Citation Nr: 1756987 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 10-36 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for residuals of a left ankle and foot injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel INTRODUCTION The Veteran served on active duty for training in the U.S. Army from July 1981 to November 1981 and active duty in the U.S. Marine Corps from April 1982 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). In March 2014, September 2016, and August 2017, this issue was remanded to the Agency of Original Jurisdiction (AOJ). There has been substantial compliance with the remand instructions and this matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). These appeals were processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. FINDINGS OF FACT A left foot and ankle disability was not manifest during service and is not otherwise attributable related to service. CONCLUSION OF LAW A left foot and ankle disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Compliance with Stegall As noted in the Introduction, the Board previously remanded this matter in March 2014, September 2016, and August 2017. With respect to the issue decided, the Board instructed the RO to obtain any outstanding VA treatment records, attempt to associate the Veteran's private treatment records with the claim file, obtain a VA opinion, and readjudicate the claim. The claim file contains the requested outstanding evidence and VA opinion. The RO readjudicated the claim most recently in an October 2017 Supplemental Statement of the Case (SSOC). As a result of these steps taken, the Board finds that there has been substantial compliance with its previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). II. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Additionally, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. III. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). An alternative method of establishing the second and third elements of service connection for those disabilities identified as "chronic" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). However, the Veteran's diagnosed foot and ankle conditions are not listed under 38 C.F.R. § 3.309(a), and thus not applicable in this case. In addition, certain chronic disabilities are presumed to have been incurred or aggravated in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Again, these provisions are not applicable in this case. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. 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(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed.Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). The Veteran contends that he is entitled to service connection for a left foot and ankle condition arising from an ankle sprain in service. Review of his service treatment records (STR) show that the Veteran suffered an ankle sprain in March 1983, while on active duty and deployed to Lebanon. He sought treatment four days after the injury and was prescribed an ankle wrap and heat applications. There was no follow-up. The STR's do not specify which ankle was affected. There are no other complaints or treatment mentioned in the Veteran's STR's for his feet or ankles. There is no separation examination of record. The Veteran received a disability discharge for an unrelated disorder. Following service, the Veteran worked as a transit system technician, electrician helper, and janitor. Post service, a left foot and an ankle condition are first mentioned in September 2008 VA treatment records. He was afforded an X-ray, which demonstrated no fractures or other acute osseous or articular abnormalities. It was determined that the Veteran had a left posterior tibial dysfunction with pes planovalgus foot deformity and associated traction on the post tibial nerve, causing tarsal tunnel like symptoms. October 2008 private treatment records reflect that the Veteran denied any history of trauma to his left foot or ankle. The Veteran filed for compensation for a left foot condition in January 2009. The Veteran reported that he had been seeking treatment at a VA medical center for over seven years because of his foot. See January 2010 Notice of Disagreement. VA treatment records from 2009 to the present show continuous treatment for his left ankle and foot. The Veteran was afforded a VA examination in July 2011. He told the examiner that he initially injured his foot in 1982, when he fell in a hole while in the military. He started wearing a brace on his left foot in November 2008. After reviewing the September 2008 X-ray, the examiner determined that the left foot bones were well mineralized and the joint spaces were maintained. No particular erosions were seen. Small spurs projected from the calcaneus at the insertion of the deep plantar fascia and Achilles tendon. The soft tissues were unremarkable. The examiner diagnosed the Veteran with left pes planus. The Veteran did not have any concerns or complaints regarding his left ankle during the examination. The examiner determined that the September 2008 X-rays demonstrated a normal left ankle. After reviewing the Veteran's claim file and examining the Veteran, the examiner concluded that the Veteran's current left foot condition was not related to his military service because the in service incident was acute and there were no further complaints. Pursuant to the March 2014 remand, an addendum opinion was requested and received in April 2014. The examiner pointed out that the Veteran had a podiatry consult in November 2001, and there were no left foot or ankle complaints, however the right foot was treated for callouses and fissure. The examiner stated that she believed the Veteran's left foot and ankle condition was less likely than not related to his military service because there was no evidence that the Veteran sought medical treatment for a left foot or ankle condition for nearly 25 years following military separation. An addendum opinion was again requested in the September 2016 Board remand. In November 2016 the examiner stated that the Veteran worked in construction for about 25 years following separation, and it would be pure speculation to link the Veteran's March 1983 ankle injury to his foot left foot condition. As noted above, this issue was again remanded in August 2017 for an addendum opinion. An October 2017 addendum opinion summarized the Veteran's medical history, including that the Veteran began receiving treatment at VA in 1997, and started treatment for his right foot in 2001, but did not complain of left foot pain until 2008. The examiner stated that she considered the Veteran's statements of pain and numbness, but notes that while the Veteran saw a podiatrist in 2002, he did not mention any complaints for his left foot or ankle until 2008. The examiner went on to explain the nature and etiology of the Veteran's current foot and ankle diagnosis. She said that posterior tibial tendon dysfunction is an overuse condition. Risk factors that can predispose to ankle tendinopathy include improper training, poor biomechanics and improper footwear, as well as foot malalignment, leg length discrepancy, joint laxity, and obesity. She concluded that it was extremely unlikely that an original tendon injury would take 25 years before starting to deteriorate and manifest itself. She determined that it was more likely that years of hard physical labor, with repetitive overuse, ill fitted foot wear, and obesity (Veteran had gained 40 pounds since discharge) contributed to the development of the Veteran's present foot condition. The October 2017 VA medical opinion evidence is clear in that a current disability of a left foot and ankle condition is not related to service. The Board finds the VA opinion to be well-supported and thorough. In a November 2017 brief to the Board, the Veteran's representative contended that the VA opinions were not adequate because they were based only on the absence of treatment and because the Veteran's lay statements of symptoms were not considered. The Board finds that in aggregate the examinations and opinions are adequate to decide the claim. The examiners noted the service record or Veteran's report of the injury in service, the first evidence of treatment, and the current symptoms reported by the Veteran along with their clinical observations. Although adjudicators may not reject the credibility of lay statements solely on the basis of a lack of documented treatment, medical authorities in this case acknowledged the Veteran's reports and may consider the nature and severity of injuries, subsequent activities, reported onset of symptoms, and may factor the history of treatment in their clinical assessments. Clinicians noted on several occasions after service that there were no recurrent or chronic ankle deficits and that left foot calluses and pes planus that were not residuals of an ankle sprain. These observations weigh against any contention of continuity of symptoms arising from the ankle sprain. Clinicians also considered the Veteran's work history. Therefore, the Board finds that the opinions in aggregate, and particularly the most recent opinion, are sufficient to decide the claim because the Veteran's lay statements were considered and that the opinions were not solely based on the absence of treatment for many years after the service injury. The Board has considered the general reports of the Veteran that his left ankle and foot disabilities are the result of a March 1983 in-service ankle sprain. In that regard, individuals can attest to factual matters of which he or she has first-hand knowledge and the Veteran's assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of the left foot and ankle disabilities falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In light of the foregoing, the Board affords the October 2017 VA medical opinion significantly greater probative weight. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. ORDER Entitlement to service connection for a left ankle and foot disability is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs