Citation Nr: 21021449 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-41 831 DATE: April 13, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a left ankle disability is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability did not originate in service or until years thereafter and is not otherwise etiologically related to service. 2. The Veteran’s left knee disability did not originate in service or until years thereafter and is not otherwise etiologically related to service. 3. The Veteran’s right ankle disability did not originate in service or until years thereafter and is not otherwise etiologically related to service. 4. The Veteran’s left ankle disability did not originate in service or until years thereafter and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2004 to July 2004. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges that the Veteran initially requested a hearing on her October 2014 VA Form 9. However, after rescheduling the hearing in May 2018 and August 2018, the Veteran ultimately withdrew her request in January 2019. The appeal was last remanded by the Board in February 2020 for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). 1. Entitlement to service connection for a right knee disability 2. Entitlement to service connection for a left knee disability In August 2013 correspondence the Veteran asserted that she did not have “one ounce of pain” in her legs prior to service but now dealt with pain on a daily basis since the in-service fractures in her femurs, knees, and ankles. The Veteran also reported that she had constant bruising around her knees, worse in the right knee. She explained that she had to sit instead of standing and walking. The Veteran also argued that the x-rays obtained by VA were inadequate because x-rays taken in 2004 were also unsuccessful at finding the alleged fractures. Instead, the Veteran asserted that a bone scan was necessary because a bone scan had previously discovered all her fractures six weeks after the initial x-rays failed to do so. She stated that the bone scan found six fractures one in each of her femurs, knees, and ankles. On her October 2014 VA Form 9, the Veteran stated that prior to being enlisted in the military she was never injured. She stated that she fell during training and informed her team that she could not run because of the injury. She reported that she was sent to sick bay almost every three days, where at times she had to use crutches. The Veteran reported that she was discharged because she could not perform her military occupational specialty. The Veteran contends that she still has problems with both knees. Factual Background On a March 2004 medical prescreen of medical history report, the Veteran indicated that she did not have foot pain, swollen, painful, or dislocated joints, arthritis, cracked bones or fractures, locking of the knee or other joint, nor giving way of the knee or other joint. The Veteran’s March 2004 enlistment examination indicated that evaluation of the Veteran’s lower extremities was normal. On her March 2004 report of medical history made at the time of her enlistment, the Veteran noted that she did not have knee trouble, impaired use of legs or feet, broken bones, swollen or painful joints, nor bone, joint, or other deformity. A June 2004 service treatment record notes that the Veteran’s chief complaints was hip, thigh, and knee pain for the past 14 days. The Veteran’s knee pain was noted as being bilateral. A July 2004 service treatment record notes that the Veteran’s chief complaints were regarding her back, hip, thigh, and knee for the past three to four weeks. The record notes that the Veteran complained of bilateral knee pain. The Veteran rated her pain at a 6 or 7. A July 2004 service treatment record noted that the Veteran had pain in her left hip, both knees, and right femur for the past four weeks but that two x-rays were normal. A bone scan was conducted which revealed mild uptake about the ankles and knees with the right worse than the left. The bone scan impression was that the Veteran had stress changes about the knees and ankles. Another July 2004 service treatment record which noted the Veteran’s bilateral femur complaints noted that the Veteran had a normal gait. Another record from the same visit noted that the Veteran did not have pain with walking. At the time of separation, the Veteran indicated on a signed statement of option form that she did not desire a separation medical examination. A determination was also made that the military would not require that the Veteran undergo a separation medical examination. On a July 2004 report of medical assessment, made at the time of separation, the Veteran noted that her overall health since her last medical assessment was the same but that since that assessment she had stress fractures in both femurs that caused her to miss duty for longer than three days. She further reported that she did not suffer any injury or illness on active duty for which she did not seek medical care. Lastly, she indicated that she did not intend to seek VA disability benefits. The Veteran was afforded a VA examination in December 2012. The December 2012 VA examiner’s report documents the Veteran’s reports that she fell during basic training in 2004. She reported that she was told that x-rays were negative. The December 2012 VA examiner’s report noted that prior bone imaging was conducted in July 2004 which revealed findings of mild uptake noted about the ankles and knees with the right worse than the left and an impression of stress changes about the knees and ankles. The VA examiner’s report noted that the Veteran had a diagnosis of stress changes about the knees diagnosed in 2004. The Veteran participated in physical therapy but then had no further evaluation for her knees. The Veteran reported a grinding sensation in her knees since leaving service which was greater in the right than the left with pain rated at 8/10. She reported that her pain was aggravated by walking and standing. The VA examiner noted that the Veteran had functional loss of the right knee, but not the left knee, due to pain on movement. At the time of the December 2012 VA examination the Veteran had been employed part-time for the past three years as a cashier at a fish market. The examiner determined that the Veteran’s bilateral knee condition impacted her ability to work because the Veteran worked as a cashier and her knee pain limited her ability to stand and she had to change positions. However, the examiner also noted that the Veteran did not have lost time from work. The examiner did not provide a nexus opinion because the examiner determined that the Veteran did not have bilateral knee fractures. The examiner explained that bilateral knee x-rays obtained in December 2012 were normal with no evidence of fractures. The Veteran was afforded VA examinations for her right knee and left knee disabilities in September 2020 with affiliated reports dated October 2020. The VA examiner noted that the Veteran had current diagnoses of right knee strain and left knee strain. The Veteran’s history of a July 2004 right femur fracture was noted, and the Veteran reported that the right femur was not properly diagnosed which led to her knee problems. She reported initial symptoms of pain, swelling, and pinching. Her bilateral knee disability was initially treated with Tylenol, naproxen, and physical therapy. An in-service bone scan was noted to have initially revealed stress changes in the knees and ankles. Current symptoms continued to include pain, swelling, and pinching and the Veteran currently took naproxen twice a day. The Veteran’s left knee and right knee disabilities limited her ability to squat, kneel, or stoop, and the Veteran used a box under her desk to elevate her legs. The September 2020 VA examiner determined that the claimed right and left knee conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that service treatment records did not sufficiently demonstrate that either a right or left knee strain was caused by military service and that the Veteran’s separation medical assessment was silent for complaints, symptoms, or diagnosis of any knee disability. The VA examiner also noted that continuity of symptomatology had not been established. Analysis At the outset, the Board notes that no treatment records have been affiliated with the Veteran’s record. Pursuant to the February 2020 Board remand, the VA requested in subsequent February 2020 correspondence that the Veteran provide copies of her private treatment records and that the Veteran complete an enclosed VA Form 21-4142 identifying her medical providers and the dates of treatment. The Veteran did not respond to this request. The Veteran also indicated on her August 2012 claim form that she did not receive treatment at a VA medical center. However, the Veteran has reported that she takes naproxen for her bilateral knee disability, which requires a prescription from a licensed medical provider. In pursuing a claim, the Veteran has a responsibility to cooperate in developing all facts pertinent to the claim, VA’s duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). A veteran must cooperate when she is asked for information that is essential in obtaining the evidence to substantiate his claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Here, the Board is left with an incomplete record upon which to adjudicate the Veteran’s claims due to her failure to cooperate in identifying relevant medical evidence. The Board acknowledges that the Veteran has current diagnoses of bilateral knee strains. See September 2020 VA examiner’s reports. The Veteran contends that she fractured both of her knees during service, however, there is simply no evidence to support that any fractures to the knees occurred. See August 2013 correspondence. Instead, the evidence has consistently shown that stress changes about her knees, not fractures, were found on a July 2004 in-service bone scan. The question becomes whether the Veteran’s current bilateral knee strains are etiologically related to the in-service knee findings. The Board affords low probative value to the December 2012 VA examiner’s report since the VA examiner only focused on whether the Veteran had any knee fracture and did not address other possible disabilities of either knee including whether pain constituted a disability. Since the VA examiner determined that the Veteran did not have a fracture in either knee, the VA examiner refused to provide an etiology opinion. However, the Board does afford probative value to the December 2012 x-rays findings that showed normal knees bilaterally. The Board also affords great probative value to the September 2020 VA examiner’s report which determined that the Veteran did have bilateral knee strains which were less likely than not etiologically related to service. The September 2020 VA examiner based his opinion on an in-person examination of the Veteran and review of available medical records, including the Veteran’s service treatment records with express consideration of the July 2004 bone scan. The September 2020 VA examiner’s report is the only nexus opinion of record and weighs against the Veteran’s claim. The Board acknowledges the Veteran’s argument that a new bone scan should be conducted because only a bone scan discovered her knee fractures. However, the Board emphasizes that the July 2004 bone scan only revealed stress changes, not fractures in the Veteran’s knees. Moreover, the Board finds that the December 2012 and September 2020 VA examiners who have greater training and experience than the Veteran in diagnosing and assessing a knee disability were competent to determine whether additional testing was necessary and declined to do so. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Lastly, with regard to the years-long evidentiary gap in this case between the 2004 in-service injury and the earliest manifestations of a right or left knee disability in 2012, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is simply no evidence of record that supports a nexus between the Veteran’s in-service stress changes to her knees and her current bilateral knee strains. In sum, the record does not contain probative lay or medical evidence sufficient to establish a medical nexus between the Veteran’s bilateral knee strains and her military service. The preponderance of the evidence is against the claim and service connection for cause of the Veteran’s left knee and right knee disabilities must be denied. 3. Entitlement to service connection for a right ankle disability 4. Entitlement to service connection for a left ankle disability In August 2013 correspondence the Veteran asserted that she did not have “one ounce of pain” in her legs prior to service but now dealt with pain on a daily basis since the in-service fractures in her femurs, knees, and ankles. The Veteran also argued that the x-rays obtained by VA were inadequate because x-rays taken in 2004 were also unsuccessful at finding the fractures. Instead, the Veteran asserted that a bone scan was necessary because a bone scan had previously discovered all r fractures six weeks after the initial x-rays failed to do so. She stated that the bone scan found six fractures one in each of her femurs, knees, and ankles On her October 2014 VA Form 9, the Veteran stated that prior to being enlisted in the military she was never injured. She stated that she fell during training and informed her team that she could not run because of the injury. She was sent to sick bay almost every three days, where at times she had to use crutches. The Veteran reported that she was discharged because she could not perform her military occupational specialty. The Veteran contends that she still has problems with both ankles. Factual Background On a March 2004 medical prescreen of medical history report, the Veteran indicated that she did not have foot pain, swollen, painful, or dislocated joints, arthritis, cracked bones or fractures, locking of the knee or other joint, nor giving way of the knee or other joint. The Veteran’s March 2004 enlistment examination indicated that evaluation of the Veteran’s lower extremities was normal. On her March 2004 report of medical history made at the time of her enlistment, the Veteran noted that she did not have impaired use of legs or feet, broken bones, swollen or painful joints, nor bone, joint, or other deformity. A July 2004 service treatment record noted that the Veteran had pain in her left hip, both knees, and right femur for the past four weeks but that two x-rays were normal. A bone scan was conducted which revealed mild uptake about the ankles and knees with the right worse than the left. The bone scan impression was that the Veteran had stress changes about the knees and ankles. Another July 2004 service treatment record which noted the Veteran’s bilateral femur complaints also noted that the Veteran had a normal gait. Another record from the same visit noted that the Veteran did not have pain with walking. At the time of separation, the Veteran indicated on a signed statement of option form that she did not desire a separation medical examination. A determination was also made that the military would not require a separation medical examination. On a July 2004 report of medical assessment, made at the time of separation, the Veteran noted that her overall health since her last medical assessment was the same but that since that assessment she had stress fractures in both femurs that caused her to miss duty for longer than three days. She further reported that she did not suffer any injury or illness on active duty for which she did not seek medical care. Lastly, she indicated that she did not intend to seek VA disability benefits. The Veteran was afforded a VA examination in December 2012. The December 2012 VA examiner’s report documented the Veteran’s history that she fell during basic training in 2004 which resulted in right thigh pain. X-rays were conducted followed by a bone scan. The bone scan revealed stress changes about both ankles. However, the Veteran never had ankle complaints. The Veteran had physical therapy but no further evaluation or treatment for her ankles. The examiner determined that the Veteran did not have any functional loss and/or functional impairment due to either ankle. At the time of the December 2012 VA examination the Veteran had been employed part-time for the past three years as a cashier at a fish market. The examiner determined that the Veteran’s ankle disability did not impact her ability to work. The examiner noted that imaging studies of the ankle had been obtained in December 2012 but that no abnormal findings were documented although the examiner also noted the 2004 bone scan results that showed stress changes about the knees and ankles. The December 2012 VA examiner did not provide a nexus opinion because the examiner concluded that the Veteran did not have bilateral ankle fractures. The examiner explained that December 2012 x-rays were normal and revealed no evidence of fractures. The Veteran was afforded VA examinations for her left ankle disability and her right ankle disability in September 2020 with affiliated reports dated October 2020. The examiner’s findings and opinion were identical for both the left ankle and the right ankle. The Veteran explained that her bilateral ankle disabilities began