Citation Nr: 22011126 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 17-49 034 DATE: February 25, 2022 ORDER Entitlement to service connection for a breathing condition is denied. Entitlement to service connection for a right foot condition as secondary to service-connected bilateral ankle sprains is denied. REMANDED Entitlement to service connection for a left knee condition as secondary to service-connected bilateral ankle sprains is remanded. FINDINGS OF FACT 1. The most probative evidence of record persuasively weighs against a finding that the Veteran has a current breathing disability for VA purposes. 2. The most probative evidence of record persuasively weighs against a finding that the Veteran's right foot condition(s) is proximately due to, related to, or otherwise etiologically associated with or aggravated by his service-connected bilateral ankle sprains. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a breathing disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right foot disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. INTRODUCTION The Veteran served honorably on active duty in the United States Army during Peacetime, from December 1960 to November 1962. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2016 and April 2016 Rating Decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified at a hearing before a Decision Review Officer (DRO) in November 2017. He also testified at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2020. Transcripts of the hearings are of record. When these matters came before the Board most recently in July 2021 they were remanded for additional development, specifically, to afford the Veteran VA examinations and procure medical nexus opinions. The additional development has been conducted and the matters return to the Board for further appellate review. Please note that this appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). While further delay is regrettable, for the reasons set forth below, the Board finds remand is again required regarding the claim for entitlement to service connection for a left knee condition to ensure substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Generally, service connection requires: (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, the so-called "nexus" requirement. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Additionally, service connection may be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). If a chronic disease enumerated in 38 C.F.R. § 3.309(a) is diagnosed after separation from service, the nexus requirement of a claim for service connection can be proven by evidence of a continuity of symptomology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to establish entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Further, the Board must determine whether the evidence persuasively favors the claim or if there is an approximate balance of positive and negative evidence (i.e., relative equipoise) regarding any issue material to the determination of a matter, with the Veteran prevailing in either event, or whether the evidence persuasively weighs against the claim in which case it must be denied. See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); see also 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board has reviewed the entire record but only evidence pertinent to the determination of the Veteran's service connection claims will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). Entitlement to service connection for a breathing condition is denied. The Veteran asserts service connection is warranted for a breathing condition which, he contends, is due to exposure to chemicals and/or asbestos. For the reasons set forth below, the Board finds the most probative evidence of record persuasively weighs against the Veteran's claim. A service treatment record (STR) dated September 1960 notes a prior "questionable" and "minor case of tuberculosis" prior to military service in 1951. In December 1960, an STR notes the Veteran complained of "cough [and] cold" for four days and streptococcus was to be ruled-out. Shortly after his active duty discharge, a Report of Medical Examination dated April 1963 indicates normal lungs and chest. In April 2016, the Veteran underwent an in-person VA examination regarding his claim. According to the VA examiner, chest x-rays were reportedly negative; however, pulmonary function testing (PFT) revealed a post-bronchodilator Forced Expiratory Volume in one second (FEV-1) 70 percent of predicted. The VA examiner indicated the Veteran has never been diagnosed with a respiratory condition and does not have one currently. Although the VA examiner rendered a negative medical nexus opinion, the Board's August 2020 remand decision found the opinion inadequate for adjudication purposes. Regarding the private positive medical nexus opinion authored by Dr. M.G. in April 2020 (added to the record May 2020), the Board's August 2020 remand decision expressed there was no indication Dr. M.G. reviewed the claims file prior to rendering the opinion or was otherwise familiar with the Veteran's military history, and found the opinion conclusory in nature and lacking adequate rationale, including supporting data and a reasoned medical explanation. See Nieves-Rodriguez, 22 Vet. App. 295; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Significantly, while Dr. M.G. references "shortness of breath" generally, the Board finds his opinion as to the presence of a current breathing disability is likewise conclusory and lacks adequate rationale, supporting data, and a reasoned medical explanation and, therefore, is entitled to no probative weight. Id. The