Citation Nr: 21029472 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-35 749 DATE: May 13, 2021 ORDER Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a left ankle disability is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a headache (HA) disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a right ankle disability due to an event, injury, or disease in service, to include as secondary to a service-connected low back disability. 2. The preponderance of the evidence is against finding that the Veteran has a left ankle disability due to an event, injury, or disease in service, to include as secondary to a service-connected low back disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 2. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1971 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a December 2018 Board decision, this matter was remanded for new examinations for opinions to address secondary service connection, possible pre-existing knee disabilities and whether the Veteran's headaches were related to exposure to Camp LeJeune Drinking Water (CLDW). See December 2018 Board Remand. That development is now complete in substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Establishing service connection generally requires (1) evidence of a presently existing disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be established on a secondary basis when a disability is shown to be proximately due to or the result of a service-connected disease or injury. 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 by or (b) aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Left ankle disability 2. Right ankle disability The Veteran contends that his left ankle and right ankle disabilities are related to service due to a brick hitting his left ankle, and twisting his ankles at different times while running. In the alternative, the Veteran contends that his knee and ankle disabilities are secondary to his back disability. The Veteran is currently service connected for a back disability. Regarding the first element of service connection, the Veteran must show that he has a current disability. The November 2019 VA examiner noted a diagnosis of bilateral ankle strain. Thus, the Board finds that the first element is met. Regarding the second element, the Veteran must show evidence of an in-service event. In this case, the Veteran was treated for left and right ankle pain while in service. Therefore, the Board finds that the second element is met. The question for the Board is whether there is evidence of a nexus between his inservice ankle pain and his current complaint of ankle pain, or in the alternative, between his ankle disability and his back disability. The Veteran was provided ankle VA examination for his right and left ankles in May 2016. The examiner noted that the Veteran reported chronic left and right ankle pain, which caused a functional loss in the inability to stand or walk for long periods of time. The examiner noted that the Veteran's ankles had no muscle atrophy, ankylosis, joint instability, no loss of strength and did not require the use of assistive devices. The examiner opined that his current functional impairments did not impact his ability to perform any type of occupational task, such as standing, walking, lifting, or sitting. In providing a negative nexus opinion, the 2016 examiner noted that diagnostic testing did not show objective evidence of degenerative or traumatic arthritis in either ankle. The examiner opined that the Veteran's current left ankle pain is less likely than not related to an inservice ankle injury because the inservice left ankle injury was self-limiting and resolved with time. The examiner opined that the Veteran's current left and right ankle pain is less likely than not due to service and more likely than not due to post-service injury or overuse syndrome. However, as noted by the May 2018 Board decision, the 2016 examiner did not address whether the ankle disabilities were due to or aggravated by the Veteran's service-connected back disability. . In November 2019, an addendum ankle disability opinion was provided pursuant to remand instructions. The November 2019 examiner noted a diagnosis of left and right ankle strain. The examiner noted that there is no objective evidence within the Veteran's treatment records that he has been diagnosed with left ankle arthritis. The examiner noted that the Veteran's Service Treatment Records (STRs) indicate that the Veteran's left ankle was struck by a brick. The examiner noted that there was no objective medical evidence that the Veteran's left ankle injury was severe in nature or became chronic while in service or is the cause of his current ankle pain. The examiner determined that due to a lack of significant alteration in the Veteran's gait, or major limp occurring over a prolonged period, it is unlikely that there was a detrimental effect on the Veteran's left ankle. The examiner opined that it is less likely than not that the Veteran's left ankle disability is related to service. In providing a negative nexus opinion, the examiner further opined that there is no objective evidence that the Veteran's lumbar spine disability caused or aggravated his left ankle disability. The examiner opined that it is at least as likely as not that the Veteran's ankle pain is due to use or overuse, post-service recreational or occupational injury, and body habitus. The Veteran was diagnosed with morbid obesity as early as 2010. Regarding the Veteran's right ankle, the examiner noted that there was no evidence of a chronic medical condition while in service, or at separation, the would be the cause of the current right ankle pain. The examiner opined that the Veteran's right ankle disability is less likely than not related to service. The examiner also opined that the Veteran's right ankle pain is less likely than not caused by or aggravated by a service-connected back disability. The examiner explained that there is no objective medical or scientific evidence that a lumbar spine disability will cause or aggravate his right ankle strain disability. The examiner noted that there is no objective evidence of arthritis in the right ankle. The Veteran is competent to report that he experienced pain in his left ankle while in service. However, he is not competent to self-diagnose a bilateral ankle disability then or since service. The Board acknowledges the Veteran's opinion that his claimed ankle disabilities are due to his in-service ankle complaints, or secondary to his back disability. As a lay person, he does not have the education, training, or experience to opine on the etiology of any current related disability. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007) (lay persons not competent to diagnose conditions such as cancer). "Competent medical evidence" is evidence that is provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. §§ 3.159(a); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran submitted a private medical opinion indicating that his bilateral ankle disability was aggravated by this service-connected back disability which consisted of one sentence stating that his ankle disabilities were cause and aggravated by his back and knee disabilities. See Dr. R.S.P Letter, dated August 5, 2010. The Board finds the opinion is inadequate for adjudicative purposes because it did not indicate whether it is based on review of the Veteran's records, failed to specify if it was based on a physical examination, failed to address medical records, and most importantly, failed to provide an explanation or rationale for the conclusion. Thus, the Board finds that Dr. R.S.P.'s opinion is conclusory and not probative regarding secondary service connection. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). It is afforded minimal probative weight. The November 2019 VA opinion found that the Veteran's ankles were not directly due to the inservice complaints or secondary to his service-connected back disability, despite reports of ankle pain. The examiner noted that the reports of pain had resolved in service without any further complaints of chronic pain after service. The examiner noted the Veteran's law statements, reports of pain, reviewed the file, and provided a rationale for the reported opinion. The Veteran's medical records were silent for ankle problems until August 2010, decades after service. As such, the November 2019 opinion and medical records outweigh the private opinion and is the most probative opinion of record. Even though the May 2016 VA opinion failed to address secondary service connection, it did address direct service connection. Therefore, it is afforded some probative weight. Taken together, the VA opinions outweigh the Veteran's private opinion as they are based on a review of the file, medical history, physical examination, and contain rationale for direct and secondary service connection opinions. Further, the VA examiners provided likely etiologies of the Veteran's bilateral ankle disabilitiesnamely, overuse, body habitus, or post-service injury. The Board acknowledges that service treatment records show complaints of left ankle pain in March 1973. STRs also show complaints of right ankle pain and a callous on his right foot in January 1972. Further, in October 1972, the Veteran stated that he had pain in both ankles for eight months. However, he did not follow up with a podiatrist referral because he did not feel like it. See STR dated January 17, 1973, received August 2014. Although these records indicate complaints of left and right ankle pain during service, there is no competent evidence linking these complaints to any current symptoms in his ankles. Also, his first post-service complaint of ankle pain occurred decades after service. The Veteran has not provided competent probative evidence linking his current ankle strain either to service or secondary to his service-connected back disability. Based on the foregoing, the Board finds that service connection for right and left ankle disabilities is not warranted as there is no competent evidence showing a nexus to service, or to a service-connected back disability. The competent probative medical evidence of record does not support that his current right and left ankle disability is related to service or was caused or aggravated by his service- connected back disability. Thus, the weight of the evidence is against the claims; the benefit of the doubt doctrine is not for application. The claims are denied. REASONS FOR REMAND 1. Right knee disability 2. Left knee disability The Veteran contends that this right and left knee disabilities are related to service, or in the alternative are secondary to his service-connected back disability. Regarding his right and left knee, the Veteran was diagnosed with degenerative arthritis of both knees in November 2002. The Veteran's STRs show that he was evaluated for left knee pain, knee pain, as well as a complaint of "weak knees." See STR dated January 30, 1972; December 23, 1972 and July 12, 1973. Therefore, the Board finds that the first and second elements of service connection have been met. The question for the Board is whether there is a nexus between the inservice events and his current right and left knee disabilities. A May 2018 Board decision remanded the matter for a new VA examination to address whether his right and left knee disabilities were secondary to his back disability, and to address whether a knee disability existed prior to service. The Board notes that the Veteran states that he had hurt his knee three years prior to service while playing basketball. A new VA examination was provided in November 2019, which addressed direct service connection, secondary service connection, but did not clearly address the possibility of a pre-existing knee disability. The examiner noted that the Veteran complained of left knee pain while in service and that the pain resolved prior to discharge. The examiner noted that the Veteran developed a right knee disability after service. However, the examiner did not state whether a knee disorder clearly and unmistakably existed prior to service. And if so, the examiner did not clearly address whether the pre-existing knee disability was not aggravated beyond its normal progression by his active duty service and did not clearly address the Veteran's lay statement of a pre-service sports injury to his knees. Therefore, the Board finds that the remand is required to obtain an opinion regarding a pre-existing knee disability. 3. Entitlement to service connection for a HA disability The Veteran contends that his HA disability is related to service, to include as due to exposure to CLDW. In the alternative, the Veteran contends that his HA disability is secondary to his service-connected sinusitis. A May 2018 Board decision remanded this matter for an opinion on secondary service connection and whether the Veteran's HA disability is related to exposure to CLDW. A new VA examination was provided to the Veteran in November 2019. The examiner stated, "I am unable to provide a Cam[p] Lejeune opinion as part of this evaluation. That opinion should be sought from an approved provider." Therefore, remand is required to obtain an opinion regarding whether the Veteran's HA disability is due to exposure to CLDW. Accordingly, the Board finds that an addendum VA examination is necessary to properly adjudicate this issue on appeal. The matters are REMANDED for the following action: 1. Obtain an addendum opinion as to the nature and etiology of the Veteran's right and left knee disabilities. The need for an in-person examination is left to the discretion of the examiner. Following review of the claims file, the examiner should provide opinions that respond to the following: (a.) The examiner is asked to opine as to whether the Veteran's knee disability clearly and unmistakably existed prior to service. (b) If so, opine as to whether the Veteran's knee disability clearly and unmistakably underwent NO increase in severity due to active service, i.e., was NOT aggravated by his active military service. (c.) If there was an increase in severity of such disability during active military service, the examiner should opine as to whether that increase was clearly and unmistakably due to the natural progression of the disability. The examiner should address the Veteran's STRs which note a sports-related knee injuries three years prior to service. See STR dated January 18, 1972, received August 28, 2014. 2. Obtain an addendum from an appropriate examiner to determine the nature and severity of his HA disability (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner should provide an opinion as to whether the Veteran's HA disability is at least as likely as not due to exposure to CLDW. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.