Citation Nr: A25041264 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 210819-179068 DATE: May 6, 2025 ORDER Entitlement to service connection for right ankle collateral lateral ligament sprain is granted. Entitlement to service connection for right knee degenerative arthritis is granted. REMANDED Entitlement to service connection for left ankle collateral lateral ligament sprain, to include as due to service-connected disability, is remanded. Entitlement to service connection for left knee degenerative arthritis, to include as due to service-connected disability, is remanded. Entitlement to service connection for right hip degenerative arthritis, to include as due to service-connected disability, is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, her right ankle collateral lateral ligament sprain is related to her service. 2. Resolving all reasonable doubt in the Veteran's favor, her right knee degenerative arthritis is related to her service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ankle collateral lateral ligament sprain have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right knee degenerative arthritis have been met. 38 U.S.C. §§ 1110, 1131, 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 from November 1977 to November 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2020 by a Department of Veterans Affairs (VA) Regional Office. In the August 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the August 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. However, because the Board is remanding the claims of entitlement to service connection for left ankle, left knee, and right hip disorders, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to service connection for right ankle collateral lateral ligament sprain. 2. Entitlement to service connection for right knee degenerative arthritis. The Veteran contends entitlement to service connection for right ankle collateral lateral ligament sprain and right knee degenerative arthritis as onset in service and continuing since. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, 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). The Veteran is generally competent to report his own lay symptomatology but not to provide a medical diagnosis. 38 C.F.R. § 3.159(a)(2). Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465, 471 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation. Barr, supra. While the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, he is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Although medical evidence is generally necessary for a nexus to service, lay evidence can be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, or to link chronic in-service symptoms to the same diagnosed current disability, or as a substitute for a nexus. Jandreau, supra. A medical opinion must support its conclusion with an analysis that the Board can consider and weigh, as it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The benefit-of-the-doubt rule applies when the evidence is in approximate balance or nearly equal. Lynch v. McDonough, 21 F.4th 776 (2021). As favorably found by the AOJ, the Veteran has a current right ankle disability diagnosed as collateral lateral ligament sprain by a VA examiner and a current right knee disability diagnosed as degenerative arthritis by a VA examiner. The Board is cognizant that in the rating decision on appeal, the AOJ also made a favorable finding that the Veteran has a current disability of degenerative joint disease of the right and left ankles, stating that such was diagnosed at a December 2019 VA examination. This favorable finding is binding on the Board unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. 38 C.F.R. § 3.104(c). However, the VA examiner did not diagnose degenerative joint disease of the bilateral ankles at the December 2019 VA examination. While there may be notations of possible osteoarthritis of the Veteran's ankles in the VA medical treatment records, diagnostic imaging refutes these suggestions. X-ray reports of both ankles taken in 2005 did not show degenerative joint disease. X-ray reports of both ankles taken at the December 2019 VA examination also did not show degenerative joint disease. Again, the December 2019 VA examiner did not diagnose degenerative joint disease of the right or left ankle. Consequently, the Board finds this evidence rebuts the favorable finding by the AOJ and shows a clear and unmistakable error in the favorable finding that the Veteran has right and left ankle degenerative joint disease. Rather, the Veteran has current right and left ankle disabilities diagnosed as ankle collateral lateral ligament sprains. As favorably found by the AOJ the evidence shows a qualifying event, injury, or disease had its onset during service as confirmed by service treatment records. Service treatment records show the Veteran received treatment for her ankles in January 1978, February 1980, and March 1980. She reported a history of knee problem in March 1987. She received treatment for her right ankle in April 1990, January 1994, and March 1994. Specifically at the January 1994 visit, the provider diagnosed chronic mild ligament sprain of the right ankle noting it was chronic by history. At the March 1994 visit, she also received treatment for her right knee. She received treatment for her right knee again in April 1994. At a May 1997 medical evaluation board examination, the Veteran reported a history of swollen and painful ankles, recurrent ankle problems, and right knee problems. The examiner noted various musculoskeletal problems treated as needed on the medical history form. The examiner did not note any diagnoses or defects of the Veteran's right knee or right ankle at the examination. The Veteran also underwent another examination in June 1997 which was silent for any diagnoses or defects of the Veteran's right knee or right ankle. She did not provide any additional medical history regarding her right knee or right ankle at the June 1997 examination. Within a year of her separation, the Veteran underwent two VA examinations in February 1998. She reported right knee and ankle pain going as far back as basic training, which she attributed to running with boots on. She said her right ankle ached weekly and her right knee pain also occurred weekly. She had functional gait and adequate muscle strength without any obvious abnormalities of the right knee or right ankle. The VA examiner diagnosed a normal right knee and ordered X-rays. The second VA examiner who saw the Veteran later in February 1998 also noted that she would been evaluated by orthopedics for her right knee and right ankle complaints. However, the record reflects a VA examination with an orthopedist did not occur as part of the claim development in 1998. VA medical records show the Veteran reported knee and feet pain in March 2001 and a few days later at an office visit she reported difficulty walking, knee joint stiffness and pain. She related this pain to recently exercising improperly, as noted in earlier office visits. On examination there was bilateral minimal effusion of the knees, and she was referred to physical therapy. She continued to discuss knee and ankle pain with her VA providers periodically, eventually being referred to rheumatology to rule out rheumatoid arthritis. The Veteran has also consistently reported throughout her claim that her right knee and right ankle pain onset during service and continued after service. In reliance on the service treatment records, February 1998 VA examinations, VA medical treatment records, and the Veteran's lay statements, the Board finds that there has been chronicity of the Veteran's right knee and ankle