KNEE IMPAIRMENT OF

K. CONNER · 2024 · Case ID: 24029255

MIXED

Summary

The Veteran served in the Army from September 1961 to September 1963, with subsequent service in the Navy and Army, including periods in the 1980s and 1990s. The Veteran appeals the denial of service connection for a right knee disability and a right hip disability, both claimed as secondary to his service-connected right ankle contusion. The Board reviewed the Veteran's extensive service and medical history, including pre-service knee surgery and in-service ankle injury. The Veteran submitted a private medical opinion from Dr. Baber suggesting a nexus between the ankle injury, obesity, and subsequent hip and knee issues. However, multiple VA examinations, particularly those in June and September 2023, provided negative nexus opinions, concluding that the Veteran's hip and knee conditions were less likely than not related to his service-connected ankle disability. These VA opinions were based on the Veteran's pre-service knee surgery, the lack of in-service complaints or findings for the hip and knee, and the Veteran's own reports of falls and subsequent surgeries for these conditions. The Board found the VA opinions more persuasive due to their detailed rationale and consideration of the Veteran's medical history, including pre-existing conditions and post-service events. The claims for right knee and right hip disabilities were denied. The issue of entitlement to a Total Disability based on Individual Unemployability (TDIU) was remanded for further development, as the RO failed to comply with a prior Board directive to refer the matter for an extraschedular TDIU assessment.

Rationale

Pre-existing right knee condition treated before service; No in-service aggravation documented; Negative VA nexus opinions finding less likely than not related to service-connected ankle

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

15-28 055

Full Decision Text

Citation Nr: 24029255
Decision Date: 08/21/24 Archive Date: 08/21/24

DOCKET NO. 15-28 055
DATE: August 21, 2024

ORDER

Entitlement to service connection for a right knee disability, claimed as secondary to service-connected right ankle disability, is denied.

Entitlement to service connection for a right hip disability, claimed as secondary to service-connected right ankle disability, is denied.

REMANDED

Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is remanded.

FINDINGS OF FACT

1. A right knee disability is not caused or aggravated by the Veteran's service-connected disabilities.

2. A right hip disability is not caused or aggravated by the Veteran's service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.30, 3.310.

2. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.30, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1961 to September 1963, November 1987 to May 1988, September 1990 to April 1991, and December 1993 to May 1998.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a rating in excess of 10 percent for residuals of a right ankle contusion.

In April 2016, the Board remanded the issue of entitlement to an increased rating for residuals of a right ankle contusion for further development.

In January 2017, the Board expanded the appeal to include the inferred issue of entitlement to a TDIU as part and parcel of the claim for an increased rating for the service-connected right ankle disability. See Harper v. Shinseki, 30 Vet. App. 345 (2018); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU issue, as well as the issue of entitlement to an increased rating for residuals of a right ankle contusion for further development.

In February 2019, January 2021, and November 2021, the Board again remanded the issues of entitlement to an increased rating for residuals of a right ankle contusion and entitlement to a TDIU for further development.

An informal hearing conference with a Decision Review Officer (DRO) was conducted in May 2022 in lieu of a formal hearing and a report of that conference has been associated with the Veteran's claims file.

In an August 2022 decision, the Board determined that the Veteran had raised claims of entitlement to service connection for right lower extremity skin discoloration, back disability, right hip disability, right knee disability, and hypertension associated with his service-connected right ankle disability pursuant to Bailey v. Wilkie, 33 Vet. App. 188 (2021) (when entitlement to secondary service connection is raised, a formal claim for secondary service connection need not be filed, rather, VA must consider those "complications" in connection with the claim on appeal). The Board therefore expanded the appeal to include the separate issues of entitlement to service connection for right lower extremity hemosiderin staining, back disability, right hip disability, right knee disability, and hypertension, all as secondary to the service-connected residuals of a right ankle contusion. The Board thereafter, inter alia, remanded the claims of entitlement to service connection for back disability, right hip disability, right knee disability, and hypertension. The Board also remanded the issue of entitlement to a TDIU.

As will be described below, a review of the record reflects substantial compliance with the Board's Remand directives with respect to the claims of entitlement to service connection for right hip and right knee disabilities. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was issued in June 2024. The Veteran's VA claims file has been returned to the Board for further appellate proceedings.

