Citation Nr: 22014804 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 16-59 727 DATE: March 15, 2022 ORDER Entitlement to service connection for a lumbar spine disorder as secondary to a service-connected right ankle disability is granted. REMANDED Entitlement to service connection for a right knee disorder as secondary to either a service-connected right ankle or lumbar spine disability is remanded. FINDING OF FACT The evidence of record is in relative equipoise that the Veteran's lumbar spine disorder is proximately due to her service-connected right ankle disability. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder as secondary to a service-connected right ankle disability have been met. 38 U.S.C. §§ 101 (24), 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air National Guard from June 1987 to August 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal of a January 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a November 2021 videoconference hearing, and a transcript of this hearing is associated with the claims file. 1. Entitlement to service connection for a lumbar spine disorder as secondary to a service-connected right ankle disability is granted. Service connection will be granted if the evidence in the record demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. The Veteran is competent to report symptoms she has experienced. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, she is not considered competent to medically attribute such symptoms to any particular disability because such is a complicated medical issue that requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006). The Veteran contends that her lumbar spine disorder was caused when her right ankle gave out and twisted, causing her to fall and injure her back. The Veteran underwent a VA examination in December 2013. The examiner noted the Veteran was diagnosed with a bulging disc in 1996 and had a history of back surgery. The Veteran reported that her back injury was a result of falling due to her service-connected right ankle giving way. The examiner opined the Veteran's back disorder was related to the natural progression of an injury subsequent to service. Additionally, the examiner found that while the Veteran reported her back injury was related to a fall caused by her service-connected right ankle, the Veteran's ankles had symmetrical laxity with good end points. She was also able to stand on her toes and her heels, as well as conduct inversion and eversion of the ankles. The Veteran's private treatment records show that she was treated for a herniated disc in January 1997 that was related to a fall caused when she twisted her right ankle and her back. The treating physician noted the Veteran reported numbness and pain in her right lower extremity and the diagnosis of a severe ankle sprain. She also reported experiencing back pain from the center of her lumbar area to her right hip that felt tight and swollen. She was eventually diagnosed with a bulging disc in her lumbar spine. In her November 2021 hearing testimony, the Veteran explained that while she was walking during her guard check at her job, her right ankle gave out and she injured her back while trying to prevent herself from falling. She also explained that her physician found that her herniated disc was caused by her right ankle sprain that caused her to fall. After reviewing the record, the Board finds that the persuasive weight of the evidence is in relative equipoise that the Veteran's lumbar spine disorder is secondary to her service-connected right ankle disability. The Veteran has a current diagnosis of a bulging disc, and therefore the first element of service connection has been met. The Veteran also has a service-connected right ankle disability, and thus the second element of service connection on a secondary basis has been met. Thus, the remaining element is that of a nexus between the Veteran's lumbar spine disability and her service-connected right ankle disorder. The Board finds that the December 2013 examination is inadequate. Although the examiner briefly addressed the Veteran's contention that she injured her back after falling due to her right ankle giving out, the examiner failed to provide adequate rationale as to how symmetrical ankle laxity would show the Veteran could not fall due to her right ankle disability. Additionally, the examiner alleges the Veteran's lumbar spine condition is due to the natural progression of an injury that was subsequent to service but failed to provide any support for this finding, especially given the Veteran's medical records explicitly show a fall that resulted in a severely sprained right ankle and herniated disc. Because the examiner failed to provide adequate rationale for their opinion, the Board affords this opinion no probative weight. The Board notes that the Veteran's private treatment records do note a severe right ankle sprain and herniated disc that occurred from the same fall. The treating physician's notes allude to the Veteran's herniated disc being related to her right ankle sprain, but a nexus opinion was never provided. Although there is not a positive medical nexus opinion in the record, the Board believes that there is sufficient evidence of record to establish that the Veteran's lumbar spine disorder began when she fell after her service-connected right ankle gave way. As noted above, the Veteran provided competent lay testimony describing the circumstances surrounding the fall where she injured her back. Further, the Board notes that the Veteran's private treatment records corroborate her testimony that her right ankle and back were injured during the same incident and implicate a connection between the two injuries. Therefore, after resolving any reasonable doubt in the Veteran's favor, all elements of service connection have been met. Accordingly, service connection for a lumber spine disorder as secondary to a service-connected right ankle disability is granted. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disorder as secondary to either a service-connected right ankle or lumbar spine disability is remanded. The Veteran contends that her right knee disorder is either related to her service-connected right knee disability or her now service-connected lumbar spine disability. The Veteran underwent a VA examination in December 2013. The examiner found no diagnosed right knee disorder, but they did note the Veteran reported chronic medial joint line pain. The Veteran also reported suffering from falls due to her service-connected right ankle. The examiner opined the Veteran's right knee disorder was less likely than not secondary to her service-connected right ankle disability because there were no documented complaints of pain in the Veteran's VA treatment records. Additionally, the examiner notes the Veteran is obese and finds that her right knee disorder is more likely due to the natural progression of an injury subsequent to service. As for the Veteran's right ankle causing her to fall, the examiner stated the Veteran's ankles had symmetrical laxity with good end points, and she could stand on her toes and heels, as well as conduct inversion and eversion. In her November 2021 hearing testimony, the Veteran stated that her right knee began to hurt about ten years after her back injury. She states she believes her right knee disorder is due to both her service-connected right ankle and her back disabilities because both disabilities impact her ability to walk properly. However, she did note that while her physicians had alluded to a possible connection between her right ankle disability and her right knee disorder, she was unsure if they ever noted a connection in her treatment records. After reviewing the evidence of record, the Board finds the December 2013 examination to be inadequate. While the examiner addressed whether the Veteran's right knee disorder was due to falls caused by her service-connected right ankle disability, the examiner failed to discuss why symmetrical laxity in the Veteran's ankles and the ability to stand on her toes and heels would mean that she could not fall. Additionally, the examiner did not address whether the Veteran's right knee disorder was aggravated by her service-connected right ankle disability. Furthermore, the Veteran has since been service-connected for a lumbar spine disability, and she has indicated that this disability has affected how she walks and believes it may aggravate her right knee disorder. Although the Veteran provided additional statements concerning her right knee disorder and has herein been granted service connection for a lumbar spine disability subsequent to the December 2013 examination, this evidence must still be taken into consideration when determining the etiology of her claimed right knee disorder. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, remand is necessary in order to obtain a new examination. Accordingly, this matter is REMANDED for the following action: 1. Schedule the Veteran for an examination with a qualified examiner in order to determine the nature and etiology of the Veteran's right knee disorder. The examiner must conduct a thorough review of the claims file, including the Veteran's testimony at her November 2021 hearing address, and must provide a diagnosis for each right knee disorder found to be present, including pain that leads to functional loss but does not otherwise have a diagnosis. For each such disability, the examiner must provide thorough responses to each of the following: (a.) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's right knee disorder is proximately due to her service-connected right ankle disability. (b.) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's right knee disorder is aggravated by her service-connected right ankle disability. (c.) Whether it is at least as likely as not that the Veteran's right knee disorder is proximately due to her service-connected lumbar spine disability. (d.) Whether it is at least as likely as not that the Veteran's right knee disorder is aggravated by her service-connected lumbar spine disability. In rendering these conclusions, the examiner is reminded that the Veteran is competent to report symptoms of a knee disorder and of falling. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.