Citation Nr: 21021577 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-27 181A DATE: April 13, 2021 ORDER Entitlement to service connection for a left ankle disability other than residuals of a stress fracture is denied. Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The most probative evidence establishes that the Veteran did not have a left ankle disability which was incurred in or was otherwise causally related to her active duty, manifested to a compensable degree within one year thereof, or causally related to any period of active service. 2. The most probative evidence establishes that the Veteran’s current left knee disability was not noted in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; the disability is not otherwise etiologically related to an in-service injury or disease, and such was not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1990 to March 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2011, June 2012, and December 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, inter alia, denied service connection for a left ankle disability and anxiety and depression because the evidence submitted was not new and material, denied service connection for a left knee disability, and denied service connection for a mood disorder not otherwise specified and personality disorder (claimed as PTSD), respectively. In December 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in July 2019. At that time, the Board, inter alia, found that new and material evidence had been received sufficient to reopen the claims for service connection for a left ankle disability and anxiety and depression. The Board remanded the claims for a left ankle disability, an acquired psychiatric disability, to include PTSD, and a left knee disability for further evidentiary development. While the matter was in remand status, in an August 2020 rating decision, the RO granted service connection for residuals of a left ankle stress fracture and assigned a noncompensable rating, effective May 23, 2011. As the award of service connection for residuals of a left ankle stress fracture has not resolved the Veteran’s appeal in full, the issue of entitlement to service connection for a left ankle disability other than residuals of a left ankle stress fracture is properly before the Board. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In addition, certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) 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, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a left ankle disability other than residuals of a stress fracture is denied. The Veteran contends that her current left ankle disability is related to her active service. Service treatment records (STRs) showed that the Veteran was seen in June 1990 with complaints of shin pain and left ankle numbness. The assessment was overuse. In July 1990, she complained of recurrent ankle pain. The assessment was rule out stress fracture. The Veteran again complained of left ankle pain in February and March 1991. It was noted that a bone scan had been positive for a stress fracture. At a VA examination conducted in February 2009, the Veteran reported a history of a left ankle injury in service and stated that she experienced progressively worsening pain since that time. X-ray studies showed prominent plantar spurring of the calcaneus. The examiner concluded that although the Veteran had a documented in-service left ankle injury, there was no relationship to the current disability. The examiner noted that X-ray studies and examination had shown a calcaneal spur and that such heel spurs could be painful, but that the condition was not trauma related. He concluded that it was less likely than not caused by service. VA treatment records noted that the Veteran underwent a magnetic resonance imaging (MRI) of the left ankle in August 2018. The MRI revealed nonspecific mild patchy subchondral bone marrow edema of the navicular and posterior talus which may reflect degenerative stress reaction, nonspecific subtle patchy subcortical bone marrow edema at the interface of the posterior talar remnant and the large os trigonum which may reflect stress reaction, small talar neck T2 hyperintense intermedullary focus corresponding to subtle popcorn calcification conventional radiographs and consistent with a low-grade chondroid lesion such as an enchondroma, mild posterior tibialis tenosynovitis, low-lying peroneus brevis muscle within the retromalleolar groove, chronic lateral ankle ligamentous complex sprain, findings of Baxter’s neuropathy, and mild Gruberi bursitis versus ganglion cyst along the lateral root of the inferior extensor retinaculum. The assessment was left ankle tenosynovitis. See August 2018 MRI Impression Report. At the December 2018 Board hearing, referenced above, the Veteran testified that she fractured her left ankle during active duty in May or June 1990. She testified that she currently experienced daily pain in her left ankle, which sometimes kept her awake. She also testified that the pain affected her ability to walk and that she walked with the assistance of a cane. See December 2018 Transcript of Hearing, pages 18-19. The Veteran was afforded a VA examination in December 2019. The examiner noted a diagnosis of left ankle posterior tibial tendonitis. The Veteran reported that she injured her ankle during active duty and that she currently experienced left ankle pain both in use and at rest. She also reported that her ankle pain affected her quality of sleep. After examination of the Veteran and review of the claims file, the examiner rendered a negative etiological opinion regarding the Veteran’s left ankle. The examiner opined, STRs indicate a stress fracture of the left ankle in 7/1990. However stress fractures and tendonitis are two unique and unrelated entities. Stress fractures are fractures, often of weight bearing lower limbs, caused by overuse/repet[i]tive force. Typical recovery time is 6-8 weeks. Veteran’s current diagnosis is posterior tibial tendonitis of the left ankle, an inflammation of the posterior tibial tendon. Risk factors of this include obesity, overuse, female gender and age over 40. The veteran does fit several of these risk factors currently being a female over 40 with a BMI of 42. Diagnosis of this condition appears to be in 2018, with previous podiatry notes in 2012-2015 being silent for a left ankle complaint or diagnosis. Taking the entirety of available information into account the veteran’s current ankle condition is less likely as not due to or a result of AD service or any injury incurred/diagnosis rendered during AD period. Left ankle stress fracture incurred during AD period would be past its typical recovery period and current diagnosis was not made until 27 years after separation. After a review of the evidence, the Board finds that service connection is not warranted for a left ankle disability. With regard to the first element of a service connection claim, the evidence shows that the Veteran currently has a left ankle disability. VA treatment records noted a diagnosis of left ankle tenosynovitis; the December 2019 VA examination noted a diagnosis of left ankle posterior tibial tendonitis. In addressing the second element, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran experienced a left ankle injury during active duty. As noted above, the evidence shows that the Veteran went to sick bay on multiple occasions with complaints of shin pain, left ankle numbness, and recurrent left ankle pain. The evidence also shows that a bone scan had been positive for a stress fracture. With respect to the third element, the nexus requirement, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s currently-diagnosed left ankle disability is causally related to active service. The Board assigns great probative weight to the December 2019 VA examination, as the examiner reviewed the Veteran’s claims file in its entirety. After considering the record, the examiner concluded that the Veteran’s diagnosed left ankle disability was not causally related to active duty. The examiner provided a reasoned conclusion and clear rationale to support her determination that the Veteran’s left ankle disability was not causally related to service, explaining that the nature of the pathology of the Veteran’s disability was consistent with aging and being overweight. The Board also finds that the February 2009 VA examination is entitled to some probative weight, although the only disability diagnosed at that time was a left calcaneal spur. However, the two VA medical opinions do not contradict one another. The Board assigns less probative weight to the Veteran’s statements indicating that her current left ankle disability is related to her active service. Although the Veteran is competent to describe her in-service symptomatology and post-service symptoms, she is not competent to provide a medical diagnosis or etiological opinion because that would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have had medical training or skills. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Questions of competency notwithstanding, the Board assigns more probative weight to the findings of the December 2019 VA examiner, given her clinical expertise and the detailed rationale she provided. Based on the foregoing, as the preponderance of the evidence is against the Veteran’s claim of service connection for a left ankle disability, the benefit-of the-doubt rule is not for application. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. Accordingly, the Board finds that the elements of service connection are not met, and the Veteran’s claim is denied. 2. Entitlement to service connection for a left knee disability is denied. The Veteran contends that her left knee disability is either secondary to her left ankle disability or to her service-connected lumbar spine disability. See VA Form 21-0820 dated in May 2011. In pertinent part, the Veteran’s STRs contain complaints of right knee pain in March 1990. However, STRs are negative for complaints, observations, or treatment regarding left knee symptomatology. VA treatment records noted a history of chronic left knee pain. See 2015-2020 VAMC records. The Veteran was afforded a VA examination in June 2015. The examiner noted a 2012 diagnosis of left knee joint osteoarthritis. The Veteran reported pain for “quite some time” in her left knee with worsening over the past 8 years. She currently complained of localized pain to the subpatellar area, which was worse with activity. After examination of the Veteran and review of the claims file, the examiner determined that the Veteran’s left knee disability was not caused or aggravated by her service-connected lumbar spine disability. The examiner opined, The degree of degenerative change noted on xray is minimal[,] could be age or weight related. There is no evidence on examination of significantly altered gait/mechanics of locomotion that would contribute to degeneration of weight bearing joints. Unable to locate evidence in the medical record of worsening of knee condition subsequent to back condition. At the December 2018 Board hearing, noted above, the Veteran testified that her left knee pain may be related to her service-connected back disability. She indicated that no doctor had been able to explain why she was experiencing knee pain. She also testified that she received a brace from the VA for her left knee. See December 2018 Transcript of Hearing, page 22. After a review of the evidence, the Board finds that