Citation Nr: 1800727 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 13-08 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a low back disability, claimed as secondary to a right ankle disability. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to June 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board previously remanded this claim in November 2015. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the remand orders in regards to the claims herein decided and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. A right ankle disability is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of service discharge. 2. A low back disability is not shown to be causally or etiologically related to any disease, injury, or incident in service, did not manifest within one year of service discharge, and was not caused or aggravated by the Veteran's right ankle disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein decided, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board has reviewed all of the evidence in the Veteran's claims file, including his service treatment records (STRs), post-service treatment records, VA examination reports, hearing testimony, and statements submitted in support of his claims. In this regard, the Board notes that, although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, all of the extensive evidence of record. Indeed, it has been held that while the Board must review the entire record, it need not discuss each piece of evidence in rendering a decision. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis will focus specifically on the evidence that is needed to substantiate the Veteran's service connection claims. I. Service connection claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 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 of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including 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. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292 (1991). 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Right ankle disability The Veteran contends that he currently suffers from a right ankle disability as a result of an injury he sustained while in the service. Specifically, he asserts that he has had right ankle pain ever since lacerating his right ankle in service after falling from a pole and being stuck by a sharp piece of metal in the right medial ankle (claimed as heel). Service treatment records show that the Veteran was seen in February 1969 for a laceration on the heel of his right foot. He received six stiches at that time and was returned to light duty. In May 1969, he was treated for complaints of having stepped on a nail, but it is not clear what foot was involved. A tetanus shot was administered and hot soaks were prescribed. Six days later inflammation was noted around the puncture wound and an X-ray was recommended to rule out osteomyelitis. In March 1970 the Veteran was treated for right arch pain. He was noted to have chronic difficulty in the right ankle which was easily sprained. He was given an ace bandage and plantar arch supports and was advised to return to the clinic as needed. In January 1971, he was noted to have a plantar wart on his right foot which was removed with nitrate. His June 1971 separation examination report shows a normal clinical evaluation of the feet. He reported on a June 1971 Report of Medical History that he had a positive history of foot trouble. This report also shows that he had a wart on his foot. Post-service evidence shows that right ankle X-rays were taken in November 2008 revealing an approximate 2 x 0.8 cm lucent area in the posterior medial aspect of the right tibia of questionable nature and significance, with the possibility of it being secondary to old trauma or superimposed infection. These X-rays also revealed a tiny calcific density near the medial malleolus on the right which could represent soft tissue calcification secondary to calcific tendinitis versus chip fracture which may be old. The Veteran was assessed as having calcaneus spur trauma to his right foot. The Veteran underwent a VA examination in July 2009. The examination found no edema, effusion, or increased heat or redness. There was mild tenderness to palpation but no loss of function. Active and passive range of motion testing revealed dorsiflexion to 10 degrees (with pain at 10 degrees) and plantar flexion to 45 degrees (with pain at 45 degrees). Three repetitions caused no additional loss of range of motion, but it did produce increased pain, weakness, lack of endurance, fatigue, and incoordination. After X-rays, the diagnosis was small plantar calcaneal spur with calcific tendonitis versus old chip fracture. No nexus opinion was provided. In light of the of the right ankle findings in service, post service, and the Veteran's report of right ankle pain ever since service, he was afforded a VA examination in October 2012 in order to obtain a medical nexus opinion. See McLendon v. Nicholson, 2 Vet. App. 79, 81 (2006) (VA must provide an examination when there is competent evidence of a disability that may be associated with an in-service event, injury, or disease, or with a service connected disability, but there is insufficient information to make a decision on the claim). Unfortunately, the October 2012 examination report was found inadequate for rating purposes as it pertained to determining a nexus to service. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes to provide a VA examination, it must ensure that the examination is adequate). In this regard, the examiner noted that the Veteran had been treated for a right ankle laceration in service and reported that based on examination and all available documentation, he had residuals, status post right ankle laceration (claimed as right heel laceration), with corresponding right medial ankle tenderness and well-healed, stable scar. However, he also opined that such residuals, status post right ankle laceration were less likely as not related to in-service treatments, finding that while right ankle pain was corroborated as having occurred during service (with a cited diagnosis of right ankle sprain (03/05/1970), and right heel laceration (02/17/1969)), it was inconsistent with the clinical presentation of residuals, status post right ankle laceration. The Board found this opinion inconsistent and requested an additional medical opinion for clarification. In January 2016, the Veteran was afforded an additional VA examination. The examiner found that the Veteran did not have a current diagnosis associated with his claimed right ankle condition. Furthermore, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner offered the rationale that the Veteran did not have a diagnosis of an ankle joint problem but did have pain in the scar caused by his in-service injury. The examiner found that it was less likely than not that the Veteran had an ankle condition of any kind and certainly not one related to his in-service described injury. However, the examiner did not mention the prior VA examinations or the Veteran's prior right ankle diagnoses. Therefore in May 2017 the Board requested an additional opinion. In July 2017 the Veteran underwent another examination. The examiner opined that the Veteran had two diagnoses: right ankle pain and a right ankle bone cyst. In regard to the right ankle pain, the examiner opined that such was less likely than not related to his service. The examiner provided the rationale that the Veteran had noted treatment of his ankle in service but that he had a normal service examination in 1971 and that he noted on his June 1971 Report of Medical History that he had foot trouble in the form of a wart. The examiner further noted that since discharge, there was no medical treatment of the right ankle for 37 years until he presented to the VA system in 2008. The examiner referred to the Veteran's normal examination in January 2016 and his MRI in 2013 which showed no ligament sprain or tendonitis. In regard to the right ankle bone cyst, the examiner stated that an opinion as to its etiology could not be given. He noted that the diagnosis was made after an MRI in June 2013 and that it had been noted on an X-ray in November 2008. However, as there was no other X-ray documentation of the condition either prior to, during or after service until 2008, there was no way to determine how long the cyst had been present. Therefore, the examiner stated that he was unable to provide an opinion as to whether the bone cyst could be related to military service. Based on the foregoing, the Board finds that the Veteran has satisfied the in-service element of service connection. Furthermore, the Board finds that the second element of service connection has been met as the Veteran has current diagnoses of right ankle pain and right ankle bone cyst. The Board notes that neither of the Veteran's diagnoses warrant presumptive service connection consideration as they are not listed under 38 C.F.R. § 3.307 and 3.309. Therefore, the question remaining before the Board is whether direct service connection can be established. The Board finds that service connection for right ankle pain cannot be established, as pain is not a disability rather it is a symptom. The Board has considered the Veteran's allegations that he experiences pain in his right ankle. In this regard, while he is competent to report having such symptoms, the evidentiary record does not reflect that this pain has been attributed to any specific disability. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (a symptom, 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; "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"). Furthermore, the Board finds that any determination as to the presence of the claimed disability is medical in nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1977 (Fed. Cir. 2007). Thus, the Veteran, as a layperson, is not competent to offer a diagnosis with respect to the cause of his right ankle pain as he does not possess the requisite specialized knowledge. In this regard, such a diagnosis requires medical expertise and testing. Therefore, as such is a complex medical question, the Veteran is not competent to offer a diagnosis in this regard. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Veteran's claim as to right ankle pain must be denied, as the evidence of record shows no current disability for which service connection can be granted with respect to the Veteran's right ankle. See Brammer, supra (in the absence of proof of the claimed disability, there can be no valid claim). Therefore, the remaining inquiry is whether the Veteran's right ankle cyst is related to his military service. In this regard, the July 2017 examiner addressed the evidence related to an in-service event, disease, or injury and a possible nexus, or relationship, between such and the Veteran's current disability. Furthermore, he is the only examiner who addressed the Veteran's right ankle cyst. He determined that he could not give an etiological opinion as there was no MRI or X-ray evidence of the Veteran's bone cyst prior to 2008. While the Board acknowledges that this does not constitute a negative nexus opinion, there is also no positive nexus opinion of record. Therefore, no etiological opinion exists. The Board has considered the Veteran's statements linking his current right ankle disability to his military service. In this regard, the Board notes the Veteran is competent to report symptoms experienced in service and since such time. However, the Veteran is not competent to attribute his current condition to any instance of military service. He has not demonstrated that he is an expert in determining the etiology of an ankle disability and is a layperson in this regard. While it is in error to categorically reject layperson nexus evidence as incompetent, the Board is allowed to consider the facts of a particular case to determine the layperson's competence. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor to consider is the complexity of the question to be determined. Jandreau, supra (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer). In this regard, the Board finds that the diagnosis and etiology of a right ankle cyst is a complex question that requires medical expertise. See Woehlaert, supra (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Determinations as to the diagnosis of right ankle cyst and its etiology require knowledge of the body's inner workings. Moreover, while the Veteran has noted onset of ankle problems in service, to include by way of continuity of symptomatology, the evidence of record does not support such contentions. Regardless of the Veteran's statements with respect to symptoms, he is not competent to provide evidence as to the etiology of such symptoms. Accordingly, as the Veteran's current right ankle cyst is not shown to be causally or etiologically related to any disease, injury, or incident in service, service connection for such disorder is not warranted. In reaching the above decisions, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right ankle disability. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. B. Low back disability The Veteran maintains that service connection is warranted for a low back disability as secondary to his right ankle disability. The Board notes that the Veteran has not contended, and the evidence does not show, that a low back disability had its onset during service, within one year of separation from service, or is otherwise causally related to the Veteran's military service. In the instant case, the Board finds that an opinion with regard to such matter is not necessary since, as will be discussed below, there is no evidence of the Veteran's low back disability for many years following service. Furthermore, the Veteran's service treatment records are entirely negative for any complaints, treatment, or diagnoses referable to a chronic low back disability. Furthermore, the record does not show diagnoses of a low back disability, specifically degenerative changes for many years post-service. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Rather, as noted previously, the Veteran claims that his low back disability is secondary to his right ankle disability, and therefore direct and presumptive service connection are not warranted. As far as secondary service connection, as the Veteran's right ankle disability is not service connected, his low back disability cannot be secondarily service connected. Therefore, based on the foregoing, the Board finds that service connection for a low back disability as secondary to a right ankle disability to the Veteran's service is not warranted. In reaching this decision, 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. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a right ankle disability is denied. Service connection for a lumbar spine disability claimed as secondary to a right ankle disability is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs