Citation Nr: 1721965 Decision Date: 06/14/17 Archive Date: 06/23/17 DOCKET NO. 12-32 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a right ankle disorder. REPRESENTATION Appellant represented by: Carolyn Kerr, Agent ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from April 1970 to January 1972. This matter came before the Board of Veterans' Appeals (Board) from an August 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board, most recently in July 2015. FINDINGS OF FACT The right ankle disorder was not present until many years after service, is not related to service, and is not secondary to the service-connected low back disability. CONCLUSION OF LAW The criteria for service connection for a right ankle disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that the duty to assist has been satisfied. The service medical records, VA treatment and examination records, and post-service medical evidence identified by the Veteran have been obtained. The Veteran has not identified any outstanding, existing evidence that could be obtained to substantiate the claim decided herein. The Veteran was afforded an appropriate VA examination, and probative evidence as to whether the Veteran has a right ankle disorder related to service or a service-connected disability has been obtained. Finally, the Board is satisfied that there has been substantial compliance with the directives issued in the Board remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Regarding the previous Board remands, the record includes the requested VA treatment records, probative opinions as to whether the Veteran has a right ankle disorder that is related to service or is secondary to the service-connected low back disability, and a probative opinion as to whether the in-service treatment for "bruised foot" resulted in a chronic disorder or residual. Accordingly, the Board will address the merits of the appellant's appeal. Legal Criteria Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). Where a veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The term "chronic disease" refers to those diseases, such as arthritis, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis A November 1971 treatment record reveals the Veteran's history of right foot pain since he twisted it a week earlier. The diagnosis was a bruised right foot. X-ray images were negative for fracture. The Veteran was provided an Ace bandage and told to perform light duty for three days. The 1972 separation examination reveals normal clinical findings for the lower extremities and feet. The Veteran reported foot trouble but denied painful or swollen joints or joint deformity. A November 1976 VA examination record reveals the Veteran's history of landing on his feet with his legs in extension after falling from a telephone pole during service. The Veteran only reported a history of radicular back pain. He denied focal weakness in the legs. Examination revealed normal gait. Private treatment records dated in 1980 and 1981 reveal findings of normal gait. A September 1988 VA examination record reveals the Veteran's history of breaking the right ankle and left lower leg in a motorcycle accident in 1986. Examination revealed that the right ankle was slightly swollen. There was pain on pressure at the right medial malleolus. There was full range of motion but slight pain on medial deviation. The Veteran was unable to heel walking due to right ankle pain. X-ray images were negative for fracture, dislocation, or bony abnormality. An October 1996 VA medical certificate reveals the Veteran's history of right ankle pain since twisting the ankle while exiting his motor vehicle the previous Sunday. Examination revealed tenderness below the right medial malleolus and minimal ecchymosis. Strength was full. The diagnosis was sprain. A November 1996 VA treatment record reveals the Veteran's history that his ankle was "feeling better." An April 1997 hearing transcript reveals the Veteran's history that he had "no problem with the [right] ankle." A July 1998 VA examination record indicates that there was normal alignment of the right ankle. There was no swelling or deformity, and power was "satisfactory." X-ray images showed no residual of fracture. A July 2007 VA treatment record reveals the Veteran's history of bilateral ankle pain with associated imbalance. An August 2007 VA treatment record reveals the Veteran's history of right ankle pain since a motorcycle accident in 1986. Examination revealed tenderness. X-ray imaging revealed no evidence of fracture, dislocation, or abnormality. The diagnosis was right ankle pain. A May 2010 VA examination record reveals the Veteran's history that he first noted right ankle weakness in 2004. He explained that the ankle would give out without warning. He reported consistent symptoms since 2004. X-ray images showed mild degenerative changes. The examiner diagnosed degenerative joint disease. The examiner determined that the degenerative joint disease was not caused by or a result of the service -connected low back disability. The examiner explained that there was no credible evidence that a low back condition will result in a right ankle condition. A March 2014 VA examination record reveals the Veteran's history of right ankle problems since he fell off a telephone pole in 1970. He reported that he was given a permanent profile for his ankle at that time. He indicated that he broke the foot in 1986. He added that doctors had told him that the bones in his ankle were deteriorating from the way he had walked for over 30 years. X-ray imaging of the ankles was normal. The examiner determined it was less likely than not that the right ankle disorder was incurred in or caused by service. The examiner explained that the Veteran was not seen nor treated for a right ankle condition during service, that there is no medical evidence of a disease or injury to the right ankle during service, that the separation examination revealed normal clinical findings, and that the first evidence of a right ankle condition was in 1996, 24 years after service, when the Veteran sprained it stepping out of a truck. The examiner noted that the pertinent diagnosis was degenerative changes in the right ankle. The examiner determined the degenerative changes in the right ankle were related to the Veteran's age. The examiner explained that the degenerative changes "would not be unusual in a person the veteran's age." The examiner further determined the right ankle disorder was not caused by the service-connected low back disability. The examiner noted that the Veteran injured the ankle after service, including in a motorcycle accident, and that electromyogram was negative for nerve damage in the legs from the back. The examiner reported that the "weight of the medical literature is against trauma to the back causing degenerative changes in the ankle" and that the Veteran had mild degenerative changes in both ankles which was "not unusual in a person veteran's age and is related to the aging process." The examiner noted that after service the Veteran was able to work as a machinist and ride a motorcycle, hunt, and fish. Thus, the examiner found the Veteran's right ankle condition was not caused by his back condition or falls related to his back condition. Finally, the examiner determined the right ankle disorder was not aggravated by the low back disability. The examiner explained that although the Veteran reported falls due to leg imbalance which the Veteran attributed to the back disability, there was no medical evidence of these falls, and the EMG did not show any nerve damage from the Veteran's back causing any problem down the Veteran's legs. The examiner added that the degenerative changes were related to the aging process. A March 2015 VA medical opinion reveals the determination that the Veteran's right ankle disorder was less likely than not related to the service-connected low back disability, including any associated altered gait. The physician noted that the Veteran fell off a pole while in service and was found to have a slight anterior wedge of the body of L2. The physician explained that "this does not compromise the posterior elements of the spinal cord." The examiner added that the Veteran sustained injuries in a motorcycle accident in 1986 and that EMG was negative for radiculopathy. X-ray imaging in March 2015 was normal. A September 2015 VA examination record reveals the determination that the Veteran did not have degenerative joint disease of the right ankle. The physician found no nexus between the Veteran's current right ankle discomfort and service, including the in-service treatment for a twisted foot. The examiner noted that no residual or chronic disability was shown by the service medical records or the postservice records. The examiner added that the Veteran was not medically discharged from service but was medically qualified to complete his service and that he worked as a machinist and then on vehicle tires after service, prior to a motorcycle accident. Following the review of the evidence, the Board must conclude that service connection is not warranted for a right ankle disorder. Initially, the Board finds the right ankle disorder, diagnosed as degenerative joint disease, was not present until more than one year after the Veteran's service. The medical records dated during service reveal no complaint or finding of a right ankle disability, and the initial diagnosis of degenerative joint disease dates in 2010, 38 years after discharge from service. The Board notes that the record includes treatment for a "bruised" right foot during service and history of "foot trouble" at separation and that the Veteran has reported right ankle pain since an in-service fall. It is unclear whether the "foot" injury and history of "foot trouble" refer to the right ankle. Even assuming they do, however, the record indicates that the 1971 injury and history at separation were not indicative of the presence of the current disability. Notably, clinical examination was normal at separation, and X-ray imaging was negative for abnormality in September 1988, July 1998, and July 2007. Additionally, the record includes an opinion from a VA examiner that the right ankle disorder was not incurred in service. Although the Veteran is competent to report his symptomatic history, the Board finds the Veteran's current history of right ankle symptoms since service is not credible because it is contradicted by the medical record. Specifically, the Veteran reported the existence of right ankle symptoms only since the 1986 motorcycle accident in September 1988, October 1996, and August 2007. The Board further finds the right ankle disorder is not related to service. VA examiners have determined that the right ankle disorder is not related to the Veteran's service, including the in-service twisted foot. The medical opinions indicate that the "twisted foot" was an acute condition that resolved and that the current degenerative joint disease is due to age. There is no medical opinion of record linking the right ankle disorder to service. Finally, the Board finds the right ankle disorder is not secondary to the service-connected lumbar spine disability, including any associated falls or altered gait. VA examiners have determined that the condition was not caused or aggravated by the Veteran's low back disability. The medical opinions explain that the medical evidence does not show that the low back disability has resulted in instability of the right lower extremity, noting that EMG studies were negative for radiculopathy. Moreover, the medical opinions indicate that the current disability is consistent with the Veteran's age, which indicates that it was not caused or aggravated by another condition. Although the appellant might believe that his right ankle disorder is related to service or the service-connected low back disability, the record does not suggest the appellant, who is a layperson, is competent to determine the cause of the current disability. As such, the Veteran's assertion of a relationship is not competent evidence of a nexus. In any event, the medical opinion against the claim is more probative than the Veteran's lay opinion. Accordingly, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. ORDER Service connection for a right ankle disorder is denied. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs