Citation Nr: 21041850 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 13-29 310 DATE: July 10, 2021 ORDER Entitlement to service connection for tendinosis and arthritis of the right ankle (right ankle disability) is granted. Entitlement to service connection for neuropathy of the left leg is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, his right ankle disability is due to the Veteran's service-connected residuals of an old fracture of the tibia and fibula with degenerative joint disease of the left knee (left knee disability). 2. The preponderance of the evidence of record reflects that the Veteran's neuropathy of the left leg was not incurred in or otherwise related to his active duty service, to include his service-connected disabilities, including his left knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for tendinosis and arthritis of the right ankle are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), (c), 3.310. 2. The criteria for service connection for neuropathy of the left leg are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), (c), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from November 1948 to April 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decisions dated in December 2009 and April 2015. These issues were previously before the Board in March 2019, May 2020, and December 2020, at which time, the issues were remanded to the AOJ for additional development. This case has now been returned to the Board for further appellate action. There has been substantial compliance with the remand directives, with respect to the issues being decided. See Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION 1. Entitlement to service connection for right ankle disability The Veteran seeks service connection for a right ankle disability, which he asserts is related to service, or to his service-connected disabilities, to include his left knee disability. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board has carefully reviewed the evidence of record and finds that the Veteran's service connected left knee disability characterized as residuals of an old fracture of the tibia and fibula with degenerative joint disease of the left knee caused the Veteran's right ankle disability. Thus, resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a right ankle disability as secondary to the Veteran's service-connected left knee disability have been met. See 38 C.F.R. § 3.310. Service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. At the outset, the Board notes that a current diagnosis of tendonitis of the right ankle with degenerative arthritis has been established. See April 2021 VA examination. See also March 2021 private treatment record. The Veteran has stated that he fractured his left tibia in service; he later began developing pain and discomfort in his left ankle and then eventually his right ankle. See April 2021 VA Examination. See also August 2018 hearing testimony. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Service treatment records are silent as to any complaints, treatment, or clinical diagnosis for a right ankle disability. However, the Board notes that the Veteran's personnel records were destroyed in the 1973 fire at the National Personnel Records Center; and his original claims file was destroyed in the aftermath of Hurricane Katrina. See October 2007 and July 2007 Requests for Information. In cases such as this, where the Veteran's service records are unavailable through no fault of the claimant, there is a heightened obligation to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Resolving all reasonable doubt in favor of the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that the Veteran's right ankle disability is related to his service-connected left knee disability. The Board notes that in September 2019, a VA examiner opined that the Veteran's long standing left leg, old mid tibial and fibular diaphyseal fractures with residual deformity contributed to gait instability and limited range of motion (ROM) and pain and predisposed the Veteran to the development of arthritis in the right knee. The examiner noted that the Veteran's lower left limb did not have normal extension, which produced an overload and therefore injury to the opposite normal limb, predisposing the Veteran to the development of arthritis. In addition, in April 2021, a VA examiner opined that the Veteran's right ankle tendonitis was more likely caused by direct trauma or repetitive stress on the ankle joint. Thus, the Board finds that the September 2019 VA examiner's opinion that the Veteran's left leg disability produced an overload and injury to the Veteran's right leg, coupled with the April 2021 VA examiner's opinion that the Veteran's right ankle condition was more likely than not caused by direct trauma or repetitive stress on the ankle joint, supports a finding that it is at least as likely as not that the Veteran's right ankle disability is due to his left leg disability. The Board notes that at the time of the September 2019 VA examination, the Veteran did not have a current diagnosis of arthritis of his right ankle; however, the September 2019 VA examination revealed that the Veteran had abnormal range of motion (ROM) of his right knee with pain. The September 2019 VA examiner opined that the Veteran's right ankle pain and limited range of motion (ROM) was due to the Veteran's age and his diabetic peripheral neuropathy. See also July 2020 VA examination. A March 2021 private x-ray revealed mild degenerative spurring of the calcaneus at the insertions of the Achilles tendon and plantar fascia; swelling adjacent to the medial and lateral malleolar but more prominent medially. The April 2021 VA examiner opined that it was less likely than not that the Veteran's diagnosed tendonitis and arthritis of the right ankle was proximately due to or the result of the Veteran's service connected arthritis of the right knee or the Veteran's left ankle degenerative arthritis. The examiner noted that the most common cause of tendonitis was overuse; as well as an infection of the ankle or foot, or rheumatic diseases such as gout or arthritis. The examiner did not consider whether the Veteran's diagnosed right ankle arthritis and tendonitis were related to the Veteran's left leg disability characterized as residuals of an old fracture of the tibia and fibula with degenerative joint disease of the left knee. However, in light of the September 2019 VA examiner's opinion that the Veteran's leg left condition predisposed the Veteran to arthritis of his right leg; the Board finds that it is at least as likely as not that the Veteran's left leg disability produced an overload and injury to the Veteran's right ankle, predisposing the Veteran to developing his right ankle arthritis, and causing overuse of the right ankle, resulting in the Veteran's right ankle tendinosis. The Board essentially finds that the evidence is in equipoise as to whether the Veteran's right ankle disability is related to service. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). "Congress has not mandated that a medical principal must have reached the level of scientific consensus to support a claim for veterans benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Instead, Congress adopted a "low standard of proof" for VA to employ to "resolve a scientific or medical question in the claimant's favor so long as the evidence for and against that question is in 'approximate balance.'" Id. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. Resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that the evidence of record supports a finding that service connection for tendinosis and arthritis of the right ankle is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for neuropathy of the left leg The Board has carefully reviewed the evidence of record and finds that, based upon a preponderance of the evidence, the criteria for service connection for neuropathy of the left leg on any basis are not met, to include as secondary to his service-connected disabilities, including his left knee disability. See 38 C.F.R. § 3.310. At the outset, the Board notes that a current diagnosis of neuropathy of the left lower extremity has been established. See April 2021 VA examination; September 2019 VA examination (diabetic peripheral neuropathy); July 2010 VA treatment record (diabetes mellitus with history of peripheral neuropathy); February 2015 VA treatment record (diabetic neuropathy). Service treatment records are silent as to any complaints, treatment, or clinical diagnosis for neuropathy of the left leg. However, as noted the Veteran's personnel records have been destroyed; thus, the Board has a heightened obligation to carefully consider the benefit-of-the-doubt rule; and the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See O'Hare, supra; Buchanan, supra; Barr, supra. However, the Board notes that the evidence does not demonstrate, that the Veteran's neuropathy of the left leg occurred during a period of qualifying service. The Veteran asserts his neuropathy of the left leg was due to his service-connected left knee disability and his left ankle arthritis. The Veteran has also asserted that his neuropathy of the left leg had its onset in the 1950s. To the extent that the Veteran is also asserting that his neuropathy of the left leg had its onset during service, the Board finds that assertion is not credible. The Veteran has made contradictory statements regarding the onset of his symptoms of neuropathy of the left leg. Initially, the Veteran reported that he had been having left leg pain ever since he had two back surgeries in 1984 after falling and injuring his back. The Veteran reported that his pain went from the middle of his left leg to his ankle, as well as numbness and tingling at the bottom of his foot from at least May 2016. Post-service treatment records reflect that the Veteran was initially treated for complaints of tingling and numbness of the left lower extremity from at least March 2004. The Veteran did not report that his symptoms of neuropathy of the left leg had its onset in the 1950s until the April 2021 VA examination. Thus, the Board finds that the Veteran's recent statement that the symptoms of his neuropathy of the left leg, including numbness and tingling of the left lower extremity had its onset during a period of service, lacks credibility. Layno, supra. See 38 C.F.R. § 3.159(a)(2). Buchanan, supra. Based on a preponderance of the evidence, the Board finds that there is no nexus between the Veteran's current neuropathy of the left leg and service. In September 2019, a VA examiner opined that it was less likely than not that the Veteran's diagnosed neuropathy of the left leg was related to service; and opined that the Veteran's left leg fracture and degenerative joint disease had no bearing on his complaints of neuropathy in the left leg. The examiner noted that the Veteran's neuropathy was not confined to his left leg; and he also had diabetic peripheral neuropathy of the bilateral upper and lower extremities, which included tingling and numbness of both hands up to his elbows and pain and tingling and numbness in his feet and legs up to his knees. In July 2020, a VA examiner opined that it was less likely than not that the Veteran's left leg neuropathy was proximately due to, the result of, or aggravated by the Veteran's service connected disabilities, including his left knee disability, right knee disability and left ankle disability. The examiner noted that neuropathy following fracture of the leg is rather uncommon and usually will manifest immediately or shortly after such fracture, which was not the case with the Veteran. The examiner noted that arthritis of the knee or the ankle would not lead to neuropathy of the leg. The examiner opined that the Veteran's neuropathy was, as indicated in his medical records, due to his diabetes mellitus. In April 2021, a VA examiner opined that the Veteran's diagnosed bilateral leg neuropathy was less likely than not incurred in service; and was less likely than not proximately due to, the result of, or aggravated by the Veteran's service-connected left knee disability. The examiner noted that the Veteran also had degenerative disc disease and degenerative joint disease of the back as well as diabetes mellitus, which the examiner opined were more likely to have affected the nerves of the legs, as opposed to arthritis in the leg bone and joints. The examiner opined that worsening of either his back conditions or his diabetes would be more likely to cause aggravation than arthritic changes in the leg or joints. The September 2019, July 2020 and April 2021 VA opinions, combined with the other evidence of record including the VA treatment records, private treatment records, and lay evidence, establish that the Veteran's neuropathy of the left leg is not related to service. There is no contrary medical opinion of record. (Continued on the next page) In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. The Board notes that under the provisions of 38 U.S.C. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Gilbert, supra. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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.