service connection is not warranted for a left knee disability. As set forth above, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). With regard to current disability, the Board finds sufficient clinical evidence to establish that the Veteran currently has a left knee disability. The June 2015 VA examination, noted above, indicated a diagnosis of left knee joint osteoarthritis. In addition, the record reflects that service connection is in effect for a lumbar spine disability. See e.g. November 2011 rating decision granting service connection for a lumbar spine disability. The remaining issue, therefore, is whether the Veteran’s left knee disability was caused or aggravated by her service-connected lumbar spine disability. In this case, the Board finds that the probative evidence is against a finding that the Veteran’s left knee disability was caused or aggravated by her service-connected lumbar spine disability. In that regard, the Board assigns great probative weight to the June 2015 VA examination, as the examiner rendered her opinion after examination of the Veteran and thorough review of the claims file. After examining the Veteran and considering the record, the examiner concluded that the Veteran’s left knee disability was not caused or aggravated by her service-connected lumbar spine disability. The examiner provided a reasoned conclusion and clear rationale to support her determination that the Veteran’s left knee disability was not secondarily related to or aggravated by her lumbar spine disability, explaining that the nature of the current left knee pathology indicated that it was age or weight related and not due to an altered gait. There is no medical opinion evidence to the contrary. The Board assigns less probative weight to the Veteran’s statements indicating that her left knee disability was caused or aggravated by her service-connected lumbar spine disability. Although the Veteran is competent to describe symptoms, she is not competent to determine the cause of her symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have had medical training or skills. See Jandreau, 492 F.3d 1372, 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). Questions of competency notwithstanding, the Board assigns more probative weight to the findings of the June 2015 VA examiner, given her clinical expertise and the rationale she provided. The Board also notes the Veteran’s contention that her left knee disability is secondary to her left ankle disability. However, there is no indication in the record, besides the Veteran’s general contention, that her left knee disability is secondarily caused or aggravated by her left ankle disability. Notably, as indicated above, the June 2015 VA examiner determined that the Veteran’s current left knee pathology was age or weight related. Therefore, the evidence of record is insufficient to trigger the VA’s duty to provide an examination or opinion as to the Veteran’s claim of a left knee disability as secondary to her left ankle disability. McClendon v. Nicholson, 20 Vet. App. 79, 81-6 (2006). Furthermore, the Board has denied service connection for a left ankle disability in the instant decision. Regarding the theory of direct service connection, the Board notes that the record contains no indication that the Veteran’s current left knee disability had its inception during active service or is otherwise causally related to an in-service disease or injury, and the Veteran has not contended otherwise. As such, the Board finds that service connection on a direct basis is not warranted. In reaching this decision, the Board has considered the fact that the Veteran has been diagnosed as having arthritis, an enumerated disease under 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the disability was not shown as chronic in service, did not manifest to a compensable degree within the presumptive period, and was not noted in service with attributable continuity of symptomatology. As set forth above, the Veteran’s service treatment records contain no indication of complaints, observations, or treatment regarding a left knee disability. The post-service clinical record on appeal shows that the Veteran was not diagnosed as having arthritis for more than two decades after her separation from active service and well outside the applicable presumptive period. Based on the foregoing, as the probative evidence is against the Veteran’s claim of service connection for a left knee disability, the benefit-of the-doubt rule is not for application. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. Accordingly, the Board finds that the elements of service connection are not met, and the Veteran’s claim for a left knee disability is denied. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. The Veteran contends that she has an acquired psychiatric disability, to include PTSD, related to in-service harassment and/or sexual assault. See e.g. Veteran’s statement dated in March 2019. Service connection may not be granted for congenital or developmental defects, including personality disorders. 38 C.F.R. §§ 3.303(c), 4.9. See also 61 Fed. Reg. 52,695-98 (Oct. 8, 1996) (regulatory history providing that personality disorders are not diseases or injuries for VA compensation purposes). However, “disability resulting from a mental disorder that is superimposed upon a personality disorder may be service-connected.” 