in July 2004 when her right femur fracture was not properly diagnosed. There was a stress fracture in her right femur based on a bone scan that was done 8 weeks after the injury. The bone scan also showed stress changes in the knees and ankles. The Veteran stated that the condition began with pain in her ankles. She was treated with over the counter pain medication, naproxen, and physical therapy. Her current treatment included taking naproxen twice a day. She reported that her condition limited her ability to squat, kneel, and stoop and that she had to have a box under her desk to elevate her legs. The VA examiner noted diagnoses of left ankle strain and right ankle strain. Functional ability was noted as limited by flare-ups due to pain. Occupational impairment was noted due to the Veteran’s difficulty with running or with walking more than 30 minutes due to pain and flare ups. The September 2020 VA examiner determined that each claimed ankle condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that service treatment records did not adequately demonstrate that either a left ankle strain nor a right ankle strain was caused by military service and that the Veteran’s separation medical assessment was silent for complaints, symptoms, or diagnosis of any ankle disability. The VA examiner also noted that continuity of symptomatology had not been established. Analysis At the outset, the Board notes that no treatment records have been affiliated with the Veteran’s record. Pursuant to the February 2020 Board remand, the VA requested in subsequent February 2020 correspondence that the Veteran provide copies of her private treatment records and that the Veteran complete an enclosed VA Form 21-4142 identifying her medical providers and the dates of treatment. The Veteran did not respond to this request. The Veteran also indicated on her August 2012 claim form that she did not receive treatment at a VA medical center. However, the Veteran has reported that she takes naproxen for her bilateral knee disability, which requires a prescription from a licensed medical provider. In pursuing a claim, the Veteran has a responsibility to cooperate in developing all facts pertinent to the claim, VA’s duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). A veteran must cooperate when she is asked for information that is essential in obtaining the evidence to substantiate his claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Here, the Board is left with an incomplete record upon which to adjudicate the Veteran’s claims due to her failure to cooperate in identifying relevant medical evidence. The Board acknowledges that the Veteran has current diagnoses of bilateral ankle strains. See September 2020 VA examiner’s reports. The Veteran contends that she fractured both of her ankles during service, however, there is simply no evidence to support that any fractures to the ankles occurred. See August 2013 correspondence. Instead, the evidence has consistently shown that stress changes about her ankles, not fractures, were found on a July 2004 in-service bone scan. The question becomes whether the Veteran’s current bilateral ankle strains are etiologically related to the in-service ankle findings. The Board affords low probative value to the December 2012 VA examiner’s report since the VA examiner only focused on whether the Veteran had any ankle fracture and did not address other possible disabilities of either ankle including whether pain constituted a disability. Since the VA examiner determined that the Veteran did not have a fracture in either ankle, the VA examiner refused to provide an etiology opinion. However, the Board does afford probative value to the December 2012 x-rays findings that showed normal ankles bilaterally. The Board also affords great probative value to the September 2020 VA examiner’s report which determined that the Veteran did have bilateral ankle strains which were less likely than not etiologically related to service. The September 2020 VA examiner based his opinion on an in-person examination of the Veteran and review of available medical records, including the Veteran’s service treatment records with express consideration of the July 2004 bone scan. The September 2020 VA examiner’s report is the only nexus opinion of record and weighs against the Veteran’s claim. The Board acknowledges the Veteran’s argument that a new bone scan should be conducted because only a bone scan discovered her ankle fractures. However, the Board emphasizes that the July 2004 bone scan only revealed stress changes, not fractures in the Veteran’s ankles. Moreover, the Board finds that the December 2012 and September 2020 VA examiners who have greater training and experience than the Veteran in diagnosing and assessing an ankle disability were competent to determine whether additional testing was necessary and declined to do so. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Lastly, with regard to the years-long evidentiary gap in this case between the 2004 in-service injury and the earliest manifestations of a right or left knee disability in 2012, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). (Continued on the next page) There is simply no evidence of record that supports a nexus between the Veteran’s in-service stress changes to her ankles and her current bilateral ankle strains. In sum, the record does not contain probative lay or medical evidence sufficient to establish a medical nexus between the Veteran’s bilateral ankle strains and her military service. The preponderance of the evidence is against the claim and service connection for cause of the Veteran’s left ankle and right ankle disabilities must be denied. SONJA S. AN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, 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.