and medical evidence of record carry more probative weight. Based on these facts, the Board finds that the preponderance of the evidence is against finding that her claimed bilateral knee condition arose during or as a result of service or as secondary to her pes planus. Accordingly, the claim for service connection for a bilateral knee condition is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for a bilateral hip condition The Veteran asserts that her bilateral hip condition arose during or as a result of her active service, including as secondary to her service-connected pes planus. The Veteran's STRs reflect pain in the Veteran's right hip and knee in November 1986 and January 1987. VA treatment records reflect treatment for hip pain as early as January 2001; however, they are negative for medical opinions supporting the Veteran's claim. In March 2006, the Veteran filed a claim for service connection for foot, ankle, knee, leg, and lower back conditions. During the Veteran's May 2006 VA examination, the VA examiner noted significant tenderness of the lower legs, including pain that shoots to the leg, knee, hip, and lower back, which they stated may have been due to repeated strain from her pes planus. In an August 2014 statement in support of claim, the Veteran attributed all their claimed conditions to their pes planus, including the condition's effect on their gait and inability to exercise. During the Veteran's June 2017 VA examination for hip and thigh conditions, the VA examiner diagnosed her with right hip strain. The Veteran reported the onset of her hip pain as being during service in 1988, due to the physical nature of her duties. In the accompanying June 2017 VA medical opinion, the examiner found the Veteran's bilateral hip condition to be less likely than not related to service. Their rationale stated that the Veteran reported a strain in her right hip 1988, but the examiner did not find any STR reports of a hip strain. There was a STR report of a recurrent or chronic hip condition appreciated. Both hips had diminished range of motion and strength most likely due to age, use, deconditioning, and chronic obesity. Based on this data, in the examiner's opinion, the right hip strain diagnosed during the examination was less likely than not related to the Veteran's active service. In a February 2021 statement by a private podiatrist, the physician opined that given their observation of the Veteran's gait, they found potential lower extremity pathology affecting wear and injury on several joints. Consequently, they found that this warranted serious consideration of for service connection in regard to worsening the conditions. During the Veteran's March 2021 Board hearing, she testified that her ankles experienced chronic pain and swelling in her ankles due to her pes planus. The pain from her ankles radiated to her legs, knees, and hips. Additionally, her pes planus affected her gait, including her hip alignment, and she had to wear braces to treat her conditions. During the Veteran's June 2021 VA examination for hip conditions, the examiner noted a diagnosis for bilateral hip strain dating to 1987. In an accompanying medical opinion, the VA examiner opined that the Veteran's bilateral hip condition was less likely than not related to service. Their opinion was based on the Veteran only having limited treatment for hip pain in her STRs, and no treatment for hip problems until many years after service. The examiner also opined that it was less likely than not that her hip condition was aggravated by her pes planus. They opined that the Veteran's persistent weight gain was a more likely reason for her increased ankle, knee, and hip complaints. The examiner noted that there were no knee complaints after 1986 and no hip complaints after 1986. In a June 2021 statement in support of her claim, the Veteran stated that she did experience joint pain during service, but she did not report her problems and rarely went to sick call. In considering the Veteran's contentions, the Board notes that she is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, supra. Her lay contentions are thus of markedly lower probative value than, and are outweighed by, the VA examination opinions and medical evidence of record. The Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a bilateral hip condition. First, the Board notes that the Veteran left active service in July 1990, her first documented treatment for hip problems is in January 2001, and she did not file a claim for service connection until 2006. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered as evidence against a claim of entitlement to service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). While the May 2006 VA examination states that her shooting pains in her legs, knees, and hips may be due to her pes planus, the examiner does not actually state whether this was at least as likely as not. Similarly, the February 2021 podiatrist's opinion indicates that it was possible that her pes planus was affecting her joints and should be considered, but they did not provide an explicit etiology opinion. Conversely, the June 2017 and June 2021 VA examiners both opined that the Veteran's condition was less likely than not due to service. Additionally, the June 2021 VA examiner opined that her knee condition was less likely than not secondarily caused or aggravated by her pes planus. No medical opinion states that her condition is at least as likely as not due to service or secondary to her pes planus. While the Veteran has attributed her claimed conditions to her active service and pes planus, the Board finds that the VA examination reports and medical evidence of record carry more probative weight. Based on these facts, the Board finds that the preponderance of the evidence is against finding that her claimed bilateral hip condition arose during or as a result of service or as secondary to her pes planus. Accordingly, the claim for service connection for a bilateral hip condition is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for a left ankle condition is remanded. In May 2021, the Board remanded the claims on appeal for new VA examinations to address direct service connection as well as whether any of the claimed conditions were caused or aggravated by the Veteran's service-connected pes planus. In the medical opinion accompanying the June 2021 VA examination for ankle condition, no specific language was directed toward the Veteran's left ankle condition. The Board therefore finds the June 2021 medical opinion inadequate for adjudication purposes. Accordingly, the Board finds that the RO did not substantially comply with its remand directives, and this claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for a low back condition is remanded. In May 2021, the Board remanded the claims on appeal for new VA examinations to address direct service connection as well as whether any of the claimed conditions were caused or aggravated by the Veteran's service-connected pes planus. In the medical opinion accompanying the June 2021 VA examination for back conditions, the examiner did not adequately address the Veteran's theories of secondary causation and aggravation, as no language specifically discussed the claimed back condition. The Board therefore finds the June 2021 medical opinion inadequate for adjudication purposes. Accordingly, the Board finds that the RO did not substantially comply with its remand directives, and this claim must be remanded again. Stegall v. West, supra. 3. Entitlement to service connection for a left shoulder condition is remanded. In May 2021, the Board remanded the claims on appeal for new VA examinations to address direct service connection as well as whether any of the claimed conditions were caused or aggravated by the Veteran's service-connected pes planus. In the medical opinion accompanying the June 2021 VA examination for shoulder conditions, no specific language was directed toward the Veteran's shoulder conditions. The Board therefore finds the June 2021 medical opinion inadequate for adjudication purposes. Accordingly, the Board finds that the RO did not substantially comply with its remand directives, and this claim must be remanded again. Stegall v. West, supra. 4. Entitlement to service connection for a right shoulder condition is remanded. In May 2021, the Board remanded the Veteran's claim for service connection for a bilateral shoulder condition. The August 2021 Supplemental Statement of the Case (SSOC) only listed service connection for a left shoulder condition. Accordingly, this issue must be remanded for a new SSOC that properly addresses the Veteran's claim for a right shoulder condition. See Stegall v. West, supra. The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion for the claimed left ankle, lower back, and bilateral shoulder conditions from the June 2021 VA examiner or, if unavailable, from another appropriate examiner. The examiner must review the claims file in conjunction with the examination. After reviewing the record, the examiner must first opine whether there exists a clinical diagnosis for the claimed conditions. If no clinical diagnosis is made, the examiner must ascertain whether the Veteran's pain associated with the claimed condition constitutes a functional impairment of earning capacity. If the Veteran's pain does not reach this threshold and thus should not be considered a disability, the examiner should so clarify. If either a clinical diagnosis or a functional impairment of earning capacity due to any claimed condition is ascertained, the examiner should next opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's claimed condition was: 1) incurred during or as a result of her service, or 2) caused or aggravated by her service-connected bilateral flatfoot disability. Any opinion expressed by the examiner MUST be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. 2. Issue an SSOC, specifically addressing the issue of entitlement to service connection for a right shoulder condition, as well as any other claims for which a denial is continued. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.