38 C.F.R. § 4.127. Congenital or developmental defects are not diseases or injuries within the meaning of VA law and regulation. However, VA’s General Counsel has held that a congenital defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990). The presumption of soundness, however, does not apply when a condition is a congenital or developmental defect, as service connection cannot be granted for such disorder. In pertinent part, the Veteran’s clinical medical records contain multiple psychiatric diagnoses, including a personality disorder, PTSD, bipolar disorder, depressive disorder, history of substance abuse, dysthymic disorder, addictive disorder, and mood disorder not otherwise specified. A July 2014 psychological evaluation conducted by a private psychologist, Dr. S.F., noted a diagnosis of PTSD due to military sexual trauma. See July 2014 Comprehensive Psychological Evaluation received October 2014. In support of her claim, the Veteran submitted a Disability Benefits Questionnaire (DBQ) completed by a VA psychologist in December 2018. The psychologist noted diagnoses of PTSD and bipolar disorder. The psychologist did not provide an etiological opinion regarding the Veteran’s PTSD. Regarding the Veteran’s bipolar disorder, the psychologist indicated that “stress from MST may have triggered Bipolar Disorder.” See December 2018 DBQ received January 2019. The Veteran was most recently afforded a VA examination in December 2019. The Veteran reported experiencing several stressors during active duty, to include receiving sexually vulgar letters from her sergeant, being sexually assaulted, and experiencing sexual harassment. The examiner determined that although the Veteran’s reported stressors were sufficient to meet criterion A, none of the other criteria for a diagnosis of PTSD under DSM-5 were met. The examiner noted diagnoses of unspecified personality and anxiety disorders and found that the Veteran’s anxiety disorder was not causally related to service. The examiner opined in pertinent part, It is less likely than not that the current diagnosis of Unspecified Anxiety Disorder is related to and/or a result of the military service. STRs are silent for treatment for an anxiety disorder and STRs indicate that Veteran exhibited symptoms and behavior of a personality disorder. Additionally, a review of the records indicate that the onset of mental health was in 2008, which is 17 years after the Veteran’s discharge from the service. The Board finds that although the July 2014 medical opinion raises an indication that the Veteran has a diagnosis of PTSD which is causally related to service, the opinion is inadequate to support a grant of benefits sought, as there is no indication that the clinician reviewed the Veteran’s service treatment records or any other records contained in the claims file. Additionally, the Board finds that the December 2019 VA examination is inadequate. In that regard, the examiner failed to address the July 2014 medical opinion and December 2018 DBQ, which noted a diagnosis of PTSD, as well as the prior diagnoses of record, and reconcile those diagnoses to the extent that they differed from the examiner’s, as directed in the Board’s July 2019 remand instructions. Furthermore, subsequent to the December 2019 VA examination, VA treatment records indicate that the Veteran reported symptoms which included flashbacks, avoidance, and hypervigilance. While the Board greatly regrets further delay, remand is required for a new VA examination for full compliance with the Board’s previous remand instructions. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Accordingly, the matter is REMANDED for the following action: 1. The Veteran should be provided an examination to determine the nature and etiology of her current psychiatric disability. Access to the Veteran’s electronic VA claims file must be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the claims file, the examiner should first delineate all psychiatric disabilities identified on examination. The examiner is advised that the record in this case contains multiple psychiatric diagnoses, including a personality disorder, PTSD, bipolar disorder, depressive disorder, history of substance abuse, dysthymic disorder, addictive disorder, and mood disorder not otherwise specified. The examiner should therefore explain the basis for his or her opinion as to the Veteran’s current diagnosis or diagnoses and address the prior diagnoses of record to the extent they differ from the current diagnosis. If PTSD is diagnosed, the examiner should specify the stressor(s) upon which the diagnosis is based. The record contains multiple stressors cited by the Veteran, to include in-service sexual harassment and assault, as well as a post-service sexual assault. The examiner should review the record and provide an opinion as to whether there is any evidence of behavior changes in service after the harassment and/or assault reported by the Veteran which could provide corroborative evidence that the claimed harassment and/or assault occurred. (Evidence of behavior changes may include deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes). In this case, the Veteran’s personnel records reflect that she was counselled after a significant change in her duty performance and behavior. (Continued on the next page)   If the VA examiner concludes that the evidence of behavior changes in service is sufficient to corroborate the claimed harassment and/or assault, he or she should provide an opinion as to whether it is at least as likely as not that the Veteran currently has PTSD as a result of that harassment/assault or some other stressor. For any other mental disorder that is diagnosed, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any psychiatric disability identified on examination is causally related to the Veteran’s active service. In providing this opinion, the examiner should address the relevant evidence of record, to include the service treatment records showing that the Veteran was diagnosed as having a personality disorder and the July 2014 and December 2018 medical opinions. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.