Citation Nr: 21041270 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-15 704 DATE: July 8, 2021 ORDER Service connection for a left ankle disorder is granted. Service connection for a low back disorder is denied. REMANDED Entitlement to service connection for acid reflux (ulcer) is remanded. FINDINGS OF FACT 1. With favorable resolution of doubt, the Veteran's arthritis of the left ankle disorder is proximately due to her service-connected right ankle sprain with degenerative arthritis. 2. The preponderance of the evidence establishes that a low back disorder first manifested many years after service due to a post service work-related injury, and was not incurred during service and is not related to any inservice event, injury or illness; and lumbar arthritis did not manifested within one year of service discharge. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle disorder have been met. 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1987 to January 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) VA Regional Office (RO). In September 2019 the Board denied service connection for a right knee disorder, bilateral ankle disorders, and acid reflux (ulcer), and remanded claims for service connection for a low back disorder and a left knee disorder. The Veteran appealed the denials of service connection to the Court of Appeals for Veterans' Claims (Court) which entered Order August 2020, pursuant to a Joint Motion for Partial Remand (JMPR), vacating the denials of service connection and remanding the case to the Board to obtained post service private clinical records. The Board remanded the case in January 2021 to obtain private clinical records and conduct additional VA examinations and obtain up-dated VA medical nexus opinions. Thereafter, a May 2021 rating decision granted service connection for left knee osteoarthritis, status post (SP) total left knee replacement, and for a right ankle sprain with degenerative arthritis and tenosynovitis, as well as for right knee degenerative arthritis with patellofemoral pain syndrome (PFPS), and a post-operative left knee scar. These grants of service connection are complete grants of the benefit sought and, so, those claims for service connection are no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Pursuant to the 2021 Board remand, by RO letter of February 3, 2021, the RO requested that the Veteran to provide the location and the dates of treatment for any private medical records, especially records from Dr. B.S.Z. of Spectrum Health in Sparta, MI.; and, all records from the other private providers that the Veteran alluded to during the February 2020 VA back and knee examinations, including all records leading up to, including, and since the year 2016 as to her left knee and year 2000 back surgeries. However, the Veteran never responded. In this regard, "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Pursuant to the January 2021 Board remand, the Veteran was afforded VA examinations in April 2021 as to her claimed disabilities of each knee and each ankle. If additional private clinical records were obtained, she was to be afforded a VA examination as to her low back disability. However, because no additional private clinical records were received, she was never scheduled for a VA examination as to her claimed low back disability. Accordingly, the Board concludes that there has been substantial compliance with the Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service Connection Establishing service connection generally requires (1) evidence of a current 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curium, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, not every manifestation of joint pain during service will permit service connection for arthritis first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). Certain chronic diseases, such as arthritis will be presumed related to service, absent an intercurrent cause, if shown as chronic in service; or, if manifested to a compensable degree within a presumptive period following separation from service; or, if noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). A chronic disease need not be diagnosed during a presumptive period but no presumptions may be invoked on the basis of advancement of the disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10 percent within the presumptive period. There must be shown, by acceptable medical or lay evidence, characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307. Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (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). Reasonable doubt will be favorably resolved if there is an approximate balance of favorable and unfavorable evidence but if the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001) (holding that an approximate balance of evidence is more favorable than the evidence being in equipoise, i.e., equally balanced). 1. Service Connection for left ankle arthritis At the September 2015 VA examination, the Veteran told the examiner that she had chronic pain in her left ankle and that in approximately 2010, because her ankles were weak from her military service, she fell on ice and fractured her left ankle. X-rays taken at the examination revealed mild degenerative changes. The VA examiner diagnosed degenerative joint disease (DJD) and opined that the Veteran's DJD was less likely as not due to military service. Rather, it was likely due to wear and tear and the aging process, and not related to military service. She noted that the Veteran reported that she had not been evaluated or treated for an ankle condition from the time of her separation from the service until her fall on ice in 2010. It was commented that there were multiple notations in service treatment record (STRs) concerning the Veteran's right ankle, but there was only one notation concerning her left ankle and it showed that during an examination on February 2, 1988, as a follow up to the Veteran's fall in January, her left foot was tender to touch. Also, a supporting statement from the Veteran's private treating physician, Dr. Z., did not include either ankle in the list of conditions which that physician opined resulted from inservice injuries. It was also commented that to the extent that the Veteran believed her military service weakened her ankles causing her to later fall on ice, there was no medical evidence supporting that assertion, and there was no evidence the Veteran was qualified by training to offer medical opinions. Pursuant to the January 2021 Board remand, the Veteran was afforded a VA examination of her ankles in April 2021, at which time her records were reviewed. It was reported that there were diagnoses in 1987 of medial tibial stress syndrome (MTSS), or bilateral shin splints; and current diagnoses of degenerative arthritis. Historically, it was noted that during service the Veteran had been a lineman and fell from a telephone pole resulting in ankle injuries requiring a cast to the firth lower extremity (RLE) and physical therapy. Military wear and tear, and shin splints, when in the service required limited duty and she had had a physical therapy regimen. She was seen following an injury to the right ankle and foot but an X-ray at the time was normal. She had had a recurrent right ankle and foot injury during a training exercise crawling in and out of fox holes 1988. Throughout her military career, the Veteran had bilateral ankle pain and weakness, walking on the inside of foot. During service she had bilateral ankle sprains, once requiring a walking boot for a couple weeks in 1988. Also, the Veteran had a history of left ankle fracture in April 2010 and had to be casted with a large walking boot for a period of time until it healed. The Veteran stated she now had difficulty walking over uneven ground and at times had to use a single point cane for balance. As to current symptoms the Veteran reported that her left ankle was unstable and weak, and she related having debilitating cramping in toes and left foot throughout the day and night. Her right ankle compensated for the left lower extremity weakness and pain. On physical examination she had limited left ankle motion and the examiner reported that she had weakness with instability causing recurrent sprains. She had an antalgic gait, with a left sided limp. The examiner reported that the Veteran's MTSS during service had resolved. A report of VA X-rays in April 2021 revealed mild arthritis of the left ankle joint and spurring of the calcaneal (heel) bone. In rendering a nexus opinion the VA examiner reported that after reviewing claims file, and conducting an interview and examination, the Veteran's injury to the right ankle caused increased weight bearing activity and stress to the left ankle, resulting in a left ankle fracture in 2010 that caused advanced osteoarthritis with chronic pain to the left ankle. Based upon this analysis, the examiner opined that the left ankle disability was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The rationale was that the Veteran's left ankle pain was most likely related to her post military left ankle fracture in 2010. She had sought no medical attention for left ankle pain or an injury to the left ankle during the course of her military career and she did not have any supportive documentation of an acute injury to the left ankle during military service. The diagnosed with osteoarthritis of the left ankle during the examination was most likely related to the fracture from 2010. The Board is persuaded that the VA examinations in 2015 and 2021 were thorough. Both examinations yielded negative medical opinions as to a nexus between the Veteran's current arthritis of the left ankle and her military service. However, neither examiner was requested to render an opinion as to whether the now service connected right ankle disability was causally related to any left ankle disability. This is because at the time of each examination the Veteran was not service connected for disability of the right ankle, inasmuch as service connection for right ankle disability was not granted until the May 2021 rating decision. With this in mind, the Board notes that while the 2015 medical opinion was that the Veteran's left ankle arthritis was, in essence, degenerative and simply due to aging, the April 2021 VA examiner stated that injury to the right ankle caused increased weight bearing activity and stress to the left ankle resulting in a left ankle fracture in 2010 that caused advanced osteoarthritis with chronic pain to the left ankle. In essence, this establishes causation between the now service-connected right ankle sprain with degenerative arthritis and the Veteran's arthritis of the left ankle. Accordingly, with the favorable resolution of doubt service connection for arthritis of the left ankle is warranted as secondary to the service-connected right ankle sprain with degenerative arthritis. 