Citation Nr: 21069783 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-20 837 DATE: November 19, 2021 ORDER As new and material evidence has been received, the claim for entitlement to service connection for asthma is reopened; to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for a bilateral leg condition is reopened; to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for a bilateral ankle condition is reopened; to that extent only, the appeal is granted. As new and material evidence has not been received, the petition to reopen a claim for entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for asthma is denied. Entitlement to service connection for a bilateral leg condition is denied. Entitlement to service connection for a bilateral ankle disability is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of an abscess surgery is remanded. FINDINGS OF FACT 1. A September 2010 rating decision denied reopening the Veteran's claim for service connection for asthma. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. The evidence received since the final September 2010 rating decision is not cumulative or redundant of the evidence of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for asthma. 3. A September 2010 rating decision denied entitlement to service connection for a bilateral leg condition. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 4. The evidence received since the final September 2010 rating decision is not cumulative or redundant of the evidence of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a bilateral leg condition. 5. A September 2010 rating decision denied entitlement to service connection for a bilateral ankle condition. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 6. The evidence received since the final September 2010 rating decision is not cumulative or redundant of the evidence of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a bilateral ankle condition. 7. A September 2010 rating decision denied reopening the Veteran's claim for service connection for a bilateral knee disability. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 8. The evidence received since the final September 2010 rating decision does not relate to an unestablished fact, and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a bilateral knee disability. 9. The preponderance of the evidence is against a finding that the Veteran's asthma was aggravated beyond its normal progression by the Veteran's service. 10. The preponderance of the evidence is against finding that the Veteran's bilateral leg condition began during active service, or is otherwise related to an in-service injury or disease. 11. The preponderance of the evidence is against finding that the Veteran's bilateral ankle condition began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The September 2010 rating decision that denied reopening the claim for entitlement to service connection for asthma is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 2. New and material evidence has been received to reopen a claim for entitlement to service connection for asthma. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The September 2010 rating decision that denied service connection for a bilateral leg condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 4. New and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral leg condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The September 2010 rating decision that denied service connection for a bilateral ankle condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 6. New and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral ankle condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The September 2010 rating decision that denied reopening the claim for entitlement to service connection for a bilateral knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 8. New and material evidence has not been received to reopen a claim for entitlement to service connection for a bilateral knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 9. The criteria for service connection for asthma are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.306, 3.310. 10. The criteria for service connection for a bilateral leg condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 11. The criteria for service connection for a bilateral ankle condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to June 1966. The Veteran died during the pendency of the appeal in March 2017, and his surviving spouse has been substituted as the Appellant. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 and January 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. New and Material Evidence Rating actions are final, and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R.§ 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.§ 7105(b) and (c); 38 C.F.R.§§ 3.160(d), 20.200,20.201, 20.202, 20.302(a). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R.§ 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence is, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for asthma In a November 1981 rating decision, the RO denied service connection for bronchial asthma because "bronchial asthma preexisted service and was not aggravated by the Veteran's short period of military service." The Veteran did not file a timely appeal, and he also did not submit new and material evidence within one year. Therefore, the November 1981 rating decision is final. In a December 1999 rating decision, the RO denied reopening the claim for service connection for asthma. That decision is final. In a July 2001 rating decision, the RO denied reopening the claim for service connection for asthma. That decision is final. In a September 2010 rating decision, the RO denied reopening the claim for service connection for asthma as the Veteran did not submit any new and material evidence to establish that his bronchial asthma was permanently aggravated during his military service, or is in some other way related to the Veteran's military service. That decision is final. Since the last prior final denial, evidence has been associated with the record, to include medical treatment records, a February 2017 VA examination, and a June 2021 Board hearing testimony. This evidence relates to unestablished facts needed to establish service connection for asthma. Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran's claim for service connection are met. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral leg condition In a September 2010 rating decision, the RO denied service connection for a bilateral leg disability because there is no evidence the claimed condition exists. The Veteran did not file a timely appeal, and he also did not submit new and material evidence within one year. Therefore, the September 2010 rating decision is final. Since the last prior final denial, evidence has been associated with the record, to include lay statements from the Veteran. medical treatment records, testimony at the RO, and a June 2021 Board hearing testimony. A January 2017 VA treatment record shows that the Veteran has leg pain from peripheral vascular disease (PVD). This evidence relates to unestablished facts, a current disability, needed to establish service connection for asthma. Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran's claim for service connection are met. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral ankle disability In a September 2010 rating decision, the RO denied service connection for a bilateral ankle disability because there is no evidence the claimed condition exists. The Veteran did not file a timely appeal, and he also did not submit new and material evidence within one year. Therefore, the September 2010 rating decision is final. Since the last prior final denial, evidence has been associated with the record, to include lay statements from the Veteran. medical treatment records, testimony at the RO, and a June 2021 Board hearing testimony. A March 2012 VA treatment record shows that the Veteran had bilateral ankle swelling/edema. In addition, an October 2012 VA treatment record notes that the Veteran has right ankle osteoarthritis. This evidence relates to unestablished facts, a current disability, needed to establish service connection for asthma. Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran's claim for service connection are met. 4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral knee disability In a December 1999 rating decision, the RO denied service connection for a right and left knee disability on the basis that the claims were not well grounded. In May 2001, the Veteran was informed of a change in the law in November 2000, and that the Veterans Claims Assistance Act of 2000 (VCAA) resultantly required the RO to review claims that previously were denied as not "well-grounded." This reconsideration occurred in a July 2001 rating decision, which once again denied service connection for a right and left knee condition. The basis for the denial was that there was no evidence of a chronic disability that incurred in service; or evidence of a pre-existing condition that was permanently aggravated by service; or evidence of a presumptive disability that manifested to a compensable degree within the prescribed presumptive period; or evidence of a disability which was proximately due to a service-connected disability; or evidence linking a current disability with an injury incurred in or aggravated by military service. Subsequent to the July 2001 rating decision, additional medical records were received. The RO reconsidered the issues and denied service connection for a right and left knee condition in a December 2001 rating decision. The Veteran did not file a timely appeal of this determination and he also did not submit new and material evidence within one year. As such, the Board finds that the December 2001 rating decision is final. In a September 2010 rating decision, the RO denied reopening the claims for service connection for a bilateral knee condition because the Veteran did not submit new and material evidence to establish that the Veteran had a bilateral knee disability that developed during his military service, or is in some other way related to military service. That decision is final. Since the last prior final denial, evidence has been associated with the record, to include lay statements from the Veteran, medical treatment records, testimony at the RO, and a June 2021 Board hearing testimony. In a November 2014 statement in support of claim, the Veteran stated that he had problems with his weight, due to the military, which in return caused a condition with his bilateral knees, legs, and ankles. The Veteran's spouse testified that the rigorous training in service, while carrying heavy loads, began the progress and decline of the Veteran's bilateral knees. The Veteran's spouse stated that the Veteran started having problems with his knees shortly after service and prior to any post-service knee injury. The Board finds that although the Appellant's testimony is new, it is not material to establish a fact necessary for the claim for entitlement to service connection. The Appellant's testimony and medical evidence is cumulative and redundant to facts already established. The new evidence does not establish a fact necessary to link the Veteran's bilateral knee disabilities to his military service. Therefore, the Board finds that although this evidence is new, it is not material. In sum, the evidence received since the last prior final denial do not offer any new, probative information pertaining to the Veteran's claim, namely competent evidence linking his disability to his service. Accordingly, the Board concludes that new and material evidence has not been presented. Therefore, the claim may not be reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). For pre-existing conditions, service connection is warranted if the pre-existing disorder was aggravated by a veteran's active service. A pre-existing injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Green v. Derwinski, 1 Vet. App. 320 (1991). "Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). 5. Entitlement to service connection for asthma Prior to his death, the Veteran was seeking service connection for his asthma. In an April 2001 statement, the Veteran expressed that his enlistment papers showed that he had a touch of asthma when he joined the military. The Veteran stated that service aggravated and intensified his condition. The Veteran noted that prior to service, his asthma could be controlled with over-the-counter medication. The Veteran expressed that before he could finish basic training, he was hospitalized in Fort Jackson, South Carolina in April 1966. In addition, the Veteran was hospitalized a second time due to the strenuous physical training that triggered severe asthma attacks. The Veteran stated that his asthma attacks continued after service and that he has been hospitalized and has had various visits to the emergency room for these attacks since discharge. The Veteran noted that the over-the-counter medications that once worked, no longer had the strength or dosage required to control the Veteran's breathing. In November 2014, the Veteran expressed that his asthma was aggravated by the military due to exercise, to include going in the gas chamber as part of training. The Veteran's spouse testified that the Veteran had asthma as a child, but that he outgrew it. She stated that when the Veteran was drafted, during his training, the Veteran's asthma was further aggravated. The Veteran's spouse expressed that prior to service, the Veteran had no need for inhaled steroids or albuterol's. The Veteran's spouse stated that the change in climate placed a greater toll on the Veteran and his reactive airway disease. In an October 1981 buddy letter, A.T. stated that he knew the Veteran for 37 years and that the Veteran started having asthma attacks the end of 1966 to 1968, to his knowledge. A.T. stated that he had the same asthma condition and that he was able to administer injections to the Veteran. Service treatment records show that in January 1966, the Veteran underwent a pre-induction medical examination. On his Report of Medical History, the Veteran indicated that he did not have asthma but that he experiences shortness of breath. The physician found the Veteran qualified for induction. In April 1966, the Veteran had an episode of acute bronchitis with asthmatic component. In May 1966, the Veteran underwent another medical examination and was found not qualified for induction to the military due to having bronchial asthma. It was recommended that he appear before a Medical Board Evaluation. The Veteran was referred to the Medical Evaluation Board and the Medical Board proceedings dated June 1, 1966 found that Veteran's pre-existing bronchial asthma to be disqualifying for induction in military service. It was noted that the approximate date of origin was 1952 which existed prior to entry on active duty and was not aggravated by active duty. The Veteran's service treatment records noted that the Veteran had recurrent attacks of shortness of breath, wheezing, and a cough since the age 7, occurring six times a year. Since induction, asthmatic attacks have required hospitalization on two occasions. The Veteran's military personnel records show that the Veteran filed an application for correction of his military records. The Veteran requested that a correction to his DD Form 214 be made in order to show that he was discharged from the Army due to a physical disability. The Veteran stated that his life was under control until he was required to go into the gas chamber, endure stressful physical training, and sit or stand in the rain. The Veteran argued that his bronchial asthma was aggravated by military service and he believes that he should have been discharged based on a medical condition. The request was denied. In a September 2006 VA treatment record, the Veteran stated that he had "chronic bronchial asthma all his life" and is not sure why they ever let him in the military. In a statement dated June 2014, Dr. R.Ahuja stated that the Veteran had a diagnosis of asthma in service and that the Veteran is entitled to get benefits for the condition. The Veteran was afforded a VA examination in February 2017. The examiner opined that the Veteran's asthma, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner stated that the cause of asthma is uncertain, although it is commonly believed and a review of the medical literature supports, that the cause is likely a combination of factors including genetics, male gender before the age of 20, allergen exposure as a child, viral and bacterial exposure, obesity, and smoking. The examiner noted that the Veteran reported that he developed asthma in childhood "around the age of 8," and was treated that year. The Veteran expressed that he did not remember further treatment until his was drafted into the military, where the physical requirements of his training worsened his asthma and lead to his discharge. The examiner noted that the medical records from the Medical Board proceedings leading to the Veteran's discharge in June 1966 describe the Veteran's past medical history of asthma as: "recurrent attacks of shortness of breath, wheezing and cough since age 7, occurring, approximately 6 times a year. It was noted that since induction, asthmatic attacks have required hospitalizations on two occasions elsewhere." The Veteran's condition that day was noted as "mildly symptomatic." The examiner reported that the