Citation Nr: 21032019 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-41 811 DATE: May 25, 2021 ORDER Entitlement to service connection for a neurological disorder of the left lower extremity is denied. Entitlement to service connection for a right ankle disability is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. A neurological disorder of the left lower extremity did not manifest in service and an organic disease of the nervous system did not manifest within one year of separation and a neurological disorder is not attributable to service. 2. A neurological disorder of the left lower extremity is unrelated (causation or aggravation) to a service-connected disease or injury. 3. A right ankle disability did not manifest in service and is not attributable to service. CONCLUSIONS OF LAW 1. A neurological disorder of the left lower extremity was not incurred in or aggravated by service and an organic disease of the nervous system cannot be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1131, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. A neurological disorder of the left lower extremity is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. 3. A right ankle disability was not incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1978 to December 1984. The Veteran appeared at a Board hearing in October 2018; a transcript is of record. With respect to the Board hearing, the undersigned clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran's claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1131. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). 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, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. A neurological disorder of the left lower extremity At the Board hearing, the Veteran contended his lower extremity neurological disorder (claimed as sciatica) was due to his back disorder. The Veteran is service-connected for thoracolumbar strain. In addition to direct service connection, secondary service connection is warranted for disability which is proximately due to or the result of service connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). It is unclear when exactly the Veteran started having neurological problems with his lower left extremity, as no neurological disorder is listed as a current problem on his most recent VA treatment records. The Veteran confirmed at his Board hearing that his treatment is all through VA. The earliest evidence of possible disorder is a May 2010 VA emergency room record which noted radiating pain to the lower extremities, starting seven days before. A June 2010 VA treatment contains a denial of any radiating pain. VA treatment records indicate the Veteran had negative raise test bilaterally as late as April 2017 with no reports of any abnormality of the lower extremity. In November 2020, a VA examiner found left lower extremity radiculopathy was due to non-service-connected degenerative arthritis with Intervertebral Disc Syndrome (IVDS). A January 2021 VA addendum opinion noted that the examiner was unable to separate the symptomatology caused by the thoracolumbar strain and the symptomatology caused by the degenerative arthritis with IVDS, as symptoms are shared, in example, pain and tenderness of spine. An additional addendum opinion dated in January 2021 noted that the examiner was able to differentiate the symptoms of degenerative arthritis, IVDS, and thoracolumbar sprain and radiculopathy, with the later symptoms being decreased low leg extremity sensory and positive left straight leg test. A final VA addendum opinion was provided regarding whether bony pathology (i.e., arthritis) was caused by lumbar spine strain or had a different etiology and separate symptoms all boney pathology. The opinion stated that the Veteran had thoracolumbar sprain is related to service, but that degenerative arthritis is not and is often age-related and had a different pathogenesis than that of thoracolumbar spine. Degenerative arthritis caused radiculopathy and IVDS (phrased in the opinion as degenerative arthritis of the spine with progressive radiculopathy and IVDS). The opinion noted some overlap in symptoms among pathology, but, considering the entire corpus of these medical opinions, this appears to be limited to the lumbar pathology, not the remote manifestations such as radiculopathy. The Veteran therefore is not service connected for arthritis. The rating decision and the codesheet do not contain any relevant lumbar arthritis evaluations/codes. Therefore, as of the time of this decision, the rating decision did not encompass any lumbar degenerative arthritis. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to report pain and decreased sensation, but it would not be lay observable to determine whether lumbar strain or degenerative arthritis caused these symptoms. The medical opinions state that radiculopathy is due to degenerative arthritis. The Board has no reason to doubt the findings of the VA opinions. The medical professional that provided the medical opinions is competent to provide an opinion on this matter. He determined that the Veteran's radiculopathy was caused by arthritis. The examiner had knowledge of the Veteran's medical history and examined the Veteran and the other records, and provided conclusions in medical documents based on sufficient facts and data. Therefore, these opinions are entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the VA opinions. As degenerative arthritis is not service-connected, service connection for radiculopathy cannot be granted. The Board has also considered other theories. Here, a left lower neurological disorder was not manifested during service or within one year of separation. Rather, at separation in October 1984, the neurological system was normal on clinical evaluation. The Veteran did have lower extremity abnormality (right patella boney spur), but this is unrelated to current radiculopathy. The Veteran denied any neuritis, foot trouble, or lameness on an October 1984 report of medical history. In addition, there is no evidence of neurological problems until decades after service. There is no evidence that a left lower neurological disorder is otherwise due to service. For the reasons expressed above, the preponderance of the evidence is against the claim of entitlement to service connection for left lower neurological disorder and the claim must be denied. 