Citation Nr: 21075077 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-54 501 DATE: December 17, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a left ankle disability is denied. FINDINGS OF FACT 1. A chronic low back disorder was not shown in service or until several years thereafter; and, the Veteran's current low back disability is not otherwise shown to be related to an in-service injury or disease. 2. A chronic left ankle disorder was not shown in service or until several years thereafter; and, the Veteran's current left ankle disability is not otherwise shown to be related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to September 1980, with subsequent reserve service until September 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO or AOJ). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in February 2019. A transcript of the hearing is of record. This case was previously before the Board in January 2021 when it was remanded for additional development. The AOJ was directed to obtain the Veteran's private treatment records from Phoenix Physical Therapy, records from the Social Security Administration (SSA), and an addendum VA medical opinion regarding the Veteran's left ankle disorder. Records from the SSA and addendum opinion were both obtained. In February 2021 correspondence, the AOJ attempted to assist the Veteran in retrieving his private treatment records, to include from Phoenix Physical Therapy. However, the Veteran did not return the enclosed VA Form 21-4142, Release of Information Form or the VA Form 21-4142a, General Release for Medical Provider Information. Since the Veteran did not respond to these requests and has not identified any additional medical evidence in support of his claim, no further assistance on the part of VA is necessary. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1993). This case has since been returned to the Board for further appellate action. There has been substantial compliance with the terms of the Board remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 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 (a). Generally, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to Service Connection for a Low Back Disorder The Veteran contends that service connection is warranted for a low back disorder as it was incurred due to an injury during active service. Specifically, he contends that his low back disorder stems from multiple in-service motor vehicle accidents. He contends that he was treated in 1980 for a low back disorder, that he was told in 1983 that he had lumbar arthritis, and that he has continued to experience low back pain since service. See October 2015 Decision Review Officer hearing transcript, October 2016 VA Form 9 (Substantive Appeal), and February 2019 Board hearing transcript. The medical evidence includes diagnoses of degenerative arthritis and spinal stenosis. See August 2021 VA spine examination. Regarding an in-service disease or injury, service treatment records (STR) document an in-service diagnosis of possible muscle spasm sustained as a result of a jeep accident. The STR notes an X-ray of the Veteran's back was negative. See September 1979 STR. A June 1983 reserve clinical evaluation noted a spinal abnormality, "scoliosis." The first two elements of Shedden are met. The remaining question is whether there is an etiological relationship between the Veteran's currently diagnosed low back disorder and his active service. At the outset, the Board finds that notes that the STRs do not support the Veteran's report of a chronic low back disorder. The records document his report of back pain for a period of three days following an in-service jeep accident. However, the remaining records are silent with respect to complaints, treatment, or diagnosis of a chronic low back disorder. Moreover, and contrary to his more recent statements, he denied recurrent back pain in his June 1983 reserve report of medical history. He also made no reference to the existence of a low back problem when he filed his initial claim for disability compensation in 1980. Post-service treatment records also contain evidence weighing against the claim. There is also no competent medical evidence of a low back disorder after service until September 2000, which is 20 years after service. The report of a back disorder was made in conjunction with a Worker's Compensation claim for lower back strain. Records received from SSA include private treatment records noting the Veteran's report of back pain in 2007 following a motor vehicle accident in June 2007 wherein the Veteran was "severely jolted." See August 2007 private treatment record. Additionally, in support of his application for Social Security Disability Income (SSDI), the Veteran reported, in June 2009, that prior to his disability he was able to "walk, run, work, enjoy life, etc." He reported that he was issued a cane in 2006, and a cane and walker in March 2009. A July 2009 record indicates the nature of the Veteran's alleged disability to include right knee arthritis, tennis elbow, hypertension, and back pain. In a December 2009 private opinion letter, it was noted that the Veteran had suffered severe and significant injuries, to include intermittent back pain and an aggravation of an underlying right knee disorder, as a result of the June 2007 motor vehicle accident. The aforementioned records do not make reference to the Veteran's active service or to the existence of a chronic low back disorder prior to 2000. Such weighs against the Veteran's claim. Indeed, given the statements that he made to the SSA that essentially denied the existence of chronic back problems prior to 2007, which were made several years prior to his VA claim, his more recent report of chronic low back problems since service is not deemed credible. In support of his claim, the Veteran submitted an October 2013 opinion, from Dr. G.S., a private osteopathic physician and surgeon. This opinion links the Veteran's low back disorder to two motor vehicle accidents resulting in injury to the Veteran's lumbosacral spine in service. Dr. G.S. stated that it was his opinion that the in-service motor vehicle accidents were the inciting cause of the Veteran's low back disorder and concluded that the currently diagnosed back injury was caused by his military service. However, the probative value of this opinion is very limited. Dr. G.S. gives no rationale, reasoning, or evidence supporting the conclusion and the findings are not consistent with the contents of the Veteran's medical records. There is no discussion of the post-service multiple work-related injuries, to include the September 2000 work-related low back strain, or the back injury sustained in the June 2007 motor vehicle accident. The failure to discuss the contents of the post-service records renders Dr. G.S.'s opinion insufficient and inadequate for determining entitlement to service connection. Moreover, to the extent that the opinion relied on the Veteran's report of chronic low back disability since service, which has been deemed incredible, the opinion is likewise deemed incredible. The record does not contain any other medical opinions in favor of the claim. As for the medical evidence/opinions weighing against the claim, an April 2013 VA examiner noted the Veteran's report that he sustained work-related injuries in the 1980's, 1990's, and again in 2000 when his back went out on him while walking up steps. The examiner noted the Veteran had a normal gait with a presence of a low back brace given in 2000 by a Worker's Compensation treating physician. The examiner found that the Veteran's currently diagnosed degenerative disc disease of the lumbosacral spine was less likely than not related to the in-service self-limited low back muscle strain, and more likely than not related to multiple post-service work-related type injuries of the low back. A January 2020 VA spine examiner noted the Veteran's report that he injured his back as a result of two jeep accidents in 1979. The examiner opined that based on review of the claims file, including the Veteran's hearing testimony, lay reports, the opinion of Dr. G.S., and examination of Veteran, that the Veteran's low back disorder is less likely than not incurred in or caused by active service. Initially, the examiner stated that the in-service notation of "scoliosis" is not lumbar spine arthritis. The examiner explained that scoliosis is a curvature of the spine, not arthritis. The examiner stated that scoliosis is diagnosed by X-ray, not clinical examination. The examiner indicated that the neither the September 1979 nor the current X-ray showed scoliosis. Additionally, the examiner stated that he could find no documented evidence of lumbar spine arthritis, or a low back condition, during the Veteran's military service or within one year following separation. The examiner stated that other than the notation of "scoliosis," that was not confirmed by X-ray and does not meet an expert standard, no abnormality of the lumbosacral spine is documented in the STRs or on the June 1983 reserve examination. The examiner opined that the work-related injury in September 2000 was the more likely cause of his current condition. In his September 2021 medical opinion pertaining to the Veteran's left ankle disorder, the examiner noted that per the Veteran's SSA records, the Veteran's back condition had been attributed, by his physician, to the 2007 motor vehicle accident. A medical opinion must be read as a whole. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). In this regard, the April 2013 and January 2021 VA medical opinions, when read with the September 2021 VA examiner's findings, were accompanied by a well-reasoned and well-supported rationale and referenced specific evidence in the service and post-service record. The opinions were also based on an accurate review of the facts of the case and the Board finds that they are entitled to significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). There is no finding of arthritis until December 2011 when an X-ray showed degenerative changes of the lumbar spine. The Board cannot conclude that the Veteran manifested arthritis to a compensable degree within a year after his separation from active duty. Thus, service connection for arthritis on a presumptive basis as a chronic disease is not warranted. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.307 (a), 3.309 (a). Service connection is possible for certain chronic disabilities, such as arthritis, under 38 C.F.R. § 3.303 (b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay statements, such as those made by the Veteran, are considered competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran reports a history of low back pain since active duty service. There is no evidence documenting complaints, treatment, or diagnosis of a chronic low back condition until several decades after service. Moreover, for the reasons given above, the Board does not find that history to be credible. The first documented treatment for the Veteran's low back was August 2007 in connection with his claim with SSA, following his June 2007 motor vehicle accident. The Veteran believes his current low back disability is related to injuries during service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to report observable symptoms, such as the onset of back pain, but finds that his opinion as to the cause of the pain simply cannot be accepted as competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). In sum, the Board gives more probative weight to the VA examiners' opinions and finds that the most probative evidence establishes that a low back disorder, to include degenerative arthritis and spinal stenosis, was not present during active service and did not manifest to a compensable degree within one year of separation; continuity of symptomatology is not established; and there is no indication that the current disability is otherwise etiologically related to an established in-service injury or disease. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection for a low back disorder and it is denied. 38 U.S.C. § 5107 (b). 2. Entitlement to Service Connection for a Left Ankle Disorder The Veteran also contends that service connection is warranted for a left ankle disorder as it was incurred due to an injury during active service. Specifically, the Veteran contends that his left ankle disorder also stems from multiple in-service motor vehicle accidents. See October 2015 Decision Review Officer hearing transcript and October 2016 VA Form 9 (Substantive Appeal). The medical evidence includes a diagnosis of osteoarthritis of the bilateral ankles. See January 2020 VA examination. Regarding an in-service disease or injury, STRs document complaints of left foot pain, see March 1978 STR, and an in-service diagnosis of achilles tendonitis, see March 1979 STR. The first two elements of Shedden are met. The remaining question is whether there is an etiological relationship between the Veteran's currently diagnosed left ankle disorder and his active service. The Veteran's STRs do not support the Veteran's claim. While he reported pain in his "back" for a period of "three days" following an in-service jeep accident, see September 1979 STR, he did not report a left ankle condition. Moreover, he denied arthritis, rheumatism, or foot trouble in his June 1983 reserve report of medical history. In terms of the post-service records, there is no competent medical evidence of a left ankle disorder after service until August 2012, 30 years after service, when the Veteran complained of bilateral ankle arthralgia that caused him to limp. The August 2012 treatment record indicated lower extremity edema, noted on examination that may be related to rheumatoid arthritis. The Veteran was then referred for a rheumatology consultation. X-ray imaging of the Veteran's left ankle showed medial and lateral soft tissue swelling and irregularity of the medial malleolus. The report noted that although there is no evidence of acute fracture, "this raises the question of previous fracture of the medial malleolus." The impression was bilateral soft tissue swelling, bilateral osteoarthritis involving the talonavicular joints, and pes planus deformities. See August 2012 record. An August 2012 rheumatology consultation note indicated seropositive erosive rheumatoid arthritis with advanced disease of both elbows with active synovitis in the hands and ankles. A March 2013 rheumatology follow-up note documented left ankle pain. An April 2013 VA examiner noted the Veteran's in-service treatment for left foot pain in March 1978 that did not provide further description of the pain in the left foot, a record of a physical examination, or notation of a diagnosis. The examiner also noted the Veteran's in-service treatment for complaints of pain and swelling in the left ankle for one week. The examiner noted the trauma was "112 weeks prior." The examiner noted pain on palpation, moderate edema, and normal range of motion with pain and reported a diagnosis of achilles tendonitis. The examiner provided a negative etiology opinion based on a lack of asymmetry of the left versus the right ankle. The examiner remarked that it is less likely that the Veteran's achilles tendonitis has continued to the present time as the Veteran reported left ankle pain that was felt anteriorly, whereas the Achilles tendon is at the posterior ankle. The October 2013 private opinion, from Dr. G.S., linked the Veteran's left ankle disorder to injuries sustained in service, to include a jogging injury and two motor vehicle accidents. Dr. G.S. noted that it was after this accident that the Veteran first started to experience pain in his left Achilles tendon and left ankle. Additionally, Dr. G.S. stated that the X-ray findings of an old malleolar fracture and history of a severe car accident during the service, with no medical history of an ankle injury, substantiates a finding that the Veteran "had an occult injury to his ankle that was not diagnosed." However, Dr. G.S. assumes that the left ankle was fractured during the September 1979 in-service motor vehicle accident even though STRs show no left ankle diagnosis, treatment, or complaints in connection with the accident. Furthermore, the Veteran denied arthritis, rheumatism, or foot trouble in his June 1983 reserve report of medical history. The October 2013 private opinion also failed to address the Veteran's post-service treatment records indicating the Veteran first reported "a concern for arthritis" in April 2010, but did not report foot or ankle pain, swelling, or tenderness. It was not until August 2012, that the Veteran reported bilateral ankle arthralgia. Accordingly, the probative value of the October 2013 private opinion is very limited. A June 2015 rheumatology consultation note documents longstanding seropositive erosive (elbows and feet) rheumatoid arthritis. At that time, the Veteran reported that his joints "felt great." He reported occasional pain in the left ankle. He reported that he had a jeep accident in-service where he fractured his left ankle. An August 2016 rheumatology consultation note indicates continued low rheumatoid arthritis disease activity. At that time, the Veteran reported bilateral ankle pain consistent with underlying osteoarthritis, with right ankle pain greater than left ankle pain indicating possible right peroneal tendonitis. A September 2016 podiatry consultation record notes the Veteran's report of a remote history of fractures to the left foot "about 30 years ago." The Veteran reported the doctors did not perform surgery on him. On examination, there was mild edema at the level of the lateral ankle. The diagnosis was bilateral diffuse feet and ankle pain secondary to degenerative joint disease and posttraumatic arthritis. A March 2016 VA medical opinion was obtained to address conflicting medical evidence. The examiner provided a negative nexus opinion which was determined to be inadequate in a June 2019 Board Remand. The Veteran was subsequently afforded a new VA examination in January 2020 wherein the examiner noted a diagnosis of osteoarthritis of the bilateral ankles. The examiner noted the Veteran's report that he had injured his left ankle during physical training during active service. The Veteran reported that after a year of daily running, he developed a sharp pain in his left ankle. He recalled that he was given ointment and a pain killer. He endorsed continued left ankle pain throughout the remainder of his active duty service period. He said that he retired on SSA disability due to knee and back conditions in 2009 but was not sure whether he received SSA disability for his ankle. He reported that an X-ray in 2007 showed an old, healed fracture of the left ankle that he believed was related to the episode of sharp pain that occurred during active service. The examiner opined that after a review of the claims file, including the Veteran's hearing testimony, lay reports, the opinion of Dr. G.S., and examination of Veteran that the Veteran's diagnosed left ankle disorder is less likely than not incurred in or caused by active service. The examiner stated the Veteran was seen in-service in March 1979 for pain and swelling of his left ankle for one week, and that the diagnosis was left ankle achilles tendonitis. However, the examiner observed that subsequent STRs reported multiple subsequent visits for conditions without any mention of a left ankle condition, to include the September 1979 STR following the jeep accident. The examiner noted there was no mention of the left ankle in the history or examination. Regarding the X-ray findings suggesting a possible old left malleolus fraction, the examiner stated the etiology of the Veteran's abnormality in the left medial malleolus is not clear from the documentation in the file. The examiner noted the Veteran had a history of multiple falls/accidents recorded in the record that were subsequent to his active service. The examiner noted there is substantial available evidence that the Veteran's current left ankle condition did not start until after separation from service. The examiner indicated the Veteran's reserve examination in June 1983 noted a normal lower extremity examination. The examiner noted the Veteran had multiple medical visits beginning in 2007, and that there is no mention of any ankle pain. The examiner pointed to a July 2007 orthopedic evaluation for right knee injury wherein it was noted the Veteran denied ankle/foot pain. The examiner noted the Veteran was seen by rheumatology in April 2010 for pain in multiple joints without mention of the ankles. The examiner indicated the Veteran was diagnosed with rheumatoid arthritis. The examiner stated the Veteran mentioned ankle discomfort on his March 2013 follow-up rheumatology visit which was attributed to his rheumatoid arthritis. The examiner concluded that the Veteran's in-service left ankle symptoms were transient in nature and that the rheumatology findings more likely explained the Veteran's current left ankle disorder. The examiner remarked that rheumatoid arthritis is an autoimmune disease that is not caused by injury. The examiner found no evidence that Veteran had any manifestations of rheumatoid arthritis during military service, nor, on review of the record, did his rheumatology examiners. In a September 2021 addendum VA medical opinion, the examiner, after review of the Veteran's SSA records, noted that the Veteran had no left ankle condition in the period from 2006 through the date of SSA consideration ending with the Administrative Law Judge's Decision in April 2010. The examiner stated that SSA records indicated the Veteran reported knee, back, and elbow conditions, but did not report a left ankle condition. The examiner noted the Veteran's report that prior to his claimed work-related injuries, he was able to "walk, run, work, enjoy life, etc" without any notation indicating a limitation in running related to a left ankle condition. The examiner reiterated that the Veteran's bilateral ankle condition was diagnosed by rheumatology as due to rheumatoid arthritis. The examiner explained that he could find nothing on his additional review that indicated that the Veteran's claimed left ankle condition was a chronic condition starting in military service. The examiner stated the chronic disability of the left ankle or functional impairment of the left ankle is due to rheumatoid arthritis initially documented as affecting his ankles in August 2012 and reiterated in March 2013. The examiner stated the Veteran was treated intensively for his rheumatoid arthritis and was noted to be in remission by 2016 with minimal bilateral ankle symptoms, likely related to bilateral osteoarthritis associated with his rheumatoid arthritis. The examiner indicated that he could find no evidence to accept the proposition that the Veteran experienced a chronic left ankle disorder in service. The examiner stated the Veteran was seen during active service for left ankle complaints diagnosed as achilles tendonitis in March 1979. He was then seen for the jeep accident in September 1979, when he reported, "pain in the back for 3 days". The examiner stated there is no documentation of any left ankle complaints or findings related to the jeep accident. The Veteran's reserve examination in June 1983 noted a normal lower extremity condition. The examiner remarked that as noted in the January 2020 VA examination report, confirmed by a review of the recently posted SSA records, STRs, and subsequent records, there is no documentation of a chronic left ankle condition beginning in service. The September 2021 addendum VA medical opinion is accompanied by a well-reasoned and well-supported rationale and referenced specific evidence in the service and post-service record. The opinion is also based on an accurate review of the facts of the case and the Board finds that it is entitled to significant probative value. See Nieves-Rodriguez, 22 Vet. App. at 295. There is no finding of arthritis until August 2012 when an X-ray showed bilateral osteoarthritis involving the talonavicular joints. As such, the Board cannot conclude that the Veteran manifested arthritis to a compensable degree within a year after his separation from active duty. Thus, service connection for arthritis on a presumptive basis as a chronic disease is not warranted. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.307 (a), 3.309 (a). Service connection is possible for certain chronic disabilities, such as arthritis, under 38 C.F.R. § 3.303 (b) based on a continuity of symptomatology. See Walker, 708 F.3d at 1340. Lay statements, such as those made by the Veteran, are considered competent evidence when describing the features or symptoms of an injury or illness. Falzone, 8 Vet. App. at 405. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno, 6 Vet. App. at 469. As noted above, the Veteran first reported "a concern for arthritis" in April 2010. At that time, the Veteran reported right knee, back, elbow, hands, wrists, and shoulder pain. He did not report foot or ankle pain, swelling, or tenderness. In August 2012, the Veteran reported bilateral ankle arthralgia. Thus, the Board finds the Veteran's reported history of continuing symptoms since service unpersuasive as it is inconsistent with the other evidence of record. The Veteran believes his current left ankle disorder is related to injuries during service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr, 21 Vet. App. at 303; Grover, 12 Vet. App. at 112. The Board acknowledges that the Veteran is competent to report observable symptoms, such as the onset of left ankle pain, but finds that his opinion as to the cause of the pain simply cannot be accepted as competent evidence. Jandreau, 492 F.3d at 1377 n.4; Buchanan, 451 F.3d at 1336. In sum, the Board gives more probative weight to the September 2021 addendum VA medical opinion and finds that the most probative evidence establishes that a left ankle disorder, to include osteoarthritis, was not present during active service and did not manifest to a compensable degree within one year of separation; continuity of symptomatology is not established; and there is no indication that the current disability is otherwise etiologically related to an established in-service injury or disease. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection for a left ankle disorder and it is denied. 38 U.S.C. § 5107 (b). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.