2. Service connection for a low back disorder The STRs reflect treatment and evaluations for injuries of the Veteran's lower extremities but are negative for complaints, signs, symptoms, history, treatment, or diagnoses of any low back disability. On VA examination in September 2015 of the Veteran's knees and lower legs the Veteran reported that she had last worked 22 years ago and that she had been on disability through the State of Michigan for 22 years, and the nature of disability was chronic back pain and history of back surgery. In a March 2016 statement Dr. Z. reported that as a family practitioner she had reviewed the medical history which the Veteran provided but no records during her military service. The Veteran reported having three (3) falls from poles during service. Dr. Z. had treated the Veteran since May 2000 and her diagnoses of musculoskeletal disorders included, among other disorders, lumbar back pain. It was the opinion of Dr. Z. that all of the musculoskeletal disorders were "a direct result of her injuries sustained during time spent in military service." In a May 2016 statement Dr. Z. reported that she had reviewed the medical history which the Veteran provided and limited records during her military service. Dr. Z. again repeated the diagnoses and opinion, adding that the opinion was based upon an examination and "review of medical and service records, my education training and experience and upon reasonable probability and reasonable medical certainty." On VA examination in February 2020 the diagnosis was a lumbosacral strain. The Veteran reported having injured her back during a fall from a telephone pole during service, and that she had had a laminectomy in 2000. After a physical examination the examiner opined that it was less likely as not that a claimed low back disorder was incurred in or caused by inservice injury, event, or illness. The rationale was that although the Veteran reported having had a low back injury during service, there was no documentation of any evaluation or treatment of a lower back condition while in service. She underwent a laminectomy in 2000 for presumed degenerative disc disease, by her self-related history, however there was no medical documentation in the record. In conjunction with the February 2020 VA examination, lumbar X-rays were taken in March 2020 which revealed only minor dextroscoliosis and were otherwise grossly within normal limits. In this case, to the extent that the Veteran alleges that her current low back disability stems from inservice injuries, she lacks the education, training, and expertise to render a medical opinion as to the etiology of any current low back disability because such a matter is one of a complex medical question. Moreover, even if she were competent, she is not credible to the extent that she, at least, implicitly indicates that she has had continuous low back pain since service. This is for several reasons. First, the opinion of the private physician that current low back pain is due to inservice injuries relied only minimally on a review of records and primarily rests upon the clinical history related by the Veteran. However, it is equally clear that the Veteran did not relate a complete clinical history to the private physician, inasmuch as the private physician made no reference to the Veteran's post service work-related back injury for which she received workers compensation for many years. In fact, it is only after this post service work-related back injury, as to which the Veteran declined to provide additional or explanatory evidence, that there is any evidence of a low back disability, including low back surgery. In simpler terms, it is clear that the private physician was unaware of the post service low back injury in rendering the nexus opinion that current low back disability is related to inservice injuries. While the negative VA nexus opinion also did not consider the Veteran's history of post service low back injury, this opinion was predicated upon a factual scenario which more closely approaches the true facts in this case. Accordingly, the Board give greater probative value to the negative VA medical nexus opinion. Thus, service connection for a low back disorder must be denied. There is no doubt to be resolved. REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claim remaining on appeal. STRs include preservice private medical records which reflect that the Veteran had preservice lower abdominal surgery in 1984 for chronic pelvic pain, and a post-operative diagnosis of pelvic adhesions. A May 1988 STR noted that the Veteran had unspecified "female problems" and she was to have a trial of some medication for "adhesions" and she was to be given Tagamet. Also contained in the STRs is an August 1988 prescription from a pharmacy reflecting that the Veteran was prescribed Tagamet. The Veteran has yet to undergo a VA examination in conjunction with her claimed gastrointestinal disability. An examination or opinion is necessary to make a decision on a claim if the evidence of record contains competent evidence that the claimant has a current disability, and indicates that the disability or symptoms may be associated with the claimant's active military history, but does not contain sufficient medical evidence to make a decision on the claim. See 38 U.S.C. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4). Accordingly, the Board finds that he should be scheduled for a VA examination and opinion to determine whether the Veteran's use of Tagamet is indicative of in-service onset of a chronic disability manifested by acid reflux or if she has a current chronic condition related to her use of this medication in the military. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. After the above development has taken place, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of any currently present gastrointestinal disability. In rendering such opinions, the examiner should consider and address whether the Veteran had a gastrointestinal disability that existed prior to service and was aggravated by service. For each identified disorder that did not pre-exist service, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the gastrointestinal disability, if diagnosed, is related to the Veteran's active duty service, to include the Tagamet medication that the Veteran was administered during service. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 3. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.