Citation Nr: 21072476 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 08-34 087A DATE: December 3, 2021 ORDER Entitlement to service connection for a left ankle disability, as secondary to the service-connected status post total left knee arthoplasty and service-connected right knee osteoarthritis, is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his left ankle disability is proximately due to his service-connected left and right knee disabilities. CONCLUSION OF LAW The criteria for service connection for a left ankle disability, as secondary to the service-connected left and right knee disabilities, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1986 to January 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the current appeal, and specifically in February 2015, the Veteran testified at a videoconference hearing a Veterans Law Judge (VLJ), and a transcript of that proceeding has been associated with the claims file. In June 2017, the Veteran was notified that the VLJ who conducted his hearing was no longer employed at the Board and was offered the opportunity to appear for another hearing. As the Veteran did not respond within the requested timeframe, the Board presumes that he does not wish to appear for another hearing. This matter was previously before the Board in June 2015, October 2017, May 2020, December 2020, and July 2021, at which times it was remanded for further development. The Board observes that the prior attempts by the Board to obtain relevant information have not been fruitful, and the Board declines to spend any more resources trying to get pertinent information. Accordingly, the Board herein resolves all reasonable doubt in the Veteran's favor and is granting the full benefit sought. Therefore, to the extent there were any errors or a failure to substantially comply with the prior remand directives, the Board finds such to be harmless. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for a left ankle disability 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; or, any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310(a)-(b). Secondary service connection requires evidence of (1) a current disability, (2) a service-connected disability, and (3) a nexus, or link, between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at service entrance, or where clear and unmistakable (obvious or manifest) evidence shows (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as recorded in examination reports are considered noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When all evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the current appeal, the Veteran asserts that his left ankle disability is related to his service-connected left and right knee disabilities (defined as status post left knee arthroplasty and right knee osteoarthritis. He reports that, due to these disabilities, his gait has been altered and causes increased stress on his left ankle. He also reports that he has fallen many times over the years due to his service-connected knee disabilities and that these falls have caused injury to his left ankle on many occasions. See April 2012 VA Form 9 and February 2015 Board Hearing. His service treatment records (STRs) include X-ray findings of degenerative changes ("arthritis") of his left ankle and a left ankle sprain in February 1987 which was fully resolved in March 1987. His separation examination did not note any left ankle defect or disability. Medical treatment records indicate that the Veteran was first assessed to have a left ankle disability or symptoms thereof in January 2000 and reported chronic ankle pains throughout the 2000s through to the present. A diagnosis of osteoarthritis of his left ankle was given on December 2005 and August 2016 VA examinations, and additional VA and private treatment records note left ankle pain with limited motion. See, e.g., July 2010 VA Treatment Record. His service-connected left knee disability was noted during his service in December 1988, and service connection has been in place for the left knee since January 1993. Service connection for the right knee disability was granted in November 2008. The first and second elements of secondary service connection are satisfied. The remaining question is whether the evidence establishes that the Veteran's left ankle disability was caused or aggravated by his service-connected left and right knee disabilities. On this question, there is evidence both in favor and against the claim. A January 2000 private treatment record noted that the altered gait from the Veteran's knee disabilities was causing left ankle pain. At the same time as this complaint was noted, the private examiner recorded the Veteran's medical history and noted a left ankle fracture during his childhood. On the Veteran's December 1985 entrance examination, no left ankle defects were noted. Indeed, his lower extremities were observed to be normal at the time of the examination. While he reported a history of a prior left ankle injury during a private treatment visit, there is not clear and unmistakable evidence of an injury that existed prior to service given his normal entrance examination. A July 2020 VA examiner suggested that the Veteran's left ankle disability was likely the result of his childhood injury and was not aggravated by his military service, and a February 2021 VA examiner opined that the Veteran's left ankle disability clearly and unmistakably existed prior to service but failed to point to any specific evidence which underpinned that finding. An August 2021 VA examination opinion is similarly flawed, as the examiner failed to provide explanation for the provided opinion that the Veteran's left ankle disability clearly and unmistakably existed prior to his service. Based on the evidence of record, the Board finds that the Veteran is entitled to the presumption of soundness. While the Board cannot ignore or disregard the VA examiners' medical conclusions, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. See Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). As the Veteran was noted to be without any left ankle defects during his entrance examination and the VA examinations opining that a left ankle disability preexisted service and was not aggravated by service were without adequate supporting rationale and are of minimum probative value, the Veteran is considered to have been in sound condition when examined at entrance. 38 U.S.C. § 1111. During a December 2005 VA examination, the examiner recorded the Veteran's reports that he is experiencing increased pain to his left ankle due to his need to guard his service-connected left knee. The Veteran reported intermittent swelling and stiffness with ambulation, and a diagnosis of osteoarthritis was noted. The examiner indicated that they "[did] not believe" that the Veteran's left ankle arthritic changes are a direct result of his left knee injury but failed to provide a more definite opinion or provide rationale for the statement given. A May 2008 statement from a private treatment provider notes that the Veteran is chronically hampered by his service-connected left knee and that this disability has placed additional stress on the right lower extremity. While the statement did not address the Veteran's left ankle disability, such statement supports the Veteran's contention that his other jointsto include his left anklehave faced additional strain due to his service-connected left knee disability. The Veteran was afforded a VA examination in August 2016. The examiner included a diagnosis of osteoarthritis of the left ankle and failed to record or address the Veteran's reports of his left ankle disability being caused by his service-connected knee disabilities. The examiner opined that there was pain in the left ankle in the 1980s and that now the