Medical Board proceedings determined that the Veteran's asthma was "not aggravated by active duty" and he was honorably discharged. The examiner noted that in an August 2006 treatment record, the Veteran stated, that he has had chronic bronchial asthma all his life. The examiner expressed that the Pulmonologist noted a 90-pack year smoking history. Thus, the examiner stated that, it seems more likely to believe the version of events recorded at the time they were occurring, during the Medical Board proceedings in 1966, rather than 50 years later. The examiner expressed that it is logical to believe that the Veteran did indeed have symptomatic asthma as noted in the 1966 medical proceedings to some degree of severity. The examiner stated that it is well known in the medical literature that many events can precipitate a flair of wheezing or asthma, or a flair can appear to occur without any specific event. The examiner stated that the well-known triggers for asthma flairs are allergies, upper respiratory illnesses, cold weather, smoking (passive or active) and exercise. The examiner expressed that medically speaking, a flair is not a permanent worsening of the condition of asthma, but a temporary event, if treated. The examiner expressed that the physical demands of military training may have had a role in the Veteran's asthma flairs during the 3 months he was on active duty. However, the examiner stated that if the physical demands of the military caused these flairs, the incidence or severity of the flair would lessen, if the asthma symptoms were solely due to the demands of military training. The examiner noted that he could not find any known incidence in the medical literature indicating that 3 months of increased exercise causes a permanent worsening of the condition of asthma. Therefore, the examiner opined that it is far more likely that another factor such as allergies or smoking played a greater role in the Veteran's continued asthma symptoms into his 20s and later. The examiner noted that subsequent to his asthma diagnosis, the Veteran was diagnosed with COPD/emphysema, a smoking related condition, which plays as large part in his pulmonary condition. Thus, given the Veteran's extensive smoking history, it seems less likely than not the Veteran's military service caused any aggravation of his condition of asthma. The examiner expressed that if the Veteran's asthma worsened later in life, the changes would be most attributable to continued smoking Following a review of the record, the Board concludes that the probative evidence of record shows that the Veteran's asthma clearly and unmistakably existed prior to service and was not aggravated by service. The Board finds that the VA examiner's opinion that the Veteran's asthma which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness to be more probative than the Veteran and the Appellant's assertions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, the Board finds the VA examiner's opinion to be more probative than Dr. Ahuja's opinion merely expressing that the Veteran should be granted benefits. The opinion of the VA examiner is highly probative because it was supported by detailed rationale and provided by a trained medical professional. The VA examiner identified and discussed the Veteran's contentions and theory concerning service and his asthma disability. In particular, the examiner discussed an alternative etiology for the increase in severity in the Veteran's asthma symptoms, to include smoking. Accordingly, the VA examiner's opinion is found to carry significant weight. The Board acknowledges the Veteran and the Appellant's assertions that that Veteran's asthma was aggravated by service and that the Veteran's asthma was under control prior to service. However, the extent the Veteran and the Appellant believe that the Veteran's asthma was aggravated by service, as a lay person, neither the Veteran nor his spouse have shown that they have specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and progression of asthma are matters requiring medical expertise to determine. Accordingly, the Veteran and the Appellant's opinions as to the diagnosis and progression of the Veteran's asthma are not competent medical evidence. The Board finds the opinions of the in-service medical board examiners and of the VA examiner to be significantly more probative than the lay assertions. Because the weight of the evidence shows that the pre-existing asthma was not aggravated by military service, service connection must be denied. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 6. Entitlement to service connection for a bilateral leg condition 7. Entitlement to service connection for a bilateral ankle condition Prior to his death, the Veteran was seeking service connection for his bilateral leg and ankle condition. In a November 2014 statement in support of claim, the Veteran stated that because of the military, he had weight problems which caused a condition with his knees, bilateral legs, and ankles. The Veteran's spouse testified that the Veteran's bilateral leg and ankle condition were due to the rigorous training in service, while carrying heavy loads. After carefully reviewing the record, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection. Here, the Veteran's service treatment records (STRs) are negative for complaints or abnormalities regarding the leg or ankle. The Board acknowledges that the Veteran was not provided VA examinations in support of his claims for a bilateral leg and bilateral ankle condition. However, in determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). Here, the Board notes that a May 1966 pre-induction examination does not show evidence of the claimed disabilities. The Veteran's service treatment records are silent with regard to complaints related to the claimed conditions. In addition, medical records show a lack of continuity of symptoms since service. Accordingly, there is no indication of a link between the claimed symptoms and service; and the Board finds that a VA examination is not necessary to determine the nature and etiology of these disabilities. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon. Additionally, the Board finds that the record contains no indication that the Veteran's bilateral leg and ankle condition are otherwise causally related to his active service or caused or aggravated by a service-connected disability. In that regard, no medical professional has suggested that the Veteran suffered from disabilities of the leg or ankle that are related to his military service, and neither the Veteran nor the Veteran's spouse and representative have presented, identified, or even alluded to the existence of any such medical evidence or opinion. The only positive evidence indicating that the Veteran's symptomatology developed in service are lay statements to that effect. In this regard, the Board acknowledges that the Veteran and the Veteran's spouse are competent to relate symptoms within the realm of personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the question of whether rigorous training in service contributed to the Veteran's bilateral leg and ankle condition is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins). Based on the foregoing, as the probative evidence is against the Veteran's claims for service connection for a bilateral leg and ankle condition, the benefit-of the-doubt rule is not for application. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. Accordingly, the Board finds that the elements of service connection are not met, and the Veteran's claims for a bilateral leg and ankle condition are denied. REASONS FOR REMAND 1. . Entitlement to compensation under 38 U.S.C. § 1151 for residuals of an abscess surgery The Veteran's spouse testified that the Veteran was admitted to the hospital on November 27, 2012 to December 5, 2012 for an abscess surgery. The Veteran's spouse stated that the Veteran acquired a staph infection after surgery while receiving care at the Richmond McGuire Virginia Medical Center. The Veteran's spouses testified that the Veteran's infection was a direct result of the care the Veteran received. The Veteran's spouse stated that the Veteran's infection could have been prevented with proper sterilization of equipment, sterile technique from the providers, and a timely postoperative follow up care. The Veteran's spouse stated that due to the Veteran's staph infection, the Veteran suffered recurrent and painful flare-ups and the Veteran's ability to ambulate and sit comfortably were taken away. It was stated that the staph infection symptoms and/or abscess could never be fought off or healed. The Veteran's spouse stated that due to the care the Veteran received from the VA, he was left physically and emotionally scarred and was denied freedom to live like he once lived. The Veteran spent a majority of his time at home in bed and in a wheelchair in attempt to avoid pain and embarrassment. It was stated that the staph infection never healed. A correspondence letter from Dr. R.Ahuja stated that the Veteran was admitted to the hospital from November 27, 2012 to December 5, 2012 for abscess. Dr. R. Ahuja stated that the material grew staph. The Veteran's VA treatment records note that during the surgery, the Veteran had four separate abscesses that were drained and packed. Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service connected. For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran's willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by VA, and (3) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. See 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in a veteran's additional disability or death. Merely showing that a veteran received care and has an additional disability does not establish cause. See 38 C.F.R. § 3.361 (c)(1). Whether the proximate cause of a claimant's additional disability or death was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures. 38 C.F.R. §§ 3.361 (d)(2), 17.32. The Board finds that a remand is necessary to obtain a VA opinion to address the Veteran's 1151 claim. The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records regarding the Veteran's abscess surgery. 2. Obtain a VA medical opinion related to the Veteran's 1151 compensation claim. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The expert is asked to review the entire claims file to include this REMAND and provide the following opinions: Did the Veteran have an additional disability after the November 2012 abscess surgery that he did not have prior to such treatment to include a staph infection? If so, please identify the additional disability. For any additional disability, is it at least as likely as not (50 percent or greater probability) that such additional disability was the result of the November 2012 surgery? If so, was the additional disability sustained during the November 2012 surgery due to the carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault on the part of VA, to include the lack of proper sterilization of equipment, sterile technique from the providers, and a non-timely postoperative follow up care, or was it an ordinary known risk of the surgery performed? (Continued on the next page) The examiner is hereby advised that the Appellant has contended that the Veteran's staph infection left the Veteran unable to ambulate and sit comfortably and that the Veteran was left physically and emotionally scarred. A complete rationale should accompany the opinions provided and should be based on examination findings, historical records, and medical principles. If the examiner is unable to provide an opinion he or she should explain why. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.