Citation Nr: 21072156 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-05 554 DATE: December 2, 2021 ORDER Entitlement to service connection for left below-the-knee amputation is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's chronic septic joint infections of the Veteran's left ankle that resulted in the left below-the-knee amputation is related to any in-service event or injury. 2. The preponderance of the evidence is against finding that the left below-the-knee amputation is proximately due to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for left below-the-knee amputation are not met. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 2003 to December 2005. Most recently, the Board remanded the claim in February 2021 to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The case has since been returned to the Board for appellate review. 1. Service connection for left below the knee amputation The Veteran contends that his left below-the-knee amputation is due to service or to his service-connected disabilities. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-elements required to establish service connection are evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310 (a). To establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Although the Veteran essentially asserts that his left below-the-knee amputation is secondary to his service-connected bilateral plantar fasciitis and degenerative arthritis of the feet; left lower radiculopathy with sensory deficit associated with intervertebral disc syndrome of the thoracolumbar spine; and bilateral ankle sprain associated with plantar fasciitis and degenerative arthritis, the Board has also considered whether direct service connection is in order. Thus, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease; or is due to or aggravated by a service-connected disability. The Board concludes that, while the Veteran has a left below-the-knee amputation, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease, or is proximately due to or aggravated by a service-connected disability. The service treatment records (STRs) noted several complaints of left foot/ankle pain, as well as a blister/abrasion of the left foot. VA treatment records noted that the Veteran reported that he attempted suicide in December 2013. He jumped off of a bridge and broke both of his ankles. VA treatment records from 2014 and 2015 noted that the Veteran had chronic septic joint infections of his left ankle. In February 2015 the Veteran had a left below-the-knee amputation to prevent chronic infections. In March 2021 the Veteran underwent VA examinations for his left below-the-knee amputation. The Veteran reported onset of left ankle pain in 2004 when he walked into a pad. Records showed that the Veteran was diagnosed with bilateral patellofemoral pain syndrome by a VA examiner in February 2006. Also, records showed that the Veteran had suffered complex bilateral lower extremity fractures after a fall from height in a suicide attempt in December 2013. He underwent multiple reconstructive surgeries; however, his left lower extremity became infected. The Veteran developed significant and chronic arthrosis, swelling, pain, and erosive joint changes of his left lower extremity. In February 2015, the Veteran was diagnosed with left ankle neuropathic arthropathy, complex regional pain syndrome, chronic osteomyelitis, and nonunion of a left tibia fracture. Amputation was determined to be the best treatment option. It was noted that in February 2015, the Veteran underwent removal of deep implant from his left lower extremity and below-the-knee amputation for posttraumatic arthrosis with suspected infection of the left lower extremity. Current symptoms included left foot/ankle phantom pain. The examiner opined that the Veteran's chronic septic joint infections of the Veteran's left ankle that resulted in the left below-the-knee amputation is less likely than not related to any in-service event or injury. The examiner reviewed the record and explained that the Veteran's complex left lower extremity fractures developed after a fall from height in a suicide attempt in December 2013. He underwent multiple reconstructive surgeries; however, his left lower extremity became infected. Amputation was determined to be the best option for treatment. The evidence failed to establish a pattern of chronicity of the left leg condition beginning during service. Therefore, the medical records did not support that the Veteran's complete removal of deep implant from his left lower extremity and below-the-knee amputation for posttraumatic arthrosis with suspected infection of the left lower extremity. Also, the examiner opined that the Veteran's left below-the-knee amputation is less likely than not proximately due to or aggravated by a service-connected disability to include bilateral plantar fasciitis and degenerative arthritis of the feet; left lower radiculopathy with sensory deficit associated with intervertebral disc syndrome of the thoracolumbar spine; and bilateral ankle sprain associated with plantar fasciitis and degenerative arthritis. The examiner explained that the evidence failed to demonstrate any etiological relationship to the Veteran's service-connected ankles, feet, back, or radiculopathy. The precipitating event for the left lower extremity amputation was clearly the 2013 fall in a suicide attempt. Lastly, there was no evidence to support that an altered gait would aggravate his currently diagnosed condition, and he noted that all conditions had improved. There was no evidence to support aggravation. While the Veteran is competent to report having experienced symptoms of left leg pain since service, he does not have the training or credentials to provide a diagnosis in this case or to determine that these symptoms were manifestations of chronic septic joint infections of his left lower extremity. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The March 2021examiner's opinion is the most probative evidence in this case, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that there is no competent medical evidence of record to indicate that the Veteran's left below-the-knee amputation is related to his military service or to a service-connected disability. Further, the Board finds that the preponderance of the evidence is against a finding that the Veteran's chronic septic joint infections of his left ankle are proximately due to or aggravated by a service-connected disability. As the preponderance of the evidence is against the claim of entitlement to service connection for left below-the-knee amputation, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to service connection for bilateral hearing loss is remanded Unfortunately, a remand is required again in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure the Veteran is given every possible consideration. In March 2021 the Veteran underwent a VA examination for hearing loss. The VA audiogram revealed bilateral ear hearing loss per 38 C.F.R. § 3.385. The examiner diagnosed the Veteran with sensorineural hearing loss of the bilateral ears. The VA examiner opined that the Veteran's bilateral hearing loss was less likely not caused by or a result of military service as audiometric testing at the time of enlistment and discharge revealed normal hearing of the bilateral ears with no changes in hearing thresholds/significant thresholds shifts compared to the entrance examination. The rationale deficiency with the March 2021 VA audiological examination is that the examiner relied on the absence of hearing loss disability in service for the negative service connection opinion. The Board notes that the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for a hearing loss disability. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, service connection is warranted if all of the evidence, including that pertinent to service, reflects that current hearing loss is related to in-service noise exposure or anything else in service. Notably, the AOJ recently granted entitlement to service connection for tinnitus due to inservice acoustic trauma. The negative opinion is inadequate because the examiner appeared to have relied solely on the lack of hearing loss during service. Based on the above, the Board finds that a medical addendum should be provided. The matters are REMANDED for the following action: 1. Obtain a VA addendum opinion pertaining to the Veteran's bilateral hearing loss from the February 2015 examiner, or a similarly qualified individual. The examiner should review the record prior to providing an opinion. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hearing loss had its onset in active service, is otherwise caused by active service, or had its onset within one year of the Veteran's separation from active service. The examiner must address the Veteran's assertions of diminished hearing loss since service, to include the Veteran's in-service military occupational specialty and the corresponding level of noise exposure. A complete rationale must be provided. As indicated above, the examiner must review the record in conjunction with rendering the requested opinion; however, his or her attention is drawn to the following: (a.) The Veteran's numerous assertions of diminished hearing loss since service due to aircraft noises and loud equipment. In rendering the above opinion, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.