OSTEOARTHRITIS

Summary

The veteran, who served from June 1970 to March 1974, appeals the denial of service connection for right ankle degenerative arthritis, left ankle status post open reduction and internal fixation and fusion, lumbar spine degenerative disc disease, degenerative arthritis, intervertebral disc syndrome, spondylolisthesis status post lumbar fusion, lumbar radiculopathy, and left knee status post lateral tibial fracture. The veteran claimed these conditions directly due to service or secondarily to his service-connected bilateral pes planus, alleging an antalgic gait caused by the pes planus led to overuse and stress on other joints. The Board denied all claims, finding the persuasive weight of the evidence against a direct service connection due to the absence of in-service injuries or symptoms for these conditions. Contemporaneous service treatment records were negative for these specific complaints, while post-service treatment records and VA examinations from 1995 onwards documented separate post-service injuries as the cause of the current ankle and knee conditions. The Board also denied secondary service connection, finding the private medical opinion linking the conditions to pes planus less probative than the VA examinations and years of VA treatment records, which attributed the altered gait to post-service injuries and existing service-connected foot conditions. The Board found the VA opinions more persuasive as they were specific to the veteran and consistent with the overall evidence.

Rationale

No in-service injury, disease, event, or chronic symptoms of right ankle arthritis.; Contemporaneous service treatment records negative for right ankle complaints.; Post-service injuries in 1997 and 2009 are the direct etiologies for current ankle disability.

Full Decision Text

Citation Nr: A24062272
Decision Date: 10/01/24	Archive Date: 10/01/24

DOCKET NO. 220718-259363
DATE: October 1, 2024

ORDER

Service connection for right ankle degenerative arthritis ("right ankle disability"), including as secondary to the service-connected bilateral pes planus, is denied.

Service connection for left ankle status post open reduction and internal fixation and fusion ("left ankle disability"), including as secondary to the service-connected bilateral pes planus, is denied.

Service connection for lumbar spine degenerative disc disease, degenerative arthritis, intervertebral disc syndrome, spondylolisthesis status post lumbar fusion, and lumbar radiculopathy ("back disability"), including as secondary to the service-connected bilateral pes planus, is denied.

Service connection for left knee status post lateral tibial fracture ("left knee disability"), including as secondary to the service-connected bilateral pes planus, is denied.

FINDINGS OF FACT

1. The evidence shows current diagnoses of right ankle degenerative arthritis, left ankle status post open reduction and internal fixation and fusion, lumbar spine degenerative disc disease, degenerative arthritis, intervertebral disc syndrome, spondylolisthesis status post lumbar fusion, lumbar radiculopathy, and left knee status post lateral tibial fracture.

2. There were no right or left ankle, back, lower extremity neurological, or left knee injuries, diseases, events, or "chronic" symptoms of right ankle or back arthritis during service.

3. Symptoms of right ankle and back arthritis with radiculopathy were not continuous since service and did not manifest to a compensable degree within one year of service separation.

4. The current right ankle, left ankle, back, and left knee disabilities are not etiologically related to service.

5. The current right ankle, left ankle, back, and left knee disabilities were not caused or worsened in severity by the service-connected bilateral pes planus.

CONCLUSIONS OF LAW

1. The criteria for service connection for a right ankle disability, including as secondary to the service-connected bilateral pes planus, are not met.  38?U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38?C.F.R. §§?3.102, 3.159, 3.303, 3.310(a), 3.307, 3.309.

2. The criteria for service connection for a left ankle disability, including as secondary to the service-connected bilateral pes planus, are not met.  38?U.S.C. §§ 1110, 5103, 5103A, 5107; 38?C.F.R. §§?3.102, 3.159, 3.303, 3.310(a).

3. The criteria for service connection for a back disability, including as secondary to the service-connected bilateral pes planus, are not met.  38?U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38?C.F.R. §§?3.102, 3.159, 3.303, 3.310(a), 3.307, 3.309.

4. The criteria for service connection for a left knee disability, including as secondary to the service-connected bilateral pes planus, are not met.  38?U.S.C. §§ 1110, 5103, 5103A, 5107; 38?C.F.R. §§?3.102, 3.159, 3.303, 3.310(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the appellant, had active service from June 1970 to March 1974.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2021 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA) or modernized review system, created a new framework of review for veterans who disagree with VA's decision on their claim.  In the July 2022 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct docket.

In this AMA case, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal (September 20, 2021).  38 C.F.R. § 20.303.  The Board cannot consider evidence submitted during the period after the AOJ issued
 of Veterans Affairs (VA) Regional Office (RO).

The Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA) or modernized review system, created a new framework of review for veterans who disagree with VA's decision on their claim.  In the July 2022 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct docket.

