Citation Nr: 21023946 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-23 897 DATE: April 21, 2021 ORDER Service connection for a right ankle disorder, as secondary to stress fracture of the right tibia, is denied. Service connection for a left ankle disorder, as secondary to stress fracture of the left tibia, is denied. REMANDED A rating in excess of 10 percent for stress fracture of the right tibia. A rating in excess of 10 percent for stress fracture of the left tibia. A separate rating for vision impairment related to a scar of the right eye.   FINDING OF FACT The Veteran’s bilateral ankle disorders were not caused or aggravated by his service-connected bilateral tibial disorders. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.310. 2. The criteria for service connection for a left ankle disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1980 to September 2000. The case is on appeal from a January 2012 rating decision. In July 2017, the Veteran testified at a Board hearing. In a February 2020 decision, the Board remanded the claims of service connection for bilateral ankle disorders and the claims for ratings in excess of 10 percent for bilateral tibial disorders. The Board also denied a separate rating for vision impairment related to a scar of the right eye. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claim (Court). Pursuant to an October 2020 Joint Motion for Partial Remand (JMR), the Court vacated the Board’s February 2020 denial by a November 2020 Order, and remanded the issue to the Board. New evidence has been obtained and associated with the claims file since the most recent January 2021 supplemental statement of the case (SSOC), including a March 2021 lay statement. However, in the March 2021 brief, the Veteran’s representative submitted a waiver of RO review. See 38 C.F.R. § 20.1305(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (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 veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. 1. Service connection for a right ankle disorder, as secondary to stress fracture of the right tibia. 2. Service connection for a left ankle disorder, as secondary to stress fracture of the left tibia. Facts The Veteran contends that his bilateral ankle disorders were caused or aggravated by his service-connected tibial disorders. The Board notes the Veteran’s bilateral tibial disorders have been service connected since his separation from service in October 2000. Following the Veteran’s April 2010 claim, the Veteran was afforded a June 2010 VA examination in which he reported when he gets off work, he has pain and swelling in both ankles which continues for approximately 6 to 8 hours. The examiner noted the Veteran’s gait was normal. An August 2011 VA opinion was submitted which indicated the Veteran’s service-connected tibial stress fractures did not cause the Veteran’s ankle disorders, including his decreased range of motion. He stated the tibial stress fractures ware distant from the ankles and there is no involvement of the ankles with the stress fractures. The Veteran submitted a December 2012 statement in which he reported pain, tenderness, swelling and decreased range of motion in the ankles, as well as compensated walking due to his symptoms. In the July 2017 Board hearing, the Veteran testified that he believes his bilateral ankle disorders were caused due to his bilateral tibial disabilities. He stated there is a “direct relationship” and he experiences an altered gait which leads to ankle pain and swelling. The claims came before the Board in April 2018 and were remanded for further development, including a VA examination as to whether the ankle conditions were caused or aggravated by the Veteran’s tibial stress fractures. The Veteran was afforded an April 2019 VA examination in which the examiner indicated his bilateral ankle disorders are not related to his service-connection tibial disabilities. The examiner reported the two conditions are not medically related, the ankle disorders are separate entities entirely from the service-connected tibial disabilities and there is a lack of evidence to support a medical relationship. She stated the Veteran’s diagnosed stress fractures are located approximately 19 centimeters proximal to the ankle joint. Additionally, she stated there is no evidence that the Veteran suffered chronic ankle symptoms during or after service, nor is there evidence of a permanent aggravation beyond the normal progression. She noted temporary aggravation is plausible. In February 2020, the claims were remanded by the Board again for a VA examination to determine if the ankle disorders are related to the service-connection tibial disorders. A September 2020 VA examination report was obtained in which the examiner indicated there is no nexus relationship between the Veteran’s bilateral ankle conditions and his previous stress fractures to the tibias, as the disorders are not medically related. She indicated the ankles and tibias are two separate and unrelated diagnoses and are separate entities entirely. She stated physical examination showed that ankle range of motion was mostly within normal limits and slightly abnormal measurements are due to the natural body habitus/age. The examiner reported a thorough review of medical literature failed to demonstrate a causal relationship and a nexus has not been established between the ankle strains and the bilateral tibial disorders. Thereafter, a December 2020 VA opinion was submitted in which the examiner indicated the Veteran’s ankle issues were noted over 20 years after the stress fractures to the tibias and the record is silent for any ankle complaint until 2010. She stated the ankle conditions were not aggravated beyond the natural progression by the tibial disorders. She further reported no antalgic gait was noted during the examination and as such, a nexus is not established. The examiner noted the Veteran is found to be on Azor for his blood pressure and has been on the medication for several years. She opined Amlodipine is a component in Azor and has a side effect of ankle edema, which may be a factor related to the Veteran’s ankle swelling. Another opinion was obtained by the RO. A January 2021 VA opinion was submitted in which the examiner opined the Veteran’s bilateral ankle disorders are not causally related to his tibial disabilities. The physician indicated there is no evidence of ankle involvement with tibial stress fractures. He stated the stress fractures were located approximately 19 centimeters above the ankle and unlikely to have contributed to an ankle condition. He noted the June 2010 VA examination found the Veteran’s gait was normal and medical evidence does not support the contention that an altered gait from the bilateral tibial disorders led to the ankle conditions. He stated medical knowledge and practice suggests that a simple gait accomodation would not cause an ankle sprain/strain. He noted this is supported by standard texts such as “Wheeless.” The examiner indicated rare exceptions include a 3 to 5 percent leg length discrepancy and/or chronic exaggerated “Trendelenburg gait,” and such are not noted in the record. Therefore, he opined the right and left ankle disorders are not caused or aggravated by the bilateral tibial disorders. The examiner noted it is possible during an acute phase of the tibial stress fractures that the Veteran might have had dependent edema and associated discomfort in the ankles; however, the service treatment records and post-service evidence does not suggest any such changes of the ankles. Analysis The Board determines service connection for the bilateral ankle disorders, as related to the service-connected tibial disabilities, is not warranted. The most persuasive medical evidence of record supports that the Veteran’s ankle disorders are not causally related to his service-connected bilateral tibial conditions. While the Veteran was provided with several VA opinions following the February 2020 Board remand, the Board finds the January 2021 VA opinion to be the most persuasive evidence of record and thus, is accorded the greatest probative weight. The physician’s opinion is consistent with the evidence of record and responds to the Veteran’s contentions. The examiner adequately addressed the medical evidence of record, as well as relevant medical literature. Moreover, the opinion contains clear conclusions and well-reasoned explanations in support. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes there are no medical opinions of record supporting that the Veteran’s bilateral ankle disorders are causally related to his service-connected bilateral tibial disabilities. The Board acknowledges the Veteran’s lay contentions supporting that his tibial conditions led to his ankle disorders, including during the Board hearing. However, the present claims involve complex medical issues requiring medical training. While the Veteran as a lay person is competent to report experiencing ankle symptoms, he lacks the requisite expertise to render a medical opinion as to the etiology of his bilateral ankle disorders. This is a complex medical question which falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, the Veteran’s opinion as to the etiology of his bilateral ankle disorders, including whether such are associated with his service-connected tibial conditions, is afforded less probative weight than the January 2021 VA examination report from a physician. In sum, the Board finds the preponderance of the evidence is against the claims that the Veteran’s bilateral ankle disorders were caused or aggravated by his service-connected tibial disorders. Thus, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for bilateral ankle disorders is not warranted. Although the Board is remanding other claims for additional development, remand is not necessary for the issues decided herein, as there is no reasonable possibility that further assistance would substantiate the claims. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND 1. A rating in excess of 10 percent for stress fracture of the right tibia. 2. A rating in excess of 10 percent for stress fracture of the left tibia. As noted above, the Board remanded the Veteran’s claims for increased bilateral tibial disorder ratings in February 2020. The Board indicated a VA examination was required to assess the severity of his service-connected bilateral tibial disorders, to include specific findings regarding pain on range of motion testing and an estimation of functional loss, per Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Veteran was afforded a September 2020 VA examination in which he reported flare-ups, including that his disorder “just freezes up and swells”. He indicated he experiences sharp pain, more intense than typical symptoms. The Veteran indicated his flare-ups occur 1 to 2 times per week, cause pain at a level of 8 to 9 out of 10 and have a duration of 30 minutes to one hour. He further reported he cannot walk as often and as quickly as he wants to, he requires frequent breaks to rest while doing yard work and that his tibial disorders stiffen at work requiring him to take breaks. Range of motion testing showed dorsiflexion of the right ankle limited to 5 degrees and plantar flexion to 45 degrees, as well as dorsiflexion of the left ankle limited to 5 degrees and plantar flexion limited to 40 degrees. The examiner found there is no evidence of pain with weight bearing, nonweight-bearing and no objective evidence of pain on passive range of motion testing in both tibial disorders. With regard to the reported flares, the examiner stated the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. The Board finds that, despite the recent September 2020 VA examination, a remand is warranted for a new VA examination to fully evaluate the severity of the Veteran’s service-connected bilateral tibial disorders. The Board finds the September 2020 VA opinion fully satisfied the standard set forth in Correia to test the joints for pain on both active and passive motion, and in weight-bearing and nonweight-bearing. However, the examiner did not provide adequate rationale with regard to potential additional functional loss during the reported flare-ups of the Veteran’s bilateral tibial disorders. Thus, on remand the reported flare-ups should be fully addressed by the VA examiner and he or she should “estimate the functional loss that would occur during flares.” See Sharp, 29 Vet. App. at 33. The Board notes during the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses musculoskeletal ratings. 85 Fed. Reg. 76453 (Nov. 30, 2020). The final rule went into effect February 7, 2021. Where there is a change in the rating criteria during the period on appeal, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. 3. A separate rating for vision impairment related to a scar of the right eye. As noted above, in February 2020 the Board denied the Veteran’s claim for a separate rating for vision impairment related to service-connected scar of the right eye. The decision was appealed to the Court and per the October 2020 JMR, the Court vacated the decision in the November 2020 Order. Per the October 2020 JMR, the parties agreed the terms of the prior April 2018 Board remand were not fully satisfied. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was afforded an April 2019 VA examination in which the examiner adequately opined that the Veteran’s blurred right eye vision was not proximately caused by his service-connected right eye scar. However, the examiner did not provide an opinion as to whether the Veteran’s blurred right eye vision was aggravated by his right eye scar. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Therefore, remand is warranted to obtain an addendum opinion as to potential secondary service connection based on aggravation. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or telehealth interview, record review, etc., if an in-person examination is not feasible) by a qualified medical professional for an opinion to determine nature and severity of his service-connected bilateral tibial disorders. The examiner should estimate the functional loss that would occur during flares. If this information cannot be provided, it should be thoroughly explained why. 2. Forward the claims file to the VA examiner who conducted the April 2019 VA eye examination to obtain an addendum opinion to address the etiology of the Veteran’s right eye blurred vision. If this examiner is no longer available, forward the claims file to an appropriate medical profession for an addendum opinion. It is left to the examiner’s discretion whether to schedule the Veteran for an examination. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s blurred right eye vision was aggravated by the service-connected right eye scar. Aggravation means an increase in severity beyond the natural progress of the disease. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Isaacs, 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.