In an October 2023 rating decision, the RO granted entitlement to
of entitlement to service connection for back disability, right hip disability, right knee disability, and hypertension. The Board also remanded the issue of entitlement to a TDIU.

In an October 2023 rating decision, the RO granted entitlement to service connection for lumbar spine degenerative disc disease (DDD) with degenerative arthritis, spinal stenosis, and spondylolisthesis, and assigned a 10 percent disability rating from January 22, 2010. In a June 2024 rating decision, the RO granted entitlement to service connection for hypertension and assigned a noncompensable (zero percent) rating from January 22, 2010. The Board finds that the grant of service connection for those disabilities constitutes a full award of the benefit sought on appeal with respect to the claims of service connection for hypertension and a back disability. Neither the Veteran nor his attorney has contended otherwise. Thus, those matters have accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection).

1. Entitlement to service connection for a right knee disability, claimed as secondary to service-connected right ankle disability.

2. Entitlement to service connection for a right hip disability, claimed as secondary to service-connected right ankle disability.

Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a), (b).

As indicated above, while pursuing a claim of entitlement to an increased rating for a right ankle disability, the Veteran asserted entitlement to service connection for right knee and right hip disabilities as secondary to his service-connected right ankle disability with a secondary right foot disability, to include obesity as an intermediate step. See, e.g., the Board decision dated August 2022. For the reasons set forth below, the Board finds that entitlement to service connection is not warranted as to either issue.

The Veteran's service treatment records (STRs) show that he had surgery on his right knee prior to his September 1961 enlistment. Specifically, treatment records show that the Veteran underwent right knee surgery to repair recurrent dislocation of the patella. In an April 1961 letter, B.H., M.D., explained that the Veteran had been seen in May 1953 for dislocation of the right knee. He underwent right knee surgery including the removal of fluid and semilunar cartilage in May 1953. Dr. B.H. reported, "[h]is post operative course was satisfactory. He was last seen by me [July 1955] at which time there was some crepitation within the knee joint." The Veteran's May 1961 pre-induction examination documented right knee laxity of the right anterior cruciate ligament and mild crepitation. In the May 1961 Report of Medical History, the Veteran endorsed 'trick or locked knee.' In his August 1963 Report of Medical History at separation, the Veteran was noted to have injured his right knee at age 14 and had an operation performed in 1953.

The Veteran was afforded a VA examination in October 1963, after his first period of active duty service (September 1961 to September 1963). The examiner noted that the Veteran asserted his right knee was aggravated in service due to participation in "any or all of the activities necessitated by being in the service." The Veteran reported that he limps occasionally, and he has stiffness and aching in his right knee. The examiner diagnosed the Veteran with "[r]ecurrent dislocation right patella successfully treated by surgery prior to Army service at age 14." The examiner
Medical History at separation, the Veteran was noted to have injured his right knee at age 14 and had an operation performed in 1953.

The Veteran was afforded a VA examination in October 1963, after his first period of active duty service (September 1961 to September 1963). The examiner noted that the Veteran asserted his right knee was aggravated in service due to participation in "any or all of the activities necessitated by being in the service." The Veteran reported that he limps occasionally, and he has stiffness and aching in his right knee. The examiner diagnosed the Veteran with "[r]ecurrent dislocation right patella successfully treated by surgery prior to Army service at age 14." The examiner stated, "[c]onsidering the paucity of findings even now . . . and considering the negative x-ray, it is difficult to believe anything was aggravated."

In a January 1969 statement, the Veteran reported that he experiences periodic flare-ups of right knee symptoms.

In an August 1972 decision, the Board determined that the Veteran's right knee disability pre-existed his active duty service and was not aggravated during service.

Treatment records dated in August 1970 document the Veteran's repeated treatment for right knee complaints including swelling.

VA treatment records dated in November 1976 documented the Veteran's treatment for recurrent right knee problems including swelling, limited range of motion, and pain on motion. A diagnosis of patellofemoral arthritis was indicated.

In a January 1978 decision, the Board declined to reopen the Veteran's claim of entitlement to service connection for a right knee disability. The Board determined that the evidence does not objectively establish any in service increase of the pre-existing disability and therefore establishes no new factual basis for reversal of the prior decision.

The Veteran subsequently enlisted in the U.S. Navy and served on active duty from November 1987 to May 1988. The May 1988 Report of Medical History at separation documented the Veteran's endorsement of 'trick or locked knee,' 'arthritis, rheumatism, or bursitis,' and 'swollen or painful joints.' The Veteran indicated that he had experienced trouble with his ankles and knees; he was noted to have undergone prior right knee surgery. The May 1988 separation examination did not document any right knee or right hip abnormalities aside from a 6 inch scar on the right knee.

In a March 1989 rating decision, the Veteran was service-connected for residuals of a right ankle contusion; a noncompensable (zero percent) disability rating was assigned from May 14, 1988.

The Veteran served two additional periods of active duty from September 1990 to April 1991 and from December 1993 to May 1998.

VA treatment records dated in May 2015 show that the Veteran fell while mowing his grass and fractured his right hip. He underwent a right total hip replacement in May 2015. VA treatment records dated in May 2015 noted that the Veteran's right hip fracture "does not appear to be related to [a] service-connected condition."

The Veteran submitted an Aid and Attendance examination in July 2019, which was completed by A.M., D.O. In the examination report, Dr. A.M. reported that the Veteran is diagnosed with osteoarthritis of the right knee.

In a September 2021 rating decision, the RO granted entitlement to service connection for right foot pain as secondary to the Veteran's service-connected right ankle disability; a 10 percent rating was assigned from April 16, 2021.

In support of his claim, the Veteran submitted a May 2022 medical opinion authored by Syed R. Baber, M.D., Ph.D., who reported that the Veteran's right ankle injury has caused him to become obese and caused a compensatory injury to his right hip, as well as recurrent right knee disease. Dr. Baber opined that the Veteran's right ankle disability has caused an altered gait, shifting the Veteran's center of gravity, and causing increased stress on other joints including his back and hip. He opined, "[r]epeated gait disturbances lead to accelerated degeneration of uninjured joints or an exacerbation of a pre-existing condition." He determined that it is at least as likely as not that the Veteran's right hip and knee disabilities are secondary to his service-connected right ankle disability.

The Veteran was afforded a VA examination as to his right hip in June 2022. The examiner diagnosed right hip joint replacement, which was performed in May 2015. The examiner noted the Veteran's report that he had broken his hip when slipped and fallen while mowing the grass in his yard.

In a June 2022 medical opinion, the examiner opined that the Veteran's right hip disability is less likely than not
He opined, "[r]epeated gait disturbances lead to accelerated degeneration of uninjured joints or an exacerbation of a pre-existing condition." He determined that it is at least as likely as not that the Veteran's right hip and knee disabilities are secondary to his service-connected right ankle disability.

In a June 2022 medical opinion, the examiner opined that the Veteran's right hip disability is less likely than not proximately due to or the result of his service-connected condition. The examiner explained, "[h]e needed a right hip ORIF in May 2015 after slipping while mowing grass and fracturing the hip. It has no association with history of a right ankle contusion which occurred in 1988 and healed." The examiner concluded, "[t]herefore, it is less likely than not that the right hip ORIF is due to the right ankle condition."

The Veteran was also afforded a VA right knee examination in June 2022. The examiner diagnosed the Veteran with post-operative right knee patella recurrent dislocation. The examiner determined that the Veteran's right knee disability is less likely than not proximately due to or the result of his service-connected right ankle disability. The examiner explained that the Veteran underwent surgery to correct right knee patella dislocation in 1953, which subsequently healed. The examiner opined, "[i]t has no association with the history of a right ankle contusion which occurred in 1988 and healed."

Pursuant to the August 2022 Board Remand, VA medical opinions were obtained in June 2023 to address whether the Veteran's diagnosed right knee and right hip disabilities are proximately caused or aggravated by his service-connected right ankle disability with obesity as an intermediate step.

To this end, although obesity is not a disability for VA compensation purposes, obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). VAOPGCPREC 1-2017. See also Marcelino v. Shulkin, 29 Vet. App. 155 (2018) (affirming the Board's decision that service connection is not warranted for obesity as it is not in and of itself a disability for VA purposes, but not addressing VAOPGCPREC 1-2017). In order to establish service connection on this basis, three criteria must be met: (1) the service-connected disability must have caused the veteran to become obese; (2) the obesity as a result of the service-connected disability must be a substantial factor in causing the disability for which service connection is sought; and (3) the disability for which service connection is sought would not have occurred but for obesity caused by the service-connected disability. Id.

In the June 2023 VA medical opinion, the examiner determined that it is less likely than not that the Veteran's claimed right knee disability was proximately due to or aggravated by his service-connected right ankle disability. The examiner explained,

Patient's records are silent for any consult for knee pain, and the indication of a knee problem is only seen from findings of osteoarthritis and small ossific loose body on the suprapatellar space seen on a knee x-ray done last 11 September 2017. Said findings is at least as likely than not due to wear-and-tear from daily use, and an increased risk of developing arthritis due to a previous injury to the knee [in] 1953, which happened before service. Furthermore, review of records does not suggest that the ankle disability was severe enough to cause gait change and alteration of biomechanics leading to an increased risk of developing knee problems. DBQ dated 01 January 2016 shows that ankle pain 1) did not occur on a daily basis, 2) was not managed using pain medications, and 3) was not managed with braces. Primary care note dated 21 September 2021 noted that the right ankle disability, which was present since 1988, was "stable", and records has been silent for consultations for right ankle pain for almost 10 years.

With respect to the right hip, the examiner determined that it is less likely than not that the Veteran's claimed right knee was proximately due to or aggravated by his service-connected right ankle disability. The examiner opined,

Record is silent for a right hip problem until Veteran fell and fractured his right hip [in] May 201
6 shows that ankle pain 1) did not occur on a daily basis, 2) was not managed using pain medications, and 3) was not managed with braces. Primary care note dated 21 September 2021 noted that the right ankle disability, which was present since 1988, was "stable", and records has been silent for consultations for right ankle pain for almost 10 years.

Record is silent for a right hip problem until Veteran fell and fractured his right hip [in] May 2015. Claimant's right hip problem is an independent condition that started because of a fall. Furthermore, review of records does not suggest that the ankle disability was severe enough to cause gait change and alteration of biomechanics leading to an increased risk of developing a hip problem. DBQ dated 01 January 2016 shows that ankle pain 1) did not occur on a daily basis, 2) was not managed using pain medications, and 3) was not managed with braces. Primary care note dated 21 September 2021 noted that the right ankle disability, which was present since 1988, was "stable", and records has been silent for consultations for right ankle pain for almost 10 years.

The June 2023 VA examiner additionally determined that the Veteran's obesity was less likely than not caused by, or was aggravated by his service-connected residuals contusion, right ankle. The examiner explained, "[r]eview of records does not suggest that the ankle disability was severe enough to cause gait change and continuous limitation of movement leading to becoming sedentary." The examiner noted that the "DBQ dated 01 January 2016 shows that ankle pain 1) did not occur on a daily basis, 2) was not managed using pain medications, and 3) was not managed with braces. Primary care note dated 21 September 2021 noted that the right ankle disability, which was present since 1988, was "stable", and records has been silent for consultations for right ankle pain for almost 10 years." The examiner continued,

Veteran's records are silent for any consult for knee pain, and the indication of a knee problem is only seen from findings of osteoarthritis and small ossific loose body on the suprapatellar space seen on a knee x-ray done last 11 September 2017. Said findings is at least as likely than not due to wear-and-tear from daily use, and an increased risk of developing arthritis due to a previous injury to the knee [in] 1953, which happened before service. However, it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that (1) the Veteran's obesity was a substantial factor in causing any right knee disability experienced since approximately January 2010 and (2) any such right knee disability would not have occurred but for the obesity. The knee is a weight bearing joint, and obesity leads to increased weight bearing that worsens the wear-and-tear that naturally comes with using our joints on a daily basis.