In this AMA case, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal (September 20, 2021).  38 C.F.R. § 20.303.  The Board cannot consider evidence submitted during the period after the AOJ issued the decision on appeal.  38 C.F.R. § 20.303.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider for the issues denied in this decision, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision.

SERVICE CONNECTION LEGAL AUTHORITY 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  

In this case, the evidence shows current diagnoses of right ankle and lumbar spine degenerative arthritis (with radiculopathy).  Arthritis and radiculopathy (as "other organic disease of the nervous system") are "chronic" diseases listed under 38?C.F.R. §?3.309(a); therefore, the presumptive service connection provisions for "chronic" diseases at 38 U.S.C. § 1112 and 38?C.F.R. §?3.303(b) apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38?C.F.R. §?3.303(b). 

Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis or organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38?U.S.C. §§?1101, 1112, 1113; 38?C.F.R. §§?3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.

Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability
 §§?3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.

Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability.

1. Service connection for a right ankle disability is denied.

2. Service connection for a left ankle disability is denied.

3. Service connection for a back disability is denied.

4. Service connection for a left knee disability is denied.

The Veteran appeals for service connection for the right ankle, left ankle, back, and left knee disabilities, as due to service or, alternatively, as secondary to (38 C.F.R. § 3.310(a)) the service-connected bilateral pes planus.  See July 2022 substantive appeal to the Board.  In the September 2021 rating decision, the RO made favorable findings of current diagnoses for the foregoing conditions on appeal.

After a review of all evidence, lay and medical, the persuasive weight of the evidence is against a finding of a right ankle, left ankle, back, lower extremity neurological, or left knee injuries, diseases, events, or "chronic" symptoms of right ankle or back arthritis during service.  At the September 2021 VA examination, Veteran reported straining the back during service but that he did not seek medical attention for the back until 2010. 

The complete service treatment records show treatment for a penile lesion, jock rash, foot pain, a fainting episode, and pharyngitis.  The same service treatment records show no similar reports by the Veteran for a right ankle, left ankle, back, lower extremity neurological, or left knee injury, disease, event, or symptoms.  As the Veteran sought treatment for a variety of symptoms including infections and pain, a right or left ankle, back, lower extremity neurological, or left knee injury or symptoms would have ordinarily been recorded during service had they occurred; therefore, the lay and medical evidence generated contemporaneous to service is likely to reflect accurately the Veteran's physical condition, so provides evidence against a finding of right ankle, left ankle, back, lower extremity neurological, or left knee injuries, diseases, events, or "chronic" symptoms of right ankle or back arthritis with radiculopathy during service.  See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring).  

The Board finds that the Veteran's own reported histories (lay evidence) recorded in the service treatment records, which were made contemporaneously to service and for treatment purposes, are more probative than the Veteran's recent 2021 statement regarding an in-service back injury - a statement made 47 years after service for purposes of VA compensation.  Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran; affirming Board decision that cited from MCCORMICK ON EVIDENCE (3rd ed.1984) for the proposition that "memory hinges on recency" and that earlier statements are generally more trustworthy than later ones); Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes).  See also Fed. R. Evid. 803(4) (statements made for medical diagnosis or treatment are probative).

The persuasive weight of the evidence is against a finding that symptoms of the current right ankle and back arthritis with radiculopathy were continuous since service separation.  The December 1973 service separation examination report is negative for findings related to the right ankle or back.  The evidence also shows an intercurrent post-service ankle injury and back disability that required surgery.  A March 2004 VA treatment record shows the Veteran reported fracturing the right ankle in 1997 (23 years after service separation) and a June 2012 VA treatment record shows a lumbar fusion
 to subsequent statements made for compensation purposes).  See also Fed. R. Evid. 803(4) (statements made for medical diagnosis or treatment are probative).

The persuasive weight of the evidence is against a finding that symptoms of the current right ankle and back arthritis with radiculopathy were continuous since service separation.  The December 1973 service separation examination report is negative for findings related to the right ankle or back.  The evidence also shows an intercurrent post-service ankle injury and back disability that required surgery.  A March 2004 VA treatment record shows the Veteran reported fracturing the right ankle in 1997 (23 years after service separation) and a June 2012 VA treatment record shows a lumbar fusion surgery in 2009 (35 years after service separation).  The December 2018 VA examination report shows mild bilateral lower extremity sciatica associated with the back disability (44 years after service separation).

The Board finds that the Veteran's statements made in March 2004 and June 2012 in the course of receiving medical treatment for the right ankle and back symptoms are of high probative value in showing post-service injuries unrelated to service and post-service onset of ankle and back symptoms because a person seeking treatment would be expected to report an accurate medical history in order to receive good medical care and treatment.  See Fed. R. Evid. 803(4) (statements made for medical diagnosis or treatment are an exception to the rule against hearsay, which supports the proposition that statements reporting medical history for treatment purposes are probative); Harvey, 6 Vet. App. at 394.  The notation of sciatica due to the back disability in December 2018 also shows that symptoms of lumbar radiculopathy, which manifested at least 44 years after service, were not continuous since service separation.  This evidence also shows that symptoms of right ankle and back arthritis with lumbar radiculopathy did not manifest to a compensable (10 percent) degree within one year of service separation.

The persuasive weight of the evidence is also against a finding that the current right ankle, left ankle, back, and left knee disabilities are etiologically related to service.  As the Board has found as a fact that there was no in-service right or left ankle, back, or left knee injury, disease, event, or symptoms, there is no in-service injury, disease, or event to which the current diagnoses could be directly related; therefore, direct service connection must be denied.  The duty to assist under the direct service connection theory ends, and examination and/or opinion is not required because the persuasive weight of the evidence shows no in-service injury, disease, or event to which the current diagnoses could be related by further medical opinion.  See Bardwell v. Shinseki,?24?Vet. App.?36?(2010) (holding that where VA finds no in-service injury or disease during service, the claim will be denied on the merits, and there is no further duty to assist with examination or medical opinion). 

Asking a VA examiner to link the current diagnoses to service would be a futile exercise, creating purported opinions of no probative value because they would be based on inaccurate factual assumptions that some right or left ankle, back, lower extremity neurological, or left knee injury, disease, or event occurred during service.  Such factual assumptions would be inaccurate as they would be contrary to the Board's findings in this case (based on a weighing of all lay and medical evidence).  Such factual inaccuracies would render the purported opinions of no probative value.  See Reonal v. Brown,?5?Vet. App.?458, 461?(1993) (holding that an opinion based on an inaccurate factual premise has no probative value) including the purported December 2015 private medical opinion regarding a direct nexus between the ankle disabilities and treatment. 

As to the?secondary?service connection theory (38?C.F.R. §?3.310(a)), the persuasive weight of the lay and medical evidence is against a finding that the currently diagnosed right ankle, left ankle, back, and left knee disabilities were caused or worsened in severity by the service-connected bilateral pes planus disability.  The RO granted service connection for bilateral pes planus in an April 2016 rating decision.  The Veteran contends that the disabilities on appeal were worsened by an antalgic gait caused by the pes planus.  See September 2018 VA Form 21-526EZ; February 2020 correspondence to VA; September 2021 VA examination report.

In December 2019, a private medical examiner opined that the foregoing disabilities were caused by the bilateral pes planus that caused compensatory walking strategies with biomechanical and kinematic changes related to weight-bearing and pathophysiological mechanisms, including changes from a compensatory gait
 disabilities were caused or worsened in severity by the service-connected bilateral pes planus disability.  The RO granted service connection for bilateral pes planus in an April 2016 rating decision.  The Veteran contends that the disabilities on appeal were worsened by an antalgic gait caused by the pes planus.  See September 2018 VA Form 21-526EZ; February 2020 correspondence to VA; September 2021 VA examination report.

In December 2019, a private medical examiner opined that the foregoing disabilities were caused by the bilateral pes planus that caused compensatory walking strategies with biomechanical and kinematic changes related to weight-bearing and pathophysiological mechanisms, including changes from a compensatory gait, which led to prolonged stress and overuse on non-affected joints.  The examiner explained that, due to the severity of the foot pathology, the Veteran developed an antalgic gait pattern with limping due to a change in center of gravity and medical literature associates this with abnormal kinetics in the lower extremities.  The examiner also explained that pronated foot function is associated with back pain in women because an antalgic gait causes abnormal dynamic forces on the low back and transfers weight from the normal center of gravity, causing increased wear and tear on the back.

In March 2020, a VA examiner opined that it is less likely than not that the back disability was caused or worsened by the pes planus, reasoning that it would be extraordinary for a gait disturbance caused by pes planus to be of such a severe degree that it caused damage to the lumbar spine and that it is more likely that any gait abnormality is caused by the left ankle disability.  The VA examiner also opined that it is less likely than not that the left knee disability was caused or worsened by the pes planus because the Veteran has reported post-service left knee and ankle injuries that more likely caused the antalgic gait (rather than the antalgic gait caused by foot conditions causing the disabilities on appeal).

In September 2021, a VA examiner opined that the foregoing conditions were less likely than not aggravated by the service-connected pes planus because any limp was caused by a post-service left ankle injury (resulting in two surgeries) in 1995 when the Veteran slipped on a rock and, as the evidence shows a very mild limp, it is unlikely that any limp would have caused the current fractures and degenerative conditions.