Veteran has arthritis, but that because his knees are "doing well," it is less likely than not that the Veteran's left ankle disability is related to his service or aggravated beyond its normal progression by his bilateral knee conditions. The examiner did not provide any supporting rationale for the provided opinion and failed to address the Veteran's contentions. An addendum opinion was obtained in December 2017, which the Board finds to be similarly flawed. The one sentence opinion indicated that it is not likely that the Veteran's left ankle condition is aggravated by his knees, as they were doing well when examined. Again, the examiner failed to address the Veteran's contentions or provide any rationale for the provided opinion. Another addendum opinion was obtained in February 2019. The examiner opined that, based on the length of time and lack of nexus, the Veteran's left ankle disability is not likely related to the Veteran's service-connected knee disabilities. The examiner provided no explanation in support of this opinion, nor did the examiner address the Veteran's contentions. In this regard, the Board finds the August 2016 VA examination and December 2017 and February 2019 addendum opinions wholly inadequate and accords them very little probative value. Another VA examination opinion was obtained in July 2020. The examiner opined it was less likely than not that the Veteran's left ankle disability was due to his military service, as the degenerative changes shown on X-rays taken in 1987 would be consistent with his remote ankle fracture in childhood. The examiner additionally opined that it is less likely than not that the Veteran's left ankle disability is proximately due to or the result of his service-connected knee disabilities. The examiner indicated that the Veteran's left ankle osteoarthritis was found prior to his issues with his left knee injury, but then noted that the Veteran first complained of ankle pain in January 2000 after injuring his left knee in December 1999. The Board notes that the Veteran actually injured his left knee in December 1989, but the examiner indicated that the injury occurred in December 1999, and the Veteran's in-service report of a left ankle injury was noted to be resolved. This portion of the examination report is inconsistent and appears to be based on an incorrect factual premise, which renders it of limited probative value. The examiner next opined that it is not at least as likely as not that the Veteran's left ankle disability was aggravated beyond its natural progression by his service-connected knee disabilities, as his left ankle arthritis was the result of his childhood ankle injury and that such was a natural progression of his childhood injury, age, and lifestyle and not related to his service-connected knee disabilities. The July 2020 VA examiner wholly failed to address the Veteran's contentions regarding his altered gait and pain to his left ankle caused by his service-connected knee disabilities in providing the requested opinions. Following the Board's December 2020 remand, an additional VA examination was obtained in February 2021. The examiner found that the Veteran's left ankle disability clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted that there was only evidence of temporary, not permanent, aggravation and that the Veteran's left ankle disability was proximately due to his prior trauma with fracture of the left ankle and the effect of aging and obesity. The February 2021 examination failed to address whether the Veteran's left ankle was aggravated by his service-connected knee disabilities or whether the altered gait and attempts to compensate for these knee injuries have resulted in ankle pain. Further, as the Board noted above, he was presumed sound at entrance, and there has not been clear and unmistakable evidence to the contrary, which renders the February 2021 examiner's opinion of limited probative value. Multiple addendum opinions were obtained in August 2021. None of these opinions adequately addressed the Veteran's left ankle disability or whether such was aggravated by his service-connected disabilities. The examiner recorded the Veteran's left ankle injury documented in service and the degenerative changes noted, but only stated that arthritis is a chronic and progressive condition. The examiner opined that the Veteran's left ankle disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. As rationale for this opinion, the examiner opined that the Veteran's degenerative changes found during his service in February 1987 are related to his prior left ankle fracture and that arthritis can develop after fracture and is consistent with the natural progression of the pre-existing fracture. The examiner indicated that there was no evidence of permanent aggravation beyond the normal progression identified but did not identify any specific findings which underpin this finding. Again, the Veteran was noted sound at entry and clear and unmistakable evidence to refute this presumption has not been presented. However, the Board finds that, even if the Veteran's left ankle disability did preexist his service, the evidence is not clear and unmistakable that his left ankle disability was not aggravated by service. Horn v. Shinseki, 25 Vet. App. 231, 243 (2012). In addressing whether the Veteran's left ankle disability was aggravated by any of his service-connected disabilities, the August 2021 opinions obtained include only a cursory mention of his service-connected disabilities at the end of each of the relevant opinions. The opinions obtained only state that the evidence does not support that his left ankle disability was aggravated by the relevant service-connected disability and gave no real consideration to whether his service-connected disabilities aggravated his left ankle disability. No consideration was given to his contentions that his service-connected knee disabilities, in particular, have resulted in an altered gait which has been productive of additional stress and pain to his left ankle. No discussion of his contentions regarding altered gait was provided in the opinions obtained and no real consideration was given as to whether his service-connected disabilities proximately caused or aggravated his left ankle disability. Adequate rationale was not provided for any of the opinions rendered and the examiner failed to explain why the Veteran's contentions were not addressed in providing the requested opinions. In contrast to the inconsistent and inadequate VA examinations, the Veteran has consistently contended that his service-connected knee disabilities have resulted in an altered gait and thus caused his left ankle disability. The Board finds the Veteran's contentions plausible, and his contentions are supported by the January 2000 private treatment record which notes that the altered gait from his knees was causing ankle pain and further supported by the May 2008 private medical statement, even as his left ankle was not directly addressed by that examiner. The VA examinations of record are helpful in confirming the existence of a current disability but are otherwise of limited probative value due to the failure to address or consider the Veteran's contentions. Indeed, after considering the Veteran's contentions and the positive private medical evidence of record, the Board finds that, despite the negative VA medical opinions, the evidence is at least in equipoise as to whether his left ankle disability was proximately due to, or the result of, his service-connected knee disabilities. Accordingly, the elements of secondary service connection have been met, and entitlement to service connection for a left ankle disability, as secondary to the service-connected left and right knee disabilities, is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.