Citation Nr: 22016435 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 16-04 324 DATE: March 22, 2022 ORDER Entitlement to service connection for a left ankle disability is granted. REMANDED Entitlement to service connection for a respiratory disability is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDING OF FACT The evidence shows that the Veteran's left ankle disability first manifested during and was caused by events during his military service. CONCLUSION OF LAW The criteria for service connection for a left ankle disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army on active duty from January 1971 to January 1973. The Veteran also served thereafter in the Army National Guard. This appeal comes to the Board of Veterans' Appeals (Board) a September 2014 rating decision by the Veterans Benefits Administration (VBA). The Board remanded these matters in February 2020 and October 2020 to attempt to obtain outstanding relevant treatment records and adequate VA examinations. Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310. This includes disability made chronically worse by a service-connected disability. Service connection for chronic diseases listed in 38 U.S.C. sections 1101(3) and 38 C.F.R. § 3.309(a) may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Such diseases include arthritis and cardiovascular-renal disease, including hypertension. (This term applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1-year period will be given the same benefit of service connection as any of the chronic diseases listed). VA examinations have confirmed the Veteran has several current disabilities of the left ankle, which account for his functional impairment of earning capacity due to pain. See, e.g., June 2021 VA ankles examination. In October 2020, the Board found a February 2015 VA examiner's negative nexus opinion did not adequately address many documented reports of ankles injuries during the Veteran's military service. On remand, VBA obtained a positive nexus opinion from a second VA examiner in February 2021, who used new X-rays reports of the Veteran's ankles to support a finding that the Veteran experienced residuals of a left ankle sprain and avulsion fracture sustained during his active duty service. VBA obtained an opinion from a third VA examiner in January 2022 to clarify the extent to which each specific ankle diagnosis is related to the Veteran's military service. However, the examiner disagreed with the prior positive opinion and offered a negative opinion for all conditions. The Board affords less probative value to the February 2015 and January 2022 opinions because they rely heavily on lack of follow-up treatment for symptoms for many years following the Veteran's service. They do not adequately address the possibility of a delayed onset or worsening of symptoms over time, and they do not address substantial evidence of a link between the in-service injury and current findings on the X-ray reports. For example, while the Veteran's enlistment examination shows no reports of abnormal ankle findings, both the Veteran's X-ray report at the time of his June 1972 left ankle injury and a follow-up report in February 2021 show a bone density adjacent the lateral malleolus, which the reports describe as an "os subfibulare" in the earlier report and an "ossific fragment" in the later report. The February 2021 examiner's opinion indicates the findings are substantially similar and explains that an avulsion fracture will often take the appearance of "os subfibulare" on imaging. The Board ultimately affords more probative value to the February 2021 opinion as it is supported by compelling radiographic imaging evidence and the Veteran's statements about continuity of relevant symptoms over time. The Board finds no compelling basis in the evidence to distinguish ankle limitations from the residuals of the in-service injury from other left ankle limitations including any attributable to tibial tendonitis, which the examiner indicated was more consistent with an obesity-related ankle injury. The Board ultimately finds that the Veteran's current functional impairments of earning capacity of the left ankle are attributable to the residuals of the in-service injury. Accordingly, the Board grants entitlement to service connection for a left ankle disability. REASONS FOR REMAND In the October 2020 remand order, the Board instructed VBA to obtain an opinion that addresses the etiology of all of the Veteran's respiratory disabilities during the period on appeal. However, the February 2021 negative nexus opinion VBA obtained only addresses diagnoses of COPD and interstitial lung disease without adequately addressing the other diagnoses the Board listed in the remand order, which are supported by the treatment records. See, e.g., February 2019 and July 2019 entries in the Veteran's VA treatment records. The examiner also did not also assess the probability that the Veteran's COPD manifested during the Veteran's service, to include as a result of cigarette smoking as the Board instructed. Instead, the examiner's negative opinion relies largely on the fact that the Veteran did not obtain treatment for COPD or a diagnosis for COPD until decades after his separation. The opinion does address the possibility of a delayed onset of worsening symptoms over time as an explanation for the Veteran's delay in seeking treatment. On remand, VBA should obtain an addendum opinion addressing these concerns. In the October 2020 remand order, the Board also instructed VBA to obtain opinions on the etiology of the Veteran's heart and right ankle disabilities. The VA heart examiner indicated the Veteran's service treatment records did not contain relevant evidence of in-service symptoms of a heart disability. However, the Veteran's service treatment records document reports of chest pain including in January 1971, and the February 2021 VA heart examiner found the Veteran's diagnoses include coronary artery disease and angina, which manifests with symptoms including chest pain. On remand, VBA should obtain an opinion addressing the probability that the chest pain during the Veteran's military service was a manifestation of the current heart disabilities with consideration of the Veteran's statements about the history of his chest pain over time. Both the VA heart examiner and the right ankle examiner attributed the Veteran's coronary artery disease and right ankle disabilities in part to his weight gain and obesity. However, neither examiner addressed evidence in the record suggesting that the Veteran's service-connected-disabilities caused or aggravated his obesity. For example, the Veteran's VA treatment records indicated his treatment providers counseled him on the effects his medications may have on his weight gain. See, e.g., March 2014 Move Group Counseling Note in the Veteran's VA treatment records. The VA treatment records also document that the Veteran reported difficulty in maintaining motivation towards weight loss in part because of his service-connected depression and limitations associated with his COPD. See, e.g., January 2019 Initial Assessment for COPD and March 2014 PCMHI Follow-Up Note in the Veteran's VA treatment records. On remand, VBA should obtain medical opinions assessing the extent to which the Veteran's service-connected disabilities (e.g. depression), respiratory disabilities (e.g. COPD), and medications have caused or aggravated the Veteran's obesity. See Garner v. Tran, 33 Vet. App. 241 (2021). Finally, the previous examiners were asked to opine if it was "at least as likely as not (a 50 percent or greater probability)" that the Veteran's disabilities were connected to service. This language found in the previous remands entitled the Veteran to the benefit of the doubt if the evidence was in equipoise. Following direction from the United States Court of Appeals for the Federal Circuit in Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021), the proper standard of review is whether the factors are in an "approximate balance." Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance - i.e. nearly equal - and does not require the evidence to be in exact equipoise. See id. VBA should ensure each examiner is aware of the correct standard under Lynch. The Board REMANDS these matters for the following actions: 1. VBA should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. VBA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After associating all outstanding relevant records with the Veteran's claims file, VBA should obtain additional VA examinations of the etiology of the Veteran's respiratory, cardiovascular, and right ankle disabilities. VBA should provide each examiner with a complete copy of the claims file, to include this remand order. VBA should ensure the examination opinions address the following concerns: (a.) The VA examiners should identify all respiratory, cardiovascular, and right ankle disabilities that the Veteran has experienced during the period on appeal based on a review of the claims file and examinations of the Veteran (if the examiners determine additional examinations are necessary). Relevant respiratory diagnoses in the record include (but are not limited to): COPD, bronchitis, acute bronchitis, active bronchitis, emphysema, acute and chronic inflammatory/fibrotic changes throughout the lungs (with bronchitis and probably reactive lymph nodes), and a noncalcified ground glass nodule in the right upper lobe. See October 2020 Board remand order; February 2019 and July 2019 entries in the Veteran's VA treatment records. Relevant cardiovascular diagnoses in the record include (but are not limited to) coronary artery disease and unstable angina. See, e.g., February 2021 VA heart examination. Relevant right ankle diagnoses in the record include (but are not limited to) calcaneal spurs and a lateral collateral ligament sprain. See, e.g., June 2021 VA ankles examination; February 2015 VA ankles examination. If an examiner disagrees with any prior diagnoses in the record, the examiner should state the basis for the disagreement with citation to supporting evidence. (b.) In regard to each disability, the examiners should address whether it is at least as likely as not (at least an approximate balance of negative and positive evidence) that the disability first manifested during or was otherwise caused by the Veteran's military service. The examiners should discuss the significance of documented reports of ankle complaints, chest pain, and respiratory difficulties in the Veteran's service treatment records. The examiners should consider the Veteran's reports of continuity of relevant symptoms over time. The examiners should consider a delayed onset or worsening of symptoms over time as an explanation for any delay in seeking treatment. (c.) In regard to the Veteran's heart disabilities and any diagnoses of arthritis of the right ankle, the examiners should opine whether it is at least as likely as not (at least an approximate balance of negative and positive evidence) that the disability manifested to a compensable degree within one year of the Veteran's separation from active duty military service. See 38 C.F.R. § 3.309(a). (d.) In regard to the Veteran's obesity, the examiners should opine whether it is at least as likely as not (at least an approximate balance of negative and positive evidence) that the Veteran's service-connected disabilities caused or aggravated the obesity. Temporary aggravation may suffice for secondary service connection. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiners should discuss the extent to which the Veteran's reduction in activity levels due his disabilities contributed to weight gain and obesity. The examiners should discuss the extent to which weight gain and obesity may be a side effect of the Veteran's medications. See Garner v. Tran, 33 Vet. App. 241 (2021). (e.) If an examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or the examiner. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.