Veteran underwent another in-person VA examination in October 2020 (added to the record May 2021). According to the VA examiner, while the presence of hyperinflation and the need for clinical correlation is noted in the PFT report, the impression was a "normal" PFT. Again, according to the VA examiner, the Veteran has never been diagnosed with a respiratory condition and does not have one currently. Although the VA examiner rendered a negative medical nexus opinion, the Board's July 2021 remand decision found the opinion inadequate for adjudication purposes. Thereafter, the Veteran underwent yet another in-person VA examination in August 2021 during which chest x-rays were reported as normal. Again, according to the VA examiner, the Veteran has never been diagnosed with a respiratory condition and does not have one currently. An addendum VA examination report was authored by a different examiner in November 2021. According to the VA examiner, "the Veteran actually does not have a diagnosable breathing condition as of 2021" and his "shortness of breath has no specific diagnosis associated with it and no established cause." Further, the examiner reported that, when the record is taken in its entirety the shortness of breath, the tobacco cigarette use, the slightly abnormal PFT in 2016 that resolved to Normal as of 2021 after significant weight loss, and the hyperinflation noted in 2021 no specific respiratory diagnosis can be definitively established. The Board assigns significant probative weight to the VA examiners' opinions finding no current breathing disability. Specifically, the opinions contain not only clear conclusions with supporting data; but also, reasoned medical explanations connecting the two. Moreover, the opinions are based upon a comprehensive review of the claims file, an in-person examination of the Veteran, the Veteran's self-reports, and the examiners' expertise. The VA examiners' competent opinions are also not inconsistent with the other medical evidence of record. The Board has reviewed and considered the medical treatment evidence of record. VA treatment notes as recent as November 2021 do not reference a breathing condition among the Veteran's active problems or the use of medications for such condition. Also, for example, VA treatment records dated January 2010, March 2014, April 2015, April 2016, and April 2018 report no cough, wheezing, or shortness of breath. The Board has also reviewed and considered the lay evidence of record, including the Veteran's written statements and testimony to the DRO and before the undersigned VLJ regarding, for example, in-service events and in-service and post-service symptomology. While the Veteran is competent to attest to his in-service experiences and observable symptoms, in light of the absence of corroborating medical evidence of a current breathing disability, the Board assigns greater probative weight to the medical evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). In the absence of a current disability, there can be no valid claim. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In sum, the most probative evidence persuasively weighs against a finding that the Veteran has a breathing disability. Since the most probative evidence persuasively weighs against the claim, the provisions of 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 regarding reasonable doubt are not applicable. The claim for entitlement to service connection for a breathing disability must be denied. Entitlement to service connection for a right foot condition as secondary to service-connected bilateral ankle sprains is denied. The Veteran seeks entitlement to service connection for a right foot condition which he attributes to his service-connected bilateral ankle sprains. During the March 2020 hearing, the Veteran and his representative clarified they are claiming entitlement based upon a secondary service connection theory only, and the issue on appeal has been recharacterized accordingly. For the reasons set forth below, the Board finds the most probative evidence of record persuasively weighs against the Veteran's claim. VA treatment records include a July 2015 x-ray report noting "[f]indings are suggestive of an erosive arthritis such as gout." Subsequent treatment records include gout among the Veteran's active medical problems and reflect treatment with Allopurinol. VA examination reports dated August 2021 and November 2021 also confirm the presence of right foot conditions. As such, the Board finds the Veteran possesses a current right foot disability. See Holton, 557 F.3d at 1366; Shedden, 381 F.3d at 1166-67. Pursuant to the Board's July 2021 remand directives, the Veteran underwent an in-person VA examination in August 2021, at which time the examiner rendered a positive medical nexus opinion. According to the VA examiner, the Veteran had no right foot issues prior to military service, his "[c]urrent diagnosis of chronic ankle sprain is related to the right ankle injury," and "[t]here is evidence of chronicity and a nexus has been established." The Board finds the VA examiner's abbreviated opinion rationale is conclusory in nature, not fully articulated, and lacks clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Miller v. West, 11 Vet. App. 18, 22 (2007); McCray v. Wilkie, 31 Vet. App. 243, 257 (2019). Thus, the Board is unable to conclude that the VA examiner relied upon sufficient facts or data, or that her opinion is the product of reliable principles and methods applied to the pertinent facts of this case. See McCray, 31 Vet. App. at 257. Because the August 2021 opinion was not rendered by a physician (as the Board directed), was silent regarding previously reported hammertoes, and otherwise contained "discrepancies," the RO requested the November 2021 addendum report which, unlike the prior examiner's reports, contains negative nexus opinions upon which the RO based its most recent denial (i.e., December 2021 Supplemental Statement of the Case (SSOC)). According to the VA examiner's addendum opinion, hammertoes are not identified by any medical provider "at any time except the single Foot [Disability Benefits Questionnaire (DBQ)] dated 10/2020 (signed 5/2021)," including the subsequent August 2021 examination report. While the VA examiner notes "evidence for gouty change in the great toes bilaterally," she also reports "no mention of hammertoes in the record other than the one Foot DBQ" and opines the diagnosis of hammertoes "was in error." The VA examiner indicates current diagnoses include gout and metatarsalgia (i.e., toe pain). Further, the VA examiner states that the Veteran's "metatarsalgia begins many years after time in service, due to gout, not due to past ankle strains/ankle weakness." According to the examiner, metatarsalgia "is a common manifestation" of gout, which the Veteran has had "since at least 2010" and that, "[d]ifficulty with rolling ankles or weak ankles, as residual from ankle strains in service, would not result in toe pain metatarsalgia unless direct injury to the toes." Moreover, the VA examiner reports that, "[l]ikewise, ankle weakness due o [sic] prior strains has no bearing on later development on gout." According to the examiner, "[g]out is a systemic disorder of uric acid production and/or deposition, having no pathophysiologic relationship to localized/specific prior joint damage" and, therefore, it is "not possible that Veteran's service connected ankle conditions caused [his] [g]out or metatarsalgia." Regarding possible aggravation of the Veteran's right foot gout or metatarsalgia due to service-connected bilateral ankle sprains, the VA examiner notes that, while "[g]out can also certainly be affecting the ankle joints," as of 2015, "both ankles have normal [range of motion (ROM)] and full strength." As a result, although the examiner acknowledges the Veteran's self-reports of "ankle pain and 'rolling' of the ankles," she reports that, based in part upon 2015 ankle x-rays revealing "very mild degenerative ankle joint changes," the evidence "does not support that Veteran [sic] left or right ankle conditions have adversely affected [his] left or right foot." According to the VA examiner, the Veteran's gout "has continued and progressed as normal for the disorder," including "erosive changes of the great toes" and "without evidence for aggravation beyond normal course due to any cause, including [his] bilateral ankle strains/weakness." The Board assigns significant probative weight to the VA examiner's opinion finding no etiological relationship between the Veteran's service-connected bilateral ankle sprains and his right foot gout and metatarsalgia. Specifically, the opinion contains not only clear conclusions with supporting data; but also, reasoned medical explanations connecting the two. See McCray, 31 Vet. App. at 257; Nieves-Rodriguez, 22 Vet. App. 295. Moreover, the opinion is based upon a comprehensive review of the claims file, the Veteran's self-reports, and the examiner's expertise. The VA examiner's competent opinion is also not inconsistent with the medical treatment evidence of record. Again, the Board has also reviewed and considered the lay evidence of record, including the Veteran's written statements and testimony to the DRO and before the undersigned VLJ regarding, for example, causation and symptomology. While the Veteran is competent to attest to his observable symptoms and functional limitations, in light of the absence of corroborating medical evidence suggesting an etiological relationship between the Veteran's service-connected bilateral ankle sprains and his right foot gout or metatarsalgia, the Board assigns greater probative weight to the medical evidence of record. See Jandreau, 492 F.3d 1372. In sum, the most probative evidence persuasively weighs against a finding that the Veteran's right foot conditions are proximately due to, related to, or otherwise etiologically associated with or aggravated by his service-connected bilateral ankle sprains. Since the most probative evidence persuasively weighs against the claim, the provisions of 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 regarding reasonable doubt are not applicable. The claim for entitlement to service connection for a right foot disability must be denied. REASONS FOR REMAND Entitlement to service connection for a left knee condition as secondary to service-connected bilateral ankle sprains is remanded. The Veteran seeks entitlement to service connection for a left knee condition which he attributes to his service-connected bilateral ankle sprains. During the March 2020 hearing, the Veteran and his representative clarified they are claiming entitlement based upon a secondary service connection theory only, and the issue on appeal has been recharacterized accordingly. A private medical nexus opinion authored by Dr. M.G. dated May 2020 states that, "[i]n my opinion, it is more likely than not that the ankle problem causes his ... knee disability." According to Dr. M.G., the Veteran's "ankle rolls causing stress/strain to his knee." However, the Board finds Dr. M.G.'s abbreviated opinion inadequate for adjudication purposes as it is conclusory in nature, not fully articulated, and lacks clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Miller, 11 Vet. App. at 22; McCray, 31 Vet. App. at 257. Thus, the Board is unable to conclude that the VA examiner relied upon sufficient facts or data, or that his opinion is the product of reliable principles and methods applied to the pertinent facts of this case. See McCray, 31 Vet. App. at 257. Pursuant to the Board's July 2021 remand directives, the Veteran was afforded an in-person VA examination in August 2021 and, thereafter, a different VA examiner authored a November 2021 addendum report. For the reasons set forth below, the Board finds both VA examiners' opinions inadequate for adjudication purposes and, consequently, there has not been substantial compliance with the prior remand directives such that remand is again required. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, 11 Vet. App. at 271. First, the August 2021 VA examiner's opinion rationale summarily states the Veteran had no left knee issues prior to military service, that his "[l]eft knee condition is likely aggravated by right ankle sprain," and that, "[t]here is evidence of chronicity and a nexus has been established." The Board finds the VA examiner's abbreviated opinion rationale is conclusory in nature, not fully articulated, and lacks clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Miller, 11 Vet. App. at 22; McCray, 31 Vet. App. at 257. Thus, the Board is unable to conclude that the VA examiner relied upon sufficient facts or data, or that her opinion is the product of reliable principles and methods applied to the pertinent facts of this case. See McCray, 31 Vet. App. at 257. Next, the Board finds the addendum opinion rationale fails to properly address and consider lay evidence of record regarding the Veteran's onset of left knee symptoms. See Dalton v. Peake, 21 Vet. App. 23 (2007). For example, while the VA examiner notes the Veteran "subjectively reports knee pain for years, exact number of years not specified in the record," her opinion is silent regarding the Veteran's September 2017 VA Form 9 indicating his left knee condition "started while in service," and his November 2017 DRO testimony that he first started noticing his knees "going ... back in the '80s." The Board also finds erroneous the examiner's generalized statement that, "the cause of those knee symptoms and any associated knee diagnosis cannot be established based on subjective reports alone." Further, the examiner's rationale that because the Veteran "did not have documented evaluations of the left knee until 2018, the etiology of any pain or other left knee symptoms [he] noted in the years after time in service cannot be determined with any certainty" relies heavily, if not exclusively, upon the passage of time between military service and diagnosis of left knee degenerative arthritis. The mere passage of time without medical evidence of a disorder, in these circumstances, is not itself a valid basis for a negative nexus opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Based upon the foregoing, the Board finds remand is again necessary so as to afford the Veteran another VA examination and procure medical nexus opinions adequate for adjudication purposes. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for an in-person VA orthopedic examination with a physician who has not previously offered an opinion in this matter and possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and likely etiology of the Veteran's left knee condition(s). The Veteran is competent to attest to factual matters of which he has first-hand knowledge such as observable symptomology and functional limitations. The examiner must obtain a full history from the Veteran. All pertinent symptomology, including when initially manifested and any progression, must be reported in detail. Based upon a review of all pertinent documents in the Veteran's claims file including medical treatment and examination records, lay statements, and the examination results, the examiner must offer an opinion based upon an accurate medical history with clear conclusions and supporting data and a reasoned medical explanation connecting the two as to whether it is at least as likely as not (i.e., 50 percent probability or greater) any of the Veteran's left knee conditions manifested during active duty service or within one year of discharge, or are proximately due to, related to, or otherwise etiologically associated with or aggravated by his service-connected left and/or right ankle sprains. The examiner is advised that aggravation does not require a permanent worsening of the condition, but rather, any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase. See Ward v. Wilkie, 31 Vet. App. 233 (2019). In offering the above opinions, the examiner must consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record including, but not limited to: (a.) the Veteran's September 2017 VA Form 9 stating his left knee condition "started while in service"; (b.) the Veteran's November 2017 testimony that he first noticed his left knee condition while working in the 1980s; (c.) the Veteran's March 2020 testimony that his service-connected bilateral ankle sprains "put a strain on" his knees and have caused him to fall on his knees; and (d.) x-ray report dated August 2021 revealing moderate osteoarthritis of left knee. The examiner is advised that, while a lack of supportive medical evidence is a relevant factor, the mere absence of evidence does not equate to unfavorable evidence. The Veteran's lay statements and reports of causation, onset, and symptomology must be considered and discussed. A complete and thorough rationale for all opinions expressed, with references to pertinent evidence of record and supportive medical literature, must be provided. (Continued on next page) T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.