The Board affords less probative weight to the December 2019 private medical opinions because the evidence shows post-service acute injuries as the direct etiologies of the disabilities on appeal from 1995 to 2012 (instead of as due to overuse or prolonged stress on the joints from foot conditions).  March 2004 and May 2009 VA treatment records show the Veteran reported injuring the right ankle via an accident in 1997.  An August 1995 private treatment record shows the Veteran reported twisting the left ankle while walking down a hill with the left foot pointed forward, leading to left pain, and a June 2012 VA treatment record shows the Veteran reported slipping on rocks leading to the 1995 left ankle fusion surgery.  An April 2010 VA treatment record shows the Veteran reported twisting and fracturing the left knee while walking his dog and slipping on a wet bottle, and a June 2012 VA treatment record shows the Veteran reported previously fracturing the left knee.  As aforementioned, the Veteran underwent a lumbar fusion surgery in 2009 after complaints of back pain.  Such reports render the December 2019 medical opinions inconsistent with the entirety of the evidence, thus, less probative.  

The Board affords more probative weight to the almost 20 years of VA treatment record evidence, including the Veteran's lay reported histories and symptoms and complaints recorded therein.  During VA treatment, the Veteran reported post-service injuries as etiologies for back and ankle and left knee disorders.  The reports were made contemporaneously for purposes of medical treatment and not during the course of the appeal, as were the December 2019 private medical opinions.  When reporting the history of such injuries during VA treatment and for treatment purposes, the Veteran did not attribute back or ankle or left knee disorders to an antalgic gait due to the foot conditions or due to long-term stress on the joints due to the foot conditions.  Additionally, the December 2019 private examiner's rationale with medical literature was general in nature, including references to incidences in back pain due to foot conditions in women, rather than specific to the facts of this Veteran's case, which show no in-service in-service injuries, diseases, or events, and do show intercurrent post-service injuries, with post-service onset of symptoms.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 
 reporting the history of such injuries during VA treatment and for treatment purposes, the Veteran did not attribute back or ankle or left knee disorders to an antalgic gait due to the foot conditions or due to long-term stress on the joints due to the foot conditions.  Additionally, the December 2019 private examiner's rationale with medical literature was general in nature, including references to incidences in back pain due to foot conditions in women, rather than specific to the facts of this Veteran's case, which show no in-service in-service injuries, diseases, or events, and do show intercurrent post-service injuries, with post-service onset of symptoms.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). 

The Board affords more probative weight to the September 2021 VA medical opinions because the examiner's explanations were specific to the Veteran, accurately assume the fact of only slight gait, and assess the likelihood of the development of a slight gait over almost a decade.  The opinions are also consistent with years of VA treatment records from December 2006 to May 2018 in which VA examiners assessed that the right and left ankle, back, and left knee conditions caused an antalgic gait (rather than the antalgic gait, due to foot conditions, causing the conditions on appeal, as the Veteran contends).  VA treatment providers have indicated that the Veteran's gait alteration is attributed to the left ankle deformity, which causes imbalance and staggering problems, that right ankle pain has affected the Veteran's walking, and that the left ankle disability causes misalignment in the knees and hips which caused back pain.  The Board finds that the September 2021 VA medical opinion rationales are more persuasive due to their actual examination of the Veteran, and consistency with the other credible evidence of record, including VA treatment records, and specifically explain how the Veteran's disabilities caused the altered gait after.    

The Board affords more probative weight to the March 2020 VA medical opinions because the examiners additionally explained how the Veteran has self reported post-service back and left knee injuries, and explained how those injuries caused the antalgic gait.  Such rationales, including those that support the September 2021 VA medical opinion, are consistent with the VA treatment record evidence that includes the Veteran's own statements and examiners' assessments.

For the foregoing reasons, the Board finds that the criteria are not met for service connection for the right ankle, left ankle, back, and left knee disabilities on direct, "chronic" disease presumptive, and secondary service connection bases; therefore, the appeals for service connection must be denied.

The Board has expanded the scope of the back disability claim to include lumbar radiculopathy which was diagnosed at the December 2018 VA examination for thoracolumbar conditions.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim; claim should not be limited to the disorder as characterized by the veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim).

Secondary service connection for lumbar radiculopathy, which was diagnosed at the December 2018 VA examination as due to the back disability, must be denied as a matter of law because a back disability is not currently service connected; the issue of service connection for back disability was denied in this decision.  See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994); Mason v. Principi, 16 Vet. App. 129 (2002).

 

J. PARKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	I. Comis

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.