disabilities which onset during service with continuity of symptomatology since service. In August 2020 a VA physician assistant reviewed the record and provided a negative medical opinion regarding direct service connection for the Veteran's right knee and right ankle. As to the right ankle, the VA physician assistant stated that there were only two service treatment records documenting complaints and treatment for right ankle pain, that the June 1997 examination noted recurrent ankle pain, but that there were no documented complaints or treatments for the ankles after service until 2009 which does not establish continuity of care or chronicity of symptoms. The Board finds this medical opinion to be inadequate as it relies on inaccurate facts regarding the right ankle. As noted above, the Veteran received treatment for her right ankle more than two times during service, reported right ankle pain again at the February 1998 VA examinations, and reported right knee ankle pain again to her VA provider in 2001. Consequently, the Board cannot consider the August 2020 VA physician assistant's medical opinion as it relates to the Veteran's right ankle. As to the right knee, the VA physician assistant provided a negative opinion as to right knee pain and another negative opinion as to right knee arthritis. Regarding right knee pain, the VA physician assistant stated that service treatment records showed one visit for right knee pain, noted the June 1997 medical history stating locked right knee, and noted that there was no complaint or treatment of the right knee after service until 2004. The VA physician assistant concluded stating that this did not support chronicity of the condition or continuity of care. As to right knee arthritis, the VA physician assistant's rationale focused on the date of the left knee arthritis diagnosis. Assuming the VA physician assistant meant the date of the right knee arthritis diagnosis, the Board finds this opinion inadequate as it is based on inaccurate facts regarding the right knee. As noted above, the Veteran received treatment for her right knee more than once during service, reported right knee pain again at the February 1998 VA examinations, and reported right knee pain again to her VA provider in 2001. Consequently, the Board cannot consider the August 2020 VA physician assistant medical opinion as it relates to the right knee. Upon review and resolving all reasonable doubt in the Veteran's favor, the Board finds her right ankle collateral lateral ligament sprain and right knee degenerative arthritis are related to her service. The service treatment records, February 1998 VA examinations, and VA medical records are consistent with her reports of chronic and continuous right knee and ankle pain onset during service and continuing since. Consequently, service connection right ankle collateral lateral ligament sprain and right knee degenerative arthritis are warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, 21 F.4th 776. REASONS FOR REMAND 1. Entitlement to service connection for left ankle collateral lateral ligament sprain. 2. Entitlement to service connection for left knee degenerative arthritis 3. Entitlement to service connection for right hip degenerative arthritis. The Veteran contends entitlement to service connection for left ankle collateral lateral ligament sprain, left knee degenerative arthritis, and right hip degenerative arthritis as onset in service and as onset in service and continuing since. She also contends entitlement to service connection for such disabilities as secondary to her service-connected lumbar spine disability. As it relates to direct service connection, the Veteran reported that her left knee, left ankle, and right hip pain onset during service and continued after service. Service treatment records show the Veteran received treatment for both ankles and hip right hip in January 1978, her ankles in February and March 1980, and her right hip in September 1997. As noted above, the examiner at the May 1997 medical board evaluation noted her history of various musculoskeletal problems. In January 2020 a VA doctor reviewed the record and provided a negative direct nexus opinion regarding the Veteran's right hip degenerative disc disease. The VA doctor stated that service treatment records did not support a chronic history of hip pain that started in service and that her condition was more consistent with age related degenerative changes that occur over time. The VA doctor did not address the Veteran's lay statements regarding in-service and post-service symptomatology. Certainly a medical professional is free to reject the Veteran's lay statements in providing their opinion, but they must consider them and explain how they have done so for an opinion to be adequate. The Board finds the January 2020 VA medical opinion regarding the right hip to be inadequate. Failure to obtain an adequate medical opinion is a pre-decisional duty to assist error and remand is warranted to correct it. 38 C.F.R. § 20.802(a). The same VA physician assistant reviewed the record and provided two negative direct nexus opinions regarding the Veteran's left ankle and two negative direct nexus opinions regarding the Veteran's left knee in August 2020. Again, the VA physician assistant's rationale does not indicate that they considered the Veteran's lay statements. The Board finds the August 2020 VA medical opinions regarding the left ankle and left knee to be inadequate. Failure to obtain an adequate medical opinion is a pre-decisional duty to assist error and remand is warranted to correct it. 38 C.F.R. § 20.802(a). In November 2004 the Veteran asserted her left ankle, left knee, and right hip pain was secondary to her low back condition. The record reflects the Veteran is in receipt of service connection for intervertebral disc syndrome, a lumbar spine disability. The record is devoid of any medical opinions addressing this theory of entitlement. Under these circumstances, failure to obtain medical opinions regarding secondary service connection is a pre-decisional duty to assist error and remand is warranted to correct it. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 20.802(a). The matters are REMANDED for the following action: Forward the record to a medical professional for opinions as to the nature and etiology of the Veteran's right hip degenerative arthritis, left knee degenerative arthritis, and left ankle collateral lateral ligament sprain. The medical processional is asked to address the following: (a.) Is it as approximately likely as not the Veteran's right hip degenerative arthritis onset during or is otherwise the result of her service? (b.) Is it as approximately likely as not the Veteran's right hip degenerative arthritis is 1) due to or the result of or 2) aggravated by service-connected disability? (c.) It is as approximately likely as not that the Veteran's left knee degenerative arthritis onset during or is otherwise the result of her service? (d.) Is it as approximately likely as not that the Veteran's left knee degenerative arthritis is 1) due to or the result of or 2) aggravated by service-connected disability? (e.) Is it as approximately likely as not that the Veteran's left ankle collateral lateral ligament sprain onset during or is otherwise the result of her service? (f.) It is as approximately likely as not that the Veteran's left ankle collateral lateral ligament sprain is 1) due to or the result of or 2) aggravated by service-connected disability? A rationale for any opinion offered should be provided. R. Feinberg Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sasha Larie Boersma 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.