Citation Nr: 1645351 Decision Date: 12/02/16 Archive Date: 12/19/16 DOCKET NO. 12-28 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Counsel INTRODUCTION The Veteran served on active duty from May 1987 to July 1991, as well as Air Force National Guard service from July 1994 to December 1997, and Army National Guard service from December 1997 to December 2000. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a June 2013 video conference hearing. These matters were previously before the Board in January 2015 when, in part, they were remanded for additional development. FINDINGS OF FACT 1. The Veteran does not have a current right ankle disability. 2. The Veteran does not have a current left ankle disability. CONCLUSIONS OF LAW 1. Service connection for a right ankle disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. Service connection for a left ankle disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that he has a right and left ankle disability resulting from stepping off a bus into a grate or culvert while on ACDUTRA for the 1996 Olympics in Atlanta, Georgia. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically with respect to Reserve members, diseases or injuries incurred or aggravated while performing active duty for training (ACDUTRA) are eligible for service connection. 38 C.F.R. § 101(24), 106, 1131. However, if performing inactive duty for training (INACDUTRA), only injuries sustained during that time are eligible for service connection. Id. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran filed the instant claim for service connection for a right and left ankle disability in January 2011. At the outset, the Board notes that the evidence includes a July 1996 Letter of Appreciation from the Atlanta Air National Guard thanking him for his support to the security operations at the 1996 Summer Olympic Games in Atlanta, Georgia. Thus, to the extent the Veteran has contended and has submitted supporting lay statements that he was on ACDUTRA during the Olympics in Atlanta, Georgia in 1996, such is conceded. Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right and left ankle disability as he does not have a current diagnosis of such disability. Given the lack of competent evidence showing that the Veteran has a right or left ankle disability, or that such is related to service, the claim for such must be denied. Brammer, 3 Vet. App. at 225; see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, the Board notes that the Veteran was afforded a VA examination in April 2015 that revealed no ankle diagnosis. It was noted that there was no evidence that document's the Veteran's injuries or treatment for them. While he has pain and was mildly tender on examination, there were no physical findings to support any ankle diagnosis. Therefore, it was opined that it was less likely that the Veteran's claimed condition was incurred or caused by his claimed in-service injury as there is no diagnosis. Notably, June and August 1997 reports of medical examination found the Veteran's feet and lower extremities were normal on clinical evaluation. Additionally, in annual medical certificate reports in September 1996, March 1998, October 1998, May 1999, and February 2000, the Veteran denied any current medical or dental problems, and denied any treatment by a physician or other health care provider since his last periodic physical examination. Indeed, the only complaint in the above annual medical certificate reports was a complaint of back pain in the May 1999 report. The Board also emphasizes that symptoms such as "pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). While the Veteran is competent to attest to symptoms such as right and left ankle pain and ankle problems, he is not competent to diagnose an underlying musculoskeletal disability associated with such symptoms, as to do so requires medical expertise. See July 2013 B. Miller correspondence (stating the Veteran has experienced problems with his ankles since the injury at the Olympics). The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for a right ankle disability is denied. Service connection for a left ankle disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs