Citation Nr: 1755058 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-26 065 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for a left ankle/foot disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from June 1962 to August 1966. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the RO. The Veteran testified at a hearing held at the RO in June 2012 before a Decision Review Officer (DRO). A transcript of that hearing has been made a part of the record. The Board remanded the appeal in July 2016 and May 2017 for further development of the record. The development has been completed and the case has been returned to the Board for appellate consideration. VA has provided all appropriate notification and assistance to the Veteran in the development of the claim. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for an appropriate medical inquiry. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. FINDING OF FACT The Veteran's current left ankle/foot disability is not attributable to disease or injury sustained during his period of service and osteoarthritis of the left ankle was not manifest within one year of separation from service. CONCLUSION OF LAW The criteria for service connection for a left ankle/foot disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection - Left Ankle/Foot Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, degenerative arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, degenerative arthritis is a chronic disease. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran asserts that his left ankle/foot disorder onset due to injury sustained in service during boot camp. The service treatment records do not contain documentation of complaints of or treatment for a left ankle/foot disability. Dated approximately 18 years after service, an April 1984 private treatment record documents the Veteran's complaint that he experienced swelling of the feet or ankles approximately 16 years earlier. He reported that he had experienced swelling of the feet or ankles in the past year. He reported that physical activity on his job was moderate. He reported having from four to six hours per week of physical activity outside of his job. He engaged in light sports throughout the year, including moderate sports during the winter months only and strenuous sports during the summer months only. An August 1990 treatment record reflects that the Veteran walked a lot at work. The Veteran complained of a 30 year history of left ankle pain. He sustained no specific injury. He reported that his disorder had been variously diagnosed including "arthritis" and "joint malformed." He stated that the pain had worsened in the last five years and his left ankle disorder was manifested by constant swelling. Examination of the left ankle showed no obvious swelling or deformity. The area where the Veteran indicated swelling appeared proximal to the ankle joint and was actually along the posterior tibial tendon. He had good stability to anterior and posterior drawer testing. X-ray findings showed no osteophyte formation. There was some flattening of the talus. He was prescribed anti-inflammatory and encouraged to try Ibuprofen. He was advised to try a shoe modification using a crepe sole. If symptoms persisted, he was encouraged to schedule podiatry treatment for a more formalized orthotic and custom shoe modification. A September 1997 VA treatment record reflects that the Veteran had childhood developmental deformity of the left ankle. An additional September 1997 treatment record documents the Veteran's complaint of intermittent muscular pain in the left ankle, described as a "congenital defect." The Veteran complained of daily pain in in his left ankle, worsened in rainy weather. On examination, the assessment was degenerative joint disease (DJD) of the left ankle, which was again described as "congenital." A November 1997 treatment record reflects the Veteran's complaint of left ankle pain. Findings of a November 1997 x-ray of the left ankle showed that the soft tissue and osseous structures were normal. There were no degenerative changes or fracture. The radiologist concluded "negative left ankle." A December 1997 treatment record reflects that the Veteran was evaluated for foot orthotics. A February 2005 operative report documents that the Veteran underwent left talar navicular fusion for his severe left talar navicular arthritis. Treatment records from February 2005 to January 2006 document post-surgical follow-up treatment. A July 2011 VA treatment record documents the Veteran's complaint of swelling of the left ankle. A November 2015 VA treatment record documents the Veteran's complaint of chronic left ankle pain. On examination, the assessment was chronic pain of the left ankle. The November 2016 report of VA Foot Conditions examination documents diagnoses of plantar fasciitis and residuals of left talar navicular fusion of the left foot. The corresponding report of VA Ankle Conditions examination documents diagnosis of osteoarthritis of the left ankle. The Veteran reported that in 1962 while at boot camp he was climbing a fence on the obstacle course and injured his left ankle when he jumped down. He did not go to "sick bay." After boot camp he reported that he twice sought medical treatment and was given aspirin. He reported that he continued to have problems if he engaged in activities that required him to be on his feet but he had no problems if he was not on his feet. After separation, he experienced flare-ups of ankle pain with use. He reported that in the 1980's he was diagnosed with a talar/navicular problem. Fusion of that joint was recommended. In the 1990's he sought treatment at the VA. Around 2002 he moved to New Jersey, saw an orthopedist and underwent fusion of the navicular/talus bones. He was out of work for six months. He complained that more recently, he has experienced increasing pain in the ankle and foot. Presently, he experienced moderate pain. The physician opined that the Veteran's claimed left ankle/foot disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. Documenting review of the evidence of record, the physician explained that at discharge the Veteran's foot and lower extremity evaluation was normal. The physician noted that the Veteran's complaint in the April 1984 treatment record was of swelling and not pain and approximated the date of onset of symptoms to two years after his discharge from service. The physician also noted that the April 1984 treatment record reflected that the Veteran was capable of strenuous sports outside of work. In addition, the August 1990 treatment record documents the Veteran's report that he had sustained no specific injury related to his left ankle/foot. For these reasons, the physician concluded that it was less likely than not that the Veteran's current left ankle/foot disability was the result of his military service. In the May 2017 VA examination addendum, the physician reiterated that clinical evaluation of the foot and lower extremities was normal at separation. The physician noted that based on review of the evidence of record and the Veteran's reports, the onset of the Veterans symptoms could have been at age 14, age 16, during military service or subsequent to his military service. The physician considered the Veteran's reports of not reporting to sick call for treatment during service, his ex-wife's statement and his less physically demanding job subsequent to service. The examiner found that no specific diagnosis could be identified as having a nexus to his military service. The physician noted that based on the Veteran's reported history, the date of onset of the disorder was uncertain. The physician concluded that it was less likely than not that the Veteran developed a chronic ankle or foot condition during or due to his period of military service. Though the Veteran has a current left ankle/foot disorder, the preponderance of the evidence is against a finding of a linkage between the onset of the left ankle/foot disorder and a period of service. Rather, the evidence shows that the current left ankle/foot disorder had no etiological relationship to an in-service injury (See November 2016 VA examination report and May 2017 VA examination addendum). Further, though date of onset of the disorder was uncertain (based on the Veteran's reported history), it was less likely than not that the Veteran developed a chronic ankle or foot condition during or due to his period of military service) (See May 2017 VA examination addendum). This conclusion of no nexus to service is based on facts presented by both the service treatment records and the assertions made by the Veteran at the time of the VA examination. There is also no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between any current left ankle/foot disorder and a period of the Veteran's service. Additionally, there is no evidence of left ankle arthritis in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1339. No examiner in service, or since, has established chronicity or an underlying chronic disease process in service. In sum, characteristic manifestations sufficient to identify the disease (arthritis) entity were not noted. Further, there is no demonstration of continuity of symptomatology or evidence of arthritis within one year of separation from service. Thus, service connection cannot be awarded on a presumptive basis. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. The Veteran is not competent to link his left ankle/foot disorder to a period of service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). The Veteran is not competent to establish that his current left ankle/foot disorder onset due to injury sustained during his period of service. The Veteran is not competent to offer opinion as to etiology of any current left ankle/foot disorder. The question regarding the etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are conjecture and do not rise to the type of evidence addressed by Jandreau. The claim of entitlement to service connection for a left ankle/foot disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a left ankle/foot disorder is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs