KNEE IMPAIRMENT OF

Summary

The Veteran, an Army Veteran who served from October 2001 to March 2002, March 2003 to May 2003, and August 2005 to December 2006, appeals the March 2020 rating decision. The Veteran sought service connection for bilateral ankle conditions, anal fistula, and bilateral restless leg syndrome, and also appealed the denial of service connection for primary anemia. The Board granted service connection for bilateral ankle conditions, finding the Veteran's testimony regarding ankle instability persuasive and supported by objective medical evidence from a VA examination, despite the lack of a specific diagnosis. The Board also granted service connection for anal fistula as secondary to service-connected thoracolumbar spine strain and bilateral knee strain, based on a private medical opinion linking hydrocodone use for those conditions to the aggravation of the anal fistula. Service connection for bilateral restless leg syndrome was granted as secondary to service-connected obstructive sleep apnea, supported by a private medical opinion. The claim for primary anemia was remanded due to a pre-decisional duty to assist error; the VA failed to document notification for a scheduled examination, and the provided nexus opinion was found unpersuasive due to speculation and lack of specific causation.

Rationale

Veteran's testimony regarding ankle instability and pain found persuasive; January 2020 VA examination noted suspected bilateral ankle instability; Evidence sufficient to show current disability for service connection

Full Decision Text

Citation Nr: A26039456
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 210225-143154
DATE: April 28, 2026

ORDER

Entitlement to service connection for bilateral ankle condition is granted.

Entitlement to service connection for anal fistula is granted.

Entitlement to service connection for bilateral restless leg syndrome is granted.

REMANDED

Entitlement to service connection for primary anemia is remanded.

FINDINGS OF FACT

1. The Veteran's bilateral ankle conditions were caused by a fall injury he sustained while on active duty for training.

2. The Veteran's anal fistula was aggravated by the medicine prescribed for his service-connected back and bilateral knee injuries.

3. The Veteran's bilateral restless leg syndrome was caused by his service-connected obstructive sleep apnea.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral ankle conditions are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for anal fistula as secondary to service-connected thoracolumbar spine strain and bilateral knee strain are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

3. The criteria for service connection for bilateral restless leg syndrome as secondary to service-connected obstructive sleep apnea are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from October 2001 to March 2002, from March 2003 to May 2003, and from August 2005 to December 2006, with additional National Guard service. 

This matter comes to the Board of Veterans' Appeals (Board) from a March 2020 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA).

In the February 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on July 11, 2024. Therefore, the Board may only consider the evidence of record at the time of the March 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, 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. 

However, because the Board is remanding the claim for service connection for anemia, 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).

Service Connection

A Veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 
1110; 38 C.F.R. § 3.303 (a). Service connection may also 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). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Service connection may be established on a secondary basis for a disability that is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310 (a). To establish secondary service connection there must be evidence: (1) of a current disability (for which secondary service connection is sought); (2) of an already service-connected disability; and (3) that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310 (a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

Entitlement to service connection for bilateral ankle condition is granted.

The Veteran testified at the July 2024 hearing that he has problems with his ankles. As a result, he wears custom orthotics all day every day. See July 2024 hearing transcript at 10. The Veteran attended a January 2020 VA examination, and the examiner concluded that the only diagnosable ankle condition was an accessory ossicle of the right ankle. However, the examiner noted that he suspected bilateral ankle instability or dislocation. See January VA Ankle Conditions DBQ at 11. The Board finds the Veteran's subjective account of his ankle symptoms to be persuasive, and further finds that the January 2020 VA examination's findings regarding ankle instability constitute objective medical evidence of a current bilateral ankle disability. 

The evidence before the Board does not show that the Veteran's ankle symptoms have been clearly diagnosed. However, VA compensates Veterans for disabilities, not for diagnoses. While the two concepts are closely related, they are not the same: a diagnosis is the specific identity of a medical condition, whereas a disability is the functional limitation imposed by a medical condition. Thus, in some cases service connection can be granted without an underlying diagnosis. In others, multiple diagnoses can be grouped and assigned a single disability rating. In still others, a single diagnosis can be assigned multiple disability ratings. See generally Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) ("pain alone, absent a specific diagnosis or otherwise identified disease or injury, [can] constitute a disability"); Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009) (permitting VA to assign a single rating for a pair of psychiatric disabilities); Walleman v. McDonough, 35 Vet. App. 294 (2022) (multiple musculoskeletal ratings may be assigned for a single knee).

While there is no specific diagnosis for the Veteran's ankle disabilities in evidence, VA recognizes both joint pain and joint instability as compensable manifestations of musculoskeletal disabilities. See generally 38 C.F.R. § 4.71a. Therefore, the Board finds that the evidence described above is sufficient to show a current disability for the purpose of a claim for service connection.

The Veteran testified further at the July 2024 hearing that while training at Fort Sill on active duty orders, he fell approximately fifteen feet from a zip line while training at Fort Sill and hurt his ankles. See July 2024 hearing transcript at 7. This account is generally consistent with the Veteran's written statement accompanying his initial claim for service connection, as well as a statement from S.B., who witnessed the fall. See August 2019 VA Form 21-526EZ; August 2019 S.B. statement. The Board notes that the Veteran's July 2024 testimony stated that this event took place in 2002, whereas his previous written statement and S.B.'s statement refer to the event taking place in 2003. The Veteran's 2003 deployment to Fort Sill is confirmed by a May 2003 DD Form 214; therefore, the Board finds that the fall injury took place in 2003 while on active duty. This is sufficient evidence to find an in-service injury for a claim for service connection.

The Veteran testified at the July 2024 hearing that
 a statement from S.B., who witnessed the fall. See August 2019 VA Form 21-526EZ; August 2019 S.B. statement. The Board notes that the Veteran's July 2024 testimony stated that this event took place in 2002, whereas his previous written statement and S.B.'s statement refer to the event taking place in 2003. The Veteran's 2003 deployment to Fort Sill is confirmed by a May 2003 DD Form 214; therefore, the Board finds that the fall injury took place in 2003 while on active duty. This is sufficient evidence to find an in-service injury for a claim for service connection.

The Veteran testified at the July 2024 hearing that he has continually experienced ankle problems, including his current ankle problems, since his July 2003 fall. He submitted a nexus opinion from S.C., a private medical examiner, in the 90-day window following the July 2024 hearing. S.C. also agreed that the Veteran's current ankle problems are related to his military service. The Board's review of the record shows no evidence weighing against a nexus. 

Therefore, service connection is granted for bilateral ankle conditions.

Entitlement to service connection for anal fistula is granted.

The Veteran submitted a post-hearing medical opinion that confirms a diagnosis of recurring anal fistula. See October 9, 2024 S.C. medical opinion. This is sufficient evidence to show a current disability.

The Veteran has been granted service connection for thoracolumbar spine strain and bilateral knee strain. See March 2025 rating decision code sheet. This is sufficient to satisfy the second element of a claim for secondary service connection.

The pain caused by the Veteran's service-connected lumbar spine and knee disabilities are treated, in part, with hydrocodone. See, e.g., VA medical records dated March 13, 2019 (showing ongoing prescription). The Veteran submitted a nexus opinion from S.C., a private medical examiner, who concluded that it was at least as likely as not that the Veteran's hydrocodone usage had caused severe constipation, which in turn aggravated the Veteran's anal fistula. This is sufficient to satisfy the third element of a claim for secondary service connection.

Therefore, service connection is granted for anal fistula.

Entitlement to service connection for bilateral restless leg syndrome is granted.

The Veteran has been diagnosed with restless leg syndrome. See January 2020 VA examination (claims file date February 25, 2020). This is sufficient to satisfy the first element of a claim for secondary service connection.

The Veteran has been granted service connection for obstructive sleep apnea. See March 2025 rating decision code sheet. This is sufficient to satisfy the second element of a claim for secondary service connection.

The Veteran attended a VA Central Nervous System examination in January 2020. The examiner, when asked whether the Veteran's restless leg syndrome was likely to be related to a toxic exposure event during military service, noted that obstructive sleep apnea was far more likely to be the cause of the Veteran's restless leg syndrome. See January 2020 VA examination (claims file date February 25, 2020). The Veteran submitted a post-hearing nexus opinion from a private examiner who agreed that the Veteran's restless leg syndrome was caused by his obstructive sleep apnea. See October 2024 S.C. opinion. This is sufficient to satisfy the third element of a claim for secondary service connection.

Therefore, service connection is granted for bilateral restless leg syndrome.

REASONS FOR REMAND

Entitlement to service connection for primary anemia is remanded.

The Veteran also submitted a positive nexus opinion regarding primary anemia. However, this opinion is based entirely on the fact that anemia is more common amongst Veterans than the general population, and that this disparity doubled between 1997 and 2015. The examiner went on to speculate that the Veteran could have contracted an infectious disease associated with anemia, such as Visceral Leishmaniasis. See October 2024 medical opinion.

Correlation is not causation. While anemia may be more prevalent among Veterans than among the general population, it does not follow that every Veteran with anemia (or any specific Veteran with anemia) contracted the condition due to their military service. The Board therefore does not find the October 2024 examiner's opinion to be persuasive, and cannot grant the claim based on that evidence.

The October 2024 examiner notes that the Veteran has never been evaluated for certain causes of anemia. This is because the Veteran did not attend an examination that VA arranged related to his claim. See December 12, 2019 Examination Request (noting that the Veteran did not appear for the examination). However, the record does not show that the Veteran was ever informed of this examination. 

Having determined that an examination was necessary, VA
 among the general population, it does not follow that every Veteran with anemia (or any specific Veteran with anemia) contracted the condition due to their military service. The Board therefore does not find the October 2024 examiner's opinion to be persuasive, and cannot grant the claim based on that evidence.

The October 2024 examiner notes that the Veteran has never been evaluated for certain causes of anemia. This is because the Veteran did not attend an examination that VA arranged related to his claim. See December 12, 2019 Examination Request (noting that the Veteran did not appear for the examination). However, the record does not show that the Veteran was ever informed of this examination. 

Having determined that an examination was necessary, VA had a duty to notify the Veteran of the examination so that he may attend. Its failure to do so (or to document such notice) constitutes a pre-decisional duty to assist error. the claim must be remanded for correction of the error.

1. Schedule the Veteran for a VA examination for anemia.  The examiner must review the claims file.

If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below.

The examiner is asked to provide a response to the following:

Is the Veteran's anemia at least as likely as not related to service?  

(continued on next page)

?

Provide a rationale to support the opinion(s).  

 

 

B. D. WATSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sparks, Robert S.

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.