The examiner similarly determined,

Reviewed records were silent for any hip problem, until the accident that happened in May 2015 leading to a fracture. However, it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that (1) the Veteran's obesity was a substantial factor in causing any right hip disability experienced since approximately January 2010 and (2) any such right hip disability would not have occurred but for the obesity. The hip is a weight bearing joint, and obesity leads to increased weight bearing that worsens the wear-and-tear that naturally comes with using our joints on a daily basis. Furthermore, obesity is known to increase the risk of falls in the elderly population (https://pubmed.ncbi.nlm.nih.gov/31750880/

In support of his claim, the Veteran submitted a March 2023 medical opinion from Dr. Baber who opined that the Veteran developed obesity as a result of a right a foot disability, which required him to ambulate with a limp. Dr. Baber opined, "[t]he right foot disease over several years has caused stress on other joints and diseased them over time indirectly. [The Veteran's] weight gain from not being able to exercise due to his foot injuries has caused him to become obese." Dr. Baber then stated that the Veteran developed a right hip disability as a result of his obesity because "[t]his is very commonplace in obese individuals. Studies note after adjusting for demographic characteristics, obesity was
support of his claim, the Veteran submitted a March 2023 medical opinion from Dr. Baber who opined that the Veteran developed obesity as a result of a right a foot disability, which required him to ambulate with a limp. Dr. Baber opined, "[t]he right foot disease over several years has caused stress on other joints and diseased them over time indirectly. [The Veteran's] weight gain from not being able to exercise due to his foot injuries has caused him to become obese." Dr. Baber then stated that the Veteran developed a right hip disability as a result of his obesity because "[t]his is very commonplace in obese individuals. Studies note after adjusting for demographic characteristics, obesity was associated with a higher prevalence of hip disease. Participants who were obese were more than twice as likely to have hip disease . . . compared with those classified as underweight/normal weight. As noted with the knee and ankle, the disease of the hip is also multifactorial in my medical opinion, and it is my opinion that [the Veteran's] right hip disease is at least as likely as not secondary to enlistment causes."

Another VA medical opinion was obtained in September 2023, in which the examiner determined that the Veteran's claimed right hip disability is less likely than not (likelihood is less than approximately balanced or nearly equal) proximately due to or the result of his service connected right ankle disability. The examiner explained, "[a]vailable records are silent for hip pain until the Veteran fell from mowing his lawn and fractured his right hip in May 2015. Medical records since 2015 note the Veteran's right hip pain as status post fracture and repair indicating that right hip pain was AFTER the Veteran's fracture and repair." The examiner concluded, "[t]herefore, the right hip disability is less likely than not related to the residuals of right ankle contusion. A nexus has not been established."

The September 2023 VA examiner additionally determined that the Veteran's right hip disability was not aggravated beyond its natural progression by his service-connected right ankle disability. The examiner reiterated, "[a]vailable records are silent for hip pain until the Veteran fell from mowing his lawn and fractured his right hip in May 2015. Medical records since 2015 note the Veteran's right hip pain as status post fracture and repair indicating that right hip pain was AFTER the Veteran's fracture and repair." The examiner further noted, "[p]rimary care notes from 2016, 2017, 2018 all note treatment and discussions of ongoing use of narcotics for chronic hip pain after breaking his femur and getting surgery." The examiner concluded, "[d]ue to the significant history of an injury to his right hip, it is less likely that the Veteran's right hip disability was aggravated beyond its natural progression by the service connected residuals of right ankle contusion."

The September 2023 VA examiner also addressed whether the Veteran developed obesity as a result of his service-connected right ankle disability. The VA examiner determined that the Veteran's obesity is less likely than not proximately due to or the result of the Veteran's service-connected right ankle disability.

It has been opined by Syed R. Baber M.D., PhD that the veteran became overweight and obese due to his sedentary lifestyle from his musculoskeletal injuries which were as likely as likely as not due to enlistment activities. However, review of records indicate that the veteran was overweight (207 lbs.) prior to his ankle injury during his annual physical exam in 1986, for which he was recommended weight control and exercise program to decrease body fat content to 22 percent. His separation exam in May 1988 recorded a weight of 208 lbs. (overweight status) and noted his right ankle injury that occurred 1 month prior. During his C&P exam in November 1988, the Veteran reported soreness of ankle only with no difficulty walking. He was assessed to have slight tenderness to the ankle but with full ROM of ankle and with no swelling. Conclusion of the assessment at the time was minor residuals injury of right ankle. His weight at the time was recorded to be 223 lbs., with BMI of 29.4, overweight status. Records indicate that he steadily gained more weight within 6 months from reporting no issues with ankle mobility and walking, with 2 more pounds (225 lbs.) in January1989 and 3 more pounds in June 1989 (228 lbs., BMI of 30.1, obese status). The Veteran had been overweight well before his ankle injury in 1988. He had also been obese well before his ankle disability had worsening progression from approximately January 2010. Therefore, review of records does not suggest that residuals of right ankle, contusion was severe enough
was minor residuals injury of right ankle. His weight at the time was recorded to be 223 lbs., with BMI of 29.4, overweight status. Records indicate that he steadily gained more weight within 6 months from reporting no issues with ankle mobility and walking, with 2 more pounds (225 lbs.) in January1989 and 3 more pounds in June 1989 (228 lbs., BMI of 30.1, obese status). The Veteran had been overweight well before his ankle injury in 1988. He had also been obese well before his ankle disability had worsening progression from approximately January 2010. Therefore, review of records does not suggest that residuals of right ankle, contusion was severe enough to cause continuous limitation of movement leading to becoming sedentary and causing him to become overweight and obese. In addition, the Veteran's service connected condition residuals does not preclude all forms of exercise. For example, paraplegics exercise and maintain appropriate BMI. Obesity is most commonly caused by a combination of excessive food intake and lack of physical activity, which is a choice. The Veteran's obesity was less likely than not caused by, or was aggravated by the Veteran's service-connected residuals contusion, right ankle. The hip is a weight bearing joint, and increased weight from obesity leads to increased weight on the weight bearing joint, causing pain. However, to reiterate, the Veteran's obesity is less likely than not caused by, or was aggravated by the Veteran's service-connected residuals contusion, right ankle.

When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

With respect to the current claims, the Board finds that the medical evidence demonstrating the absence of nexus between the currently diagnosed right hip and right knee disabilities and the Veteran's service-connected right ankle disability with secondary right foot pain to include obesity as an intermediate step substantially outweighs the medical evidence suggestive of a nexus and/or aggravation. The June 2023 and September 2023 VA examiners clearly opined that the obesity was not approximately as likely as not related to and/or aggravated by the Veteran's service-connected right ankle disability. The September 2023 VA examiner provided a detailed explanation for his determination that the Veteran was overweight prior to the development of a right ankle disability and was not related to any subsequent worsening of the right ankle disability. The law imposes no reasons-and-bases requirement on examiners. Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion). The Board finds that the June 2023 and September 2023 VA examiners' opinions adequately addresses the question at issue; namely, whether the claimed right knee and right hip disabilities were approximately as likely as not related to and/or aggravated by the service-connected right ankle disability with secondary foot pain.

The Board has considered the opinions dated May 2022 and March 2023 from Dr. Baber who opined that the Veteran's service-connected right ankle and right foot disabilities caused him to develop obesity, which proximately caused or aggravated his right hip and right knee disabilities. Critically, Dr. Baber failed to address the Veteran's documented obesity prior to the incurrence of his service connected right ankle disability and any subsequent worsening, as detailed in the September 2023 VA medical opinion. He also failed to address clinical records showing that the Veteran consistently denied gait disturbances and clinical observations consistently noted a steady gait prior to the Veteran's sustaining his 2015 fall.

As indicated above, the June 202
pain.

As indicated above, the June 2023 and September 2023 VA medical opinions are based on review and detailed analysis of the Veteran's medical history. The Board therefore places significant weight on the findings of the VA examiners as expressed in the June 2023 and September 2023 medical opinions. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Accordingly, the Board finds that the competent medical evidence demonstrating the absence of nexus between the claimed right hip and right knee disabilities and the Veteran's service-connected disabilities outweighs any medical evidence suggestive of a nexus or aggravation.

The Board notes that the record on appeal contains no indication that the Veteran's diagnosed right hip disability had its inception during his active duty service, was manifest to a compensable degree within one year of separation, or is otherwise causally related to an in-service disease or injury. As indicated above, the evidence of record does not document any right hip disability, until he fractured his right hip after a fall mowing the lawn in May 2015. Consequently, the post-service record does not contain any indication that the current right hip disability was manifest to a compensable degree within one year of separation or are causally related to an in-service disease or injury. The Veteran does not argue otherwise.

As detailed above, the Veteran's right knee claim was previously denied based upon a finding that his pre-existing right knee disability was not aggravated beyond its natural progression by his active duty service. See, e.g., the Board decisions dated August 1972 and January 1978. In connection with the current claim, the evidence remains the same as at the time of the prior denial. The Veteran is no longer contending entitlement to service connection for a right knee disability on a direct or aggravation basis, but rather asserts entitlement to service connection for a right knee disability as secondary to his service-connected right ankle disability with secondary right foot pain. Critically, no medical professional has suggested that the Veteran's pre-existing right knee disability caused aggravated beyond its natural progression by his active duty service. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003). As such, a medical opinion with respect to the question of direct service connection is not necessary.

The Board has carefully considered the contentions of the Veteran that he has right hip and right knee disabilities, which were caused or aggravated by his service-connected right ankle disability with secondary foot pain to include obesity as an intermediate factor. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder).

Questions of competency notwithstanding, the Veteran's lay theories regarding the etiology of right hip and right knee disabilities are not supported by the conclusions of the June 2023 and September 2023 VA examiners, who specifically considered his lay
24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder).

Questions of competency notwithstanding, the Veteran's lay theories regarding the etiology of right hip and right knee disabilities are not supported by the conclusions of the June 2023 and September 2023 VA examiners, who specifically considered his lay statements in rendering the negative opinion. The Board finds the specific, reasoned opinion of the trained health care providers who conducted the VA opinion to be of greater probative weight than the more general lay assertions of the Veteran.

Considering the overall evidence, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, as the evidence is not in approximate balance and is more persuasively against the Veteran's claims, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

REASONS FOR REMAND

1. Entitlement to a TDIU is remanded.

In the August 2022 decision, the Board remanded the issue of entitlement to a TDIU and directed that, if, after the AOJ implemented the Board's award of service connection for right lower extremity hemosiderin staining and an increased rating for residuals of right ankle contusion, and readjudicate the issues of entitlement to service connection for back disability, right hip disability, right knee disability, and hypertension, the percentage ratings for the Veteran's service-connected disabilities do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a) for any period(s) since January 22, 2010, the AOJ must refer the case to VA's Director of Compensation for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16 (b) during any such period(s). The Board further instructed that the Director (or his designee) should issue a memorandum addressing whether a TDIU is warranted under 38 C.F.R. § 4.16 (b) at any pertinent point since January 22, 2010.

After the August 2022 Board decision was issued, the AOJ issued a rating decision dated October 2022 in which it implemented the Board's award of service connection for right lower extremity hemosiderin staining and assigned a noncompensable disability rating from December 13, 2018, as well as increased the disability rating for service-connected right ankle disability to 30 percent, effective from May 5, 2022.

The RO subsequently granted service connection for entitlement to service connection for lumbar spine degenerative disc disease (DDD) with degenerative arthritis, spinal stenosis, and spondylolisthesis, and assigned a 10 percent disability rating from January 22, 2010. See the rating decision dated In a June 2024 rating decision, the RO granted entitlement to service connection for hypertension and assigned a noncompensable (zero percent) rating from January 22, 2010.

For the appeal period, the Veteran's combined disability rating was 20 percent from January 22, 2010, 30 percent from June 23, 2014, 50 percent from April 16, 2021, and 60 percent from May 5, 2022. As such, the Veteran does not meet the schedular criteria for entitlement to a TDIU at any point during the period on appeal. As noted in the August 2022 Board remand, TDIU may be assigned to a veteran who fails to meet the percentage standards if he or she is unemployable by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16(b).

Critically, the AOJ failed to comply with the August 2022 Board remand because the AOJ did not refer the matter of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service, as instructed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This matter must therefore be remanded for compliance with this remand directive.

The matters are REMANDED for the following action:

Refer to the Director of Compensation Service
to a veteran who fails to meet the percentage standards if he or she is unemployable by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16(b).

The matters are REMANDED for the following action:

Refer to the Director of Compensation Service, the Veteran's claim of entitlement to an extraschedular TDIU under 38 C.F.R. § 4.16(b).

K. Conner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K. K. Buckley, 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.

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