Citation Nr: 21069947 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 18-10 467 DATE: November 22, 2021 ORDER Entitlement to service connection for left foot condition is granted. Entitlement to service connection for right knee condition is granted. Entitlement to service connection for left ankle condition is granted. REMANDED Entitlement to service connection for lumbar spine condition secondary to service- connected right foot and/or left knee condition is remanded. Entitlement to service connection for cervical spine condition secondary to service-connected right foot and/or left knee condition is remanded. Entitlement to a rating in excess of 10 percent for left knee strain is remanded. FINDINGS OF FACT 1. The Veteran's left foot condition is etiologically related to active service. 2. The Veteran's right knee condition is etiologically related to active service. 3. The Veteran's left ankle condition is etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for left foot condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right knee condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left ankle condition are 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 in the United States Army from May 2007 to September 2007. In February 2021, the Veteran testified at a Board hearing. The transcript is of record. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: '(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' the so-called "nexus" requirement." Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Entitlement to service connection for left foot condition The Board concludes that the Veteran has a current left foot condition and received in-service treatment for complaints related to the left foot. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Thus, the issue at hand is whether the current left foot condition is related to service. On this question there are opinions in favor of and against the claim. The Veteran underwent a VA examination in March 2011 for her bilateral feet conditions and reported sharp pain and cramping in her foot, which was exacerbated with physical activity and relieved by rest. The examiner concluded that there was not a current diagnosis of a left foot condition as there was no pathology to render a diagnosis. The examiner provided a positive nexus opinion stating that it is at least as likely as not that the Veteran's foot condition is secondary to conditions that existed while serving in the military as she was treated for joint pain, to include her foot in June 2007 and diagnosed with overuse syndrome. In May 2013 the Veteran attended another VA examination and received a diagnosis of hallux valgus, degenerative arthritis of the first MTP, and plantar fasciitis. The examiner opined that it is less likely than not that the Veteran's left foot conditions are related to military service as they would not be caused acutely. The examiner noted that there is no documentation of trauma to cause acquired pes planus so it is more likely congenital. Additionally, the examiner noted that she previously applied for and was denied service connection and there was no ongoing treatment or care for the left foot. Finally, the Veteran provided a statement dated July 2014 from her treating chiropractor, Dr. K.R. who opined that her left foot condition was likely caused from a chronic injury that caused imbalances in her gait and ambulation noting that those changes in gait and ambulation will cause weight bearing joints to degenerate at a faster rate. He stated that her original injuries she sustained that caused her changes in gait and ambulation in service would support that all her recent complaints are also likely caused by those originally accepted as injury from service. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). At the hearing, the Veteran testified that she had incredible pain in her foot and sought treatment in service and eventually her arches of her feet fell. She explained that the footwear provided in service was poorly made and did not provide proper support. She clarified that prior to service she did not have any issues with planter fasciitis, hallux valgus, or pes planus of the foot. Her pain began in-service and continued to worsen and radiate upward. The Board gives probative weight to the combined opinions of the March 2011 VA examiner and Dr. K.R. and the testimony of the Veteran. The medical opinions were conducted by health care professionals, who reviewed the record, conducted a physical examination, and provided an adequate rationale. Additionally, the Veteran provided competent testimony as to the presence of her symptoms from in-service to present. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the Board finds that the May 2013 opinion lacks probative value as the VA examiner improperly relied on the prior denial of service connection and lack of ongoing treatment to support the negative nexus opinion. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). Thus, the record does not contain an adequate medical opinion against the Veteran's claim and the probative evidence of record supports a finding service connection. Accordingly, the Board finds that entitlement to service connection for left foot condition is warranted and the claim is granted. 2. Entitlement to service connection for right knee condition and left ankle condition The Board concludes that the Veteran has a current right knee condition and left ankle condition and received in-service treatment for complaints related to both the knee and ankle. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Thus, the issue at hand is whether the current right knee condition and left ankle condition is related to service. Again, there are opinions in favor of and against the claim. The Veteran underwent a VA examination in March 2011 and reported weakness, stiffness, tenderness, and pain in the knee and weakness, stiffness, giving way, lack of endurance, locking, fatigability and pain in the ankle. The examiner found no diagnosis for either the knee or ankle but opined that it is at least as likely as not that her knee and ankle condition are secondary to conditions that existed while serving in the military. The examiner cited to medical records showing that the Veteran was treated for joint pain, to include the knees and ankles in June 2007 and diagnosed with overuse syndrome. In April 2013 the VA examiner concluded that the Veteran's right knee and left ankle condition were less likely than not incurred in or caused by service because there were no service treatments records attached which demonstrated a knee or ankle condition in-service. Another opinion was obtained in May 2013 and the VA examiner opined that the Veteran's right knee and left ankle condition are less likely related to service, to include the June 8, 2007 treatment as she did not have an ongoing chronic condition and was only seen acutely for temporary pains due to overuse. The Veteran provided a statement from her treating chiropractor, Dr. K.R. dated July 2014 who opined that her right knee and left ankle condition were likely caused from a chronic injury that caused imbalances in her gait and ambulation. He stated that her original injuries she sustained that caused her changes in gait and ambulation in service would support that all her recent complaints are also likely caused by those originally accepted as injury from service. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). At the hearing, the Veteran testified that she started having pain in her feet, which moved upwards to the ankles and knees in service. She stated that she had the same symptoms in her right knee and left ankle as she did in her already service-connected left knee and right ankle. The Veteran sought chiropractic care after service and was informed that she had an altered gait. The Board notes that the Veteran is competent to provide testimony as to the presence of her observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the opinions provided by the April and May 2013 VA examiners have no probative value as the service treatment records reflect treatment for the knees and ankles in service and the May examiner did not provide an adequate rationale. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Conversely, probative weight is given to the combined opinions of the March 2011 VA examiner and Dr. K.R. as these opinions were conducted by health care professionals, who reviewed the record, conducted a physical examination, and provided an adequate rationale. Id. Therefore, the probative evidence of record, the competent testimony from the Veteran and opinions of Dr. K.R. and the March 2011 examiner, support a finding of service connection. Accordingly, entitlement to service connection for right knee and left ankle condition is warranted and the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for lumbar spine condition, to include secondary to service-connected right foot and/or left knee condition The Veteran contends that her lumbar spine condition is secondary to her service-connected right foot and/or left knee condition. While the evidence of record includes several opinions, both for and against the claim, none are adequate for adjudication. As such, a remand is necessary to obtain a medical opinion. In April 2010, the Veteran's treating physician provided a medical opinion stating that her chronic lower back pain began after her feet and knee condition. He explained that while the exact cause of her pain is unknown, her feet and knee problems do affect her ambulation and gait, which will continue to cause and exacerbate her lower back pain. Similarly, treating chiropractor, Dr. K.R. also opined that her lumbar spine condition was likely caused from changes in gait and ambulation in service. While both physicians find that the service-connected conditions and changes in gait exacerbate the lower back, medical evidence of the baseline of the lumbar spine condition before aggravation was not provided. Within the regulation, VA has explicitly stated that a baseline level of severity must be provided. 38 C.F.R. § 3.310 (b). In April 2013 the VA examiner opined that it is less likely than not that the lumbar spine condition was proximately due to or the result of the Veteran's service-connected left knee condition as relating the two conditions would be based solely on speculation. The examiner noted that while the records show treatment for the back by the chiropractor this was during military service and the August 2008 examination stated that the pain was the result of military training; however, the evidence does not show that the low back condition is related to left knee strain. The Board finds that the VA medical opinion is inadequate as it is based on a factually incomplete premise as the examination report notes that the Veteran served from 2007 to 2010; thus, her chiropractic treatment of record would have incurred in service; however, the Veteran only served on active duty from May 2007 to September 2007. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The May 2013 VA examiner opined that the Veteran's lumbar spine condition is not secondary to her bilateral knee condition and bilateral foot condition as arthritis of the spine is an independent finding from the feet and knees and these conditions would not cause degeneration of the lumbar spine. The examiner noted that the Veteran basically complained of pains all her body almost immediately so there was not a cause and effect of one area causing the other to degenerate. The Board finds that the examiner failed to provide an adequate rationale. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 2. Entitlement to service connection for cervical spine condition secondary to service-connected right foot and/or left knee condition Again, the evidence of record includes several opinions, both for and against the claim; however, none are adequate for adjudication. Thus, a remand is necessary to obtain a medical opinion. The Veteran underwent a VA examination in March 2011. The examiner did not provide an opinion on secondary service connection for the cervical spine citing insufficient medical evidence and speculation. The May 2013 VA examiner opined that degenerative arthritis of the cervical spine is less likely than not secondary to right ankle strain as she had previously been denied service connection and the two areas are too remote to have a cause and effect on each other. The opinion is inadequate as the examiner failed to provide an adequate rationale and improperly relied on the Veteran's prior denial. Id. The Veteran provided a statement from her treating chiropractor, Dr. K.R. dated July 2014 who opined that her cervical spine condition was likely caused from a chronic injury that caused imbalances in her gait and ambulation noting that those changes in gait and ambulation will cause weight bearing joints to degenerate at a faster rate. While Dr. K.R. indicates that the service-connected conditions and changes in gait exacerbate the cervical spine, medical evidence of the baseline before aggravation was not provided. Within the regulation, VA has explicitly stated that a baseline level of severity must be provided. 38 C.F.R. § 3.310 (b). 3. Entitlement to a rating in excess of 10 percent for left knee strain The Veteran last underwent a VA examination in June 2018 for her left knee strain. At the hearing in February, the Veteran testified that her symptoms have increased since her last VA examination. Based on the contention that her symptoms worsened, a new VA examination is warranted to determine the current severity of the Veteran's left knee strain. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain updated VA and/or private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's lumbar spine condition and/or cervical spine condition is related to active service or is caused by or aggravated by military service. (b.) Is it at least as likely as not (i.e., probability of 50 percent or higher) that the lumbar spine and/or cervical spine is proximately due to or the result of the Veteran's service-connected knee or ankle conditions? (b.) If the answer to (a) is negative, is it at least as likely as not that the lumbar spine and/or cervical spine is aggravated (i.e., permanently, or temporarily worsened) by the knee or ankle condition? (c.) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report her symptoms and treatment history. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Schedule the Veteran for a VA medical examination to determine the current severity of her service-connected left knee. The electronic claims file must be reviewed in conjunction with the examination. All necessary testing must be conducted. In particular, the examination must include tests of all applicable ranges of motion in active motion, passive motion, weight-bearing, and non- weight-bearing in both knees. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. The examiner must also provide an assessment of the Veteran's functional limitations due to her left knee strain as it may relate to her ability to function in a work setting and to perform work tasks. However, the examiner should refrain from commenting on the Veteran's employability. A complete rationale for all medical opinions is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Finally, readjudicate the appeal. If the benefits sought on appeal remains denied, issue a supplemental statement of the case, and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.