Citation Nr: 21024097 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-00 790 DATE: April 22, 2021 ORDER Service connection for a right lower extremity disability is denied. FINDING OF FACT The evidence of record shows no femur disability and does not establish a link between a right lower extremity disability and any service-connected condition. CONCLUSION OF LAW The criteria for service connection for a right lower extremity disability have not been met. 38 U.S.C. §§ 1110, 1117, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310, REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from October 1993 to May 1995. This matter comes to the Board of Veterans’ Appeals (Board) initially from rating decision issued in April 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2015, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. In May 2018, the issue of the right lower extremity disability, specifically identified as a right distal femur fracture came before the Board. The issue was remanded by the Board for further development and a new VA examination. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). The matter returned to the Board in May 2020 and was remanded again for further development and a VA examination that focused on the Veteran’s claimed right lower extremity, fibula disability. The Board is now satisfied that there was substantial compliance with the remand orders and is prepared to fully adjudicate the issue at hand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Service connection for a right lower extremity disability The Veteran contends that he is entitled to service connection for a right distal femur fracture or fracture of the fibula, claimed as a right lower extremity disability. The Veteran specifically contends that the lower extremity disability is secondary to his service-connected disabilities. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). The Board has thoroughly reviewed all service treatment records (STRs) and in-service evidence and the record is silent of any complaint, treatment, or diagnosis of a right lower extremity disability that specifically includes a femur or fibula disability in-service. There is also no link between a current disability of the right lower extremity and any in-service fibula or femur disability. Therefore, direct service connection is not established for a right lower extremity disability, specifically claimed as a femur or fibula disability. The first complaint of a right lower extremity disability was in September 2011, when the Veteran stated that he had suffered a hairline fracture of the ankle that was later diagnosed as a fibular fracture. In August 2012, the Veteran also stated that he was in an altercation and had suffered a femur fracture. The VA found no evidence of in-service incurrence or aggravation of the femur. Additionally, no medical evidence of record offers a formal diagnosis of a femur fracture or treatment for a disability of the femur. In 2015, the Veteran appealed the denial of a femur injury, specifically claiming that it was secondary to his service-connected disability. In the July 2015 Board hearing, the Veteran claimed that he suffered his femur injury due to a fall he suffered because of his right and left knee instability. The Veteran also asserted that he was seen at Cooper University Hospital for the femur. In October 2018, the Veteran was seen by a private doctor, Dr. JD. In the evaluation, Dr. JD notes that he did not view any records regarding a femur fracture, despite the fact that the Veteran reported that he had cracked his femur from a fall. Dr. JD also stated that he wondered if the Veteran was actually referring to a fibula fracture he suffered, since there is medical evidence in the record documenting a distal fibula fracture. Dr. JD noted that the Veteran was not clear regarding this aspect of his medical history. In December 2019, the Veteran received a VA examination to examine the femur. The examiner opined that it was less likely than not that the Veteran’s femur was aggravated beyond its natural progression. The examiner also opined that the femur is less likely than not proximately due to the Veteran’s service-connected conditions. The Veteran is denied service connection for his claimed femur fracture. There is no medical evidence of record diagnosing or treating the Veteran for any femur condition. The Veteran only offers lay statements throughout the record claiming he fractured his femur. The Veteran also reports that the femur fracture is due to a fall in some records and an altercation in other records. Given the inconsistencies of record, the Veteran’s statements are not sufficient to show he suffered a femur disability or fracture since service because the statements are vague and inconsistent with the highly probative medical records, VA examinations, and STRs. Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). In the May 2020 Board decision, the Veteran remanded the issue of the lower extremity to determine the etiology, and specifically consider the issue of the fibula fracture. Records from the Philadelphia VA Medical Center (VAMC) report a hairline ankle fracture that was treated with a soft cast and use of crutches. The records from Cooper University Hospital note that the Veteran was seen in the emergency department in September 2011 reporting that he had twisted his ankle two days earlier at home and he was experiencing pain and swelling and was unable to bear weight. The Veteran received x-rays that showed an angulated fracture of the distal fibula three centimeters from the ankle joint. In August 2012, the Veteran returned to the Cooper University Hospital, claiming he fell down the stairs. An x-ray was administered and showed a mild deformity of the distal fibula compatible with a healed fracture. In the above-mentioned October 2018 private medical opinion, Dr. JD stated that “it is more likely than not” that the distal right fibula injury is secondary to the Veteran’s service connected left knee strain, as the left knee strain seems to be the root cause of all the Veteran’s additional orthopedic injuries, including the distal right fibula. Dr. JD also documented the complaint of a prior right ankle problem with an exam revealing full range of motion and normal strength. The Veteran received a VA examination of his fibula disability in January 2021. The examiner noted that the Veteran had a diagnosed fibula fracture in September 2011. The examiner also noted the Veteran’s statement that he injured the right fibula when he rolled his ankle during an altercation. The medical records documented a fracture of the right fibula that was treated with a soft cast and healed without complications. The examiner then examined the ankle and fibula and found no current symptoms or residual effects of the fracture. The VA examiner officially opined that the claimed condition of fibula fracture is less likely than not proximately due to the Veteran’s service-connected conditions. The examiner offered the rationale that the Veteran reported that the fracture was sustained during an altercation in which the assailant jumped on his right ankle, causing the fracture. The Veteran also denies any residuals of the fibula fracture as well. The examiner also opined that it was at least as likely as not that the Veteran’s right fibula fracture was not aggravated beyond its natural progression due to any service-connected conditions. The examiner stated that there was no medical evidence of an abnormal clinical examination of the right fibula or right ankle at the time of the VA examination. The Veteran did not report any pain, limited range of motion, or any functional loss due to the fibula fracture. In February 2021 a VA addendum was completed, to fully comply with the Board’s remand directives. Specifically, the addendum stated that the remand directives ordered the examiner to comment on the Veteran’s lay reports and the October 2019 private medical opinion and the January 2021 examination had not done an adequate job specifically commenting on those pieces of evidence. The addendum opinion noted that the Veteran stated that he was at a party and an altercation occurred during which a person at the scene stepped on the Veteran’s ankle and he did not seek medical attention for several days until he noticed swelling. The Veteran did not recall which side the fracture occurred on during the exam and did not point out any residuals. The medical records on file do note ankle pain and reflect that the Veteran suffered a right fibular fracture. There was no indication or documentation in the record that the service-connected left knee caused the fibula fracture. There is also no documentation or mechanical reason within medical literature citing a left knee disability that would result in or cause a right fibula fracture. The addendum opinion also addressed the October 2018 private opinion offered by Dr. JD. Dr. JD stated that “in my opinion, based on the history taken from [the Veteran], on my physical examination of [the Veteran] today and on the records reviewed it is at least as likely as not that the knee pain with crepitus and intermittent instability, his low back pain with bilateral radiculopathy and his distal right fibular injury are secondary to his service-connected left knee strain.” However, Dr. JD offered no rationale whatsoever for his opinion, decreasing the probative value, despite the competency of the report. The addendum opinion also reported that the Veteran reported his right ankle injury and right fibula fracture was sustained during an alteration in which his ankle was forcibly and traumatically stepped on. The Veteran recalled the injury as a traumatic fracture due to the ankle being stepped on and not due to a fall or any residual of a service-connected left knee injury. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Board has determined there is a preponderance of the evidence against the claim. The VA examination and addendum opinion are found to be more complete and probative opinions than the private opinion offered by Dr. JD. The VA examination and addendum opinion addressed all remand directives and offered opinions with full and complete rationale for finding that the Veteran was not entitled to secondary service connection of his lower right extremity disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008); see also Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The private doctor did not provide any rationale for his opinion and in fact noted that the Veteran’s report of a femur injury was not supported by the record and perhaps the Veteran actually meant the fibula fracture. As such, an opinion based upon an inconsistent reported history with no rationale to explain the conclusion is given no probative weight. Therefore, the claim is denied. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.L. Aumiller, 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.