2. Right ankle disability The Veteran contends he was treated in service for ankle problems and has continued to have ankle problems since. See, e.g., October 2018 Board hearing. The Veteran had repeated treatments for the right ankle in service. In April 1979, the Veteran reported he thought he had sprained his ankle the day before and he had a swollen right ankle with pain. Assessment ruled-out ankle sprain. In June 1979, the Veteran reported right ankle and foot pain for one week and had been told he had tendonitis. Assessment was acute tendinitis. In October 1979, he again was complaining of ankle problems and he had a history of ankle problems. Assessment was pain in ankle. He reported he had pain for approximately six months, with intermittent symptoms, after an injury playing football. He was assessed with achilles tendonitis. At separation in October 1984, the Veteran had a normal foot examination, but was noted to have abnormal lower extremities. The notes section lists only right patella bony spurius ganglion. A summary of defects reports the Veteran had multiple orthopedic fractures without residual deformity or limitation. The report of medical history dated that same month notes that the Veteran had swollen or painful joints and broken bones, but he denied foot trouble, cramps in legs, lameness, bone or joint or other deformity, or arthritis or rheumatism or bursitis. The report of medical history's section for explanation notes multiple bilateral wrist fractures and back pain. There are no reports regarding the ankle. An October 2013 VA treatment record includes a physical examination of the right ankle, with noting of toes downgoing bilaterally, no ankle clonus elicited, and no assessment of any ankle issues. The Veteran filed a claim for service connection for right ankle sprain in February 2015. At his hearing, the Veteran reported he had some type of tenderness or tightness in the back of his ankle at times and during these times he cannot flex his ankle and has painful walking. A VA examination occurred in November 2020 for the ankle. The examiner found lateral collateral ligaments sprain and deltoid ligament sprain. The examiner reported that the Veteran stated he had pain onset in 1979 with progressive worsening with current ankle pain. Right ankle was normal on initial range of motion testing and after observed repetitive testing (three repetitions). The Veteran did not have factors causing functional loss (pain, weakness, fatigability or incoordination significantly limit functional ability) or during flare-up. There were no additional factors contributing to disability. Muscle strength was normal. All other findings were likewise normal. The examiner's opinion was the Veteran had right ankle sprain in 1979, but no chronic ankle disorder was noted on a 1984 separation examination, therefore prior right ankle injuries were acute injuries without sequelae; negative opinion is warranted. The Veteran's right lateral collateral and deltoid ligament sprain is less likely was not incurred in or caused by the period of active duty. There is no treatment for an ankle disability in VA or private treatment records, which confirms the Veteran's report during the VA examination that he did not have any medical treatment. The Veteran has pain and has found to have been injured (sprain). Further, the Veteran reported problems with walking and flexing his ankle during periods of tightness. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, the Board accepts his statements that pain/tightness causes some issues with walking at times and therefore he has a disability. The Veteran is competent to report pain. The Veteran had an injury in service involving the right ankle. However, the reports of continuous pain since service are not credible. At separation, on a separation examination and on a report of medical history, multiple problems were noted, including of the lower extremities, but the Veteran and the examiner did not report or find any ankle problems. Treatment records, of which they are several hundred pages of, contain no reports of ankle pain and in fact contain at least one physical examination multiple decades after service which showed no ankle issues. In contrast, the VA examiner, a medical professional, found any right ankle disability would not be due to service, instead the Veteran's in-service ankle problems resolved, as no ankle problem was noted at separation. The examiner reviewed the Veteran's file and had knowledge of the Veteran's medical history, and provided conclusions based on sufficient facts and data. Therefore, these opinions are entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Such an opinion is entitled to more weight than the Veteran's statements. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection. The benefit-of-the-doubt doctrine does not apply, and the claim for service connection must be denied. REASONS FOR REMAND 1. Right knee disability The Veteran had treatment for complaints of right knee pain after falling down some stairs in April 1979, described as sharp pain occurs when stoops or kneels. At his separation examination dated in October 1984, the Veteran had abnormal lower extremities, with the notes section listing right patella bony spurius ganglion. The first post-service report of treatment for the knee is in October 2018, where a physical examination found small patella exostosis upon flexion laterally. Right knee X-ray showed evidence of prior trauma of the right proximal leg and patella alta of indeterminate significance. Assessment was previous knee injury in service, chronic pain, and abnormal X-rays. An MRI and referral to orthopedics for follow-up was recommended. However, it appears this did not occur prior to the last Supplemental Statement of the Case, as no relevant records are in the file. On remand, attempts should be made to obtain these records, if they exist. The Veteran was found to have right knee tendonitis/tendinosis and right knee patellofemoral pain syndrome during a November 2020 VA examination. The basis of a November 2020 VA opinion was the 1979 injury is inferred to be an acute injury without sequela and no chronic condition was noted at exit examination. The examination report, however, reports onset in 1979, and the opinion did not address the separation examination reports of right patella bony spurius ganglion or the October 2018 VA treatment record of prior traumatic injury. An addendum opinion is necessary. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records, to include any MRI and treatment for the right knee disorder after the February 2021 Supplemental Statement of the Case. 2. Obtain a VA opinion for the right knee disorder, last found to be right knee tendonitis/tendinosis and right knee patellofemoral pain syndrome. An additional examination is discretionary. The medical professional is asked to provide an opinion regarding whether it is as at least as likely as not (50 percent probability or more) that any right knee disorder was the result of service. The examiner should provide a complete rationale. The examiner should address the finding at separation in October 1984 of abnormal lower extremities (noted as right patella bony spurius ganglion) and the October 2018 VA treatment record noting a prior traumatic injury of the knee (see above in the body of the remand section). H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.