Citation Nr: 1801990 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 08-06 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a low back disability, including secondary to right ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from November 1956 to October 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in September 2006 and February 2007 by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. The Board has remanded this matter for additional development on multiple occasions, most recently on July 2017. No argument concerning remand compliance has been raised since that remand. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's current right ankle and low back disabilities were not shown until many years after his military service, and are not related to his military service or any injuries incurred therein. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 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. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be warranted for a disability, which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a secondary service connection claim, the Veteran must show a present disability (for which service connection is sought); a service-connected disability; and competent evidence that the service-connected disability caused or aggravated the disability for which service connection is sought. Service connection for certain chronic diseases, to include arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from active service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Initially, the Board finds that the Veteran currently has right ankle and low back disabilities. Accordingly, the Board's decision shall focus on whether these conditions are related to his military service. Based upon a longitudinal review of the record, the Board concludes that service connection is not warranted for any current right ankle or low back disability. The Veteran attributes his current right ankle disability to an in-service injury and attributes his current low back disability to his right ankle injury. At his November 2012 Travel Board hearing, the Veteran attributed his right ankle condition to an in-service fall coming down a ladder. In a Request for Information Needed to Locate Medical Records, apparently signed by the Veteran in January 1996, the Veteran indicated that he tore ligaments and tendons carrying large cartons of ship supplies and was in a cast for about 6 to 8 weeks in approximately 1959. The Veteran and his spouse both testified that his right ankle was placed in a cast for roughly two months following his in-service injury. However, the Veteran's initial claim was for a left ankle injury. See VA Form 526 received March 31, 2006. Thereafter, he claimed an injury to the right ankle, indicating it occurred late in 1958. See VA Form 21-526 received May 11, 2006. In his October 2007 hearing before a Decision Review Officer, he reported the injury probably occurred in late 1959, then when his representative clarified that it was towards the end of his service, he stated that it was the 1960s when his leg "was out" and when he transferred divisions. The Veteran's service treatment records are completely silent as to any complaints of or treatment for an injury to his right ankle or low back. His separation examination, conducted in October 1960, listed his lower extremities and spine as normal. As he has most consistently reported the injury occurred in late 1959 or in 1960, and that he had pain in the ankle since the injury, it is likely that such condition would have been mentioned on his separation examination if he was having problems with it. AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Following his separation from service, the first post service medical evidence referencing a right ankle or low back disability is dated in January 2005. This is over 44 years after the Veteran's discharge from the service. The Veteran has alleged he tore ligaments and tendons in the right ankle at the time of the injury, but the corpsman could not operate the x-ray machine and did not know how to treat ligament and tendon injuries. However, as a lay person, the Veteran is not competent to diagnose ligament, tendon, or bone injuries to the ankle and foot, as such matter requires medical testing and expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, his diagnosis of his reported injury is not competent medical evidence. As there is no competent evidence showing a right ankle disability during service, competent evidence linking his current condition with service is needed. A January 2005 private treatment report noted the Veteran's history of an in-service right ankle injury requiring a cast for two months. The private physician then noted that an acute bone injury could not be seen on x-ray examination of the right ankle, but that there was evidence of chronic arthritis that may be related to an old severe strain. However, the opinion provided is very speculative and lacking any supporting rationale. Accordingly, the opinion is afforded little, if any, probative weight. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that a doctor's statement that a veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative). Following VA examination in January 2014, the VA examiner diagnosed the Veteran with ankle pain and opined that there was no evidence in the service treatment records of an ankle injury or treatment, therefore the condition was not related to service. In March 2016 a VA orthopedist reviewed the Veteran's file and opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In rendering this opinion, the VA examiner determined that there was no evidence of an ankle injury or complaint in the service treatment records, and that it was more likely that his current condition was related to age or an intervening event. However, the examiner had been asked to provide an opinion assuming for the sake of argument that the Veteran suffered an injury to the right ankle in service. Accordingly, an additional opinion was obtained in March 2017. The March 2017 opinion was obtained from VA specialist, Y.K., M.D., PhD., Orthopedic Attending Surgeon and Clinical Assistant Professor. Following a review of the Veteran's entire claims file, Dr. K. opined that the Veteran's diagnosed ankle osteoarthrosis is less likely as not due to the Veteran's reported in-service ankle injury. In support of this opinion, Dr. K. noted the time between the initial injury and the diagnosis of ankle osteoarthrosis and the lack of any findings in service treatment records made the cause and effect relation unlikely. He further stated that he agreed with the opinion from the March 2016 VA orthopedist. This opinion was provided following review of the claims file and includes a rationale for the opinion provided. Accordingly, the Board finds this opinion is afforded greatest probative weight. While the Veteran has alleged having right ankle pain and disability since his injury in service, the Board finds the October 1960 separation examination showing normal lower extremities to be more probative than the Veteran's current assertions. Moreover, the Veteran and his wife are recalling events occurring more than 40 years previously, and the initial claim being for the left ankle and the change in the date of occurrence suggest some difficulty with the recollection of the event. Finally, the 2005 private treatment report noted the Veteran reported he was very active and wished to continue being such. His DRO testimony suggested he worked in mobile home sales/service as well as a furniture business that they had recently stopped as it had become too painful for the Veteran to lift furniture. Such suggests his ankle did not result in significant limitations until many years after his military service. In sum, the Board finds the Veteran's assertions of continued ankle disability since his injury in service to be less persuasive than other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). For the reasons set forth above, the Board finds that the most probative evidence of record indicates the current right ankle disability was not shown in service or for many years thereafter and is not related to service. Thus, the claim for service connection for a right ankle disability is denied. As the right ankle disability claim has been denied, there is no basis to establish service connection for a back disability as secondary to the right ankle condition. See 38 C.F.R. § 3.310. Moreover, there is no competent evidence suggesting the Veteran's current back disability, to include diagnosed thoracolumbar scoliosis and lumbar spondylosis, arose in service or are related to service. Accordingly, service connection for a low back disability is also denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a right ankle disability is denied. Service connection for a low back disability, including secondary to right ankle disability, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs