Citation Nr: 1805447 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 15-15 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel INTRODUCTION 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). The Veteran had active duty military service from June 1960 to December 1960 and from October 1961 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a right ankle disability. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in February 2017. A copy of the transcript of the hearing has been reviewed and associated with the claims file. This matter was before the Board in June 2017, at which time it was remanded for additional evidentiary development, including obtaining updated medical records and an addendum VA medical opinion to determine the etiology of the Veteran's right ankle disability. Pursuant to the remand instructions, updated medical records were associated with the claims file, a VA examination was performed, and the RO issued a Supplemental Statement of the Case (SSOC) in December 2017. Accordingly, the Board finds that the RO fully complied with the remand instructions. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's right ankle disability had its onset during military service or is otherwise related to such service. CONCLUSION OF LAW The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3156(a), 3.159, 3.326(a) (2017). In this case, VA's duty to notify was satisfied through a letter dated in July 2013, which fully addressed all notice elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent records, including treatment records, and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Service treatment and personnel records are associated with the claims file. Available post-service medical records have been obtained. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran was provided VA examinations in December 2013 and August 2017. The Board finds these examinations are adequate for the purpose of the claim adjudicated herein. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal Criteria Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a). To establish service connection the evidence must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Factual Background and Analysis The Veteran filed a claim for a right ankle disability in May 2013 and asserts that it is the result of an injury incurred in service after he fell in a hole. The Veteran has been assessed with recurrent chronic right ankle sprains since March 2001 and he was assessed with Achilles tendinitis of the right ankle in March 2010. See December 2013 VA Examination Report. Thus, a present disability has been established by the evidence. The Veteran testified at a hearing in February 2017. He stated that he injured his right ankle after he fell in a fox hole in late 1961 or early 1962. The Veteran's service treatment records corroborate his testimony and indicate that he turned his right ankle on April 7, 1962. He presented for treatment the following day. X-rays were negative. Physical examination revealed swelling and the Veteran was prescribed crutches, bed rest, and was restricted from performing field duty. On April 12, 1962, the Veteran was doing well and he was instructed to return to duty. Based on the above, an in-service incurrence has been shown. The remaining question for consideration is whether the Veteran's current right ankle disability is related to the in-service right ankle injury. The Veteran asserts that his right ankle complaints continued periodically after service. Specifically, when he walked his right ankle would roll at times, causing his body to be thrown. Approximately 15 to 18 years ago his right ankle problems became more serious and prolonged and he sought medical treatment. The Veteran's post-service treatment records reveal that he fell in January 2001 due to his recurrent ankle sprain. In November 2009 it was reported that the Veteran had no specific trauma but had a history of a severe ankle sprain decades earlier that required a cast for a few months. The treatment report noted a history of right ankle pain for 4 to 5 years and he had recurrent mild sprains every few months. In March 2011, the Veteran fell again and his right ankle gave out. The VA physical therapist indicated that the Veteran complained of soreness, which was from an old injury to his right ankle he had while in the Army. There were additional medical reports indicating that his right ankle was giving out and a prior history of an ankle injury was noted. Furthermore, in February 2017, a history of multiple prior ankle sprains was noted, along with non-acute ankle pain. The Veteran was afforded a VA examination in December 2013, at which time he was assessed with a chronic right ankle sprain, an acute right ankle sprain that resolved on April 8, 1962, and Achilles tendonitis. The examiner concluded that the Veteran's right ankle disability was less likely than not incurred in or caused by the claimed in-service injury. As a basis for her opinion, she concluded that the Veteran had an acute ankle sprain in service that resolved in four days. He had an asymptomatic period of approximately thirty years before he began having symptoms of pain and swelling and had an acute injury to the ankle in 2001, with increased episodes of ankle instability since then. Accordingly, the examiner opined that the Veteran's current right ankle symptoms were related to his post-service injury in 2001. The Veteran underwent a subsequent VA examination in August 2017. At that time, the examiner assessed him with tendonitis, chronic recurrent ankle sprain, torn anterior talofibular ligament, and resolved acute ankle sprain. The Veteran reported his in-service injury and indicated that he did not seek medical attention for his ankle for over 20 years after leaving the military. He indicated that after leaving the military he worked as an orderly for 2 years, then as a truck driver for about 25-30 years full time, and currently he worked part time as a truck driver. The examiner reviewed the claims file, including the hearing testimony in which the Veteran indicated that he experienced right ankle symptoms in the years immediately following service, and concluded that it was less likely than not that his right ankle disability incurred in or was caused by the in-service injury or event. The examiner reasoned that the Veteran was seen for a transient ankle sprain while on active duty, which resolved with no sequela. He managed conservatively for 3 days with crutches and then returned to normal duty. He remained on duty for another 4 months and there were no further visits for ankle concerns. There are no further records regarding the right ankle pain becoming a recurring problem until over 20 years later. Accordingly, the examiner concluded it was extremely unlikely that the Veteran would have a significant ankle disability in the military that would manifest over 20 years later as a recurrent sprain. The Veteran reported that after he left the military, he worked as an orderly for about 2 years, which required him to be on his feet and do a significant amount of walking. The examiner indicated that according to the American Academy of Orthopedic Surgeons, if pain continues for more than 4 to 6 weeks, then the person may have a chronic ankle sprain. The Veteran's records indicate that he did not have a chronic ankle sprain in the military and his current ankle disability is due to his post military activities. After a review of the evidence, the Board finds that service connection for a right ankle disability is not warranted. In this regard, the evidence of record does not show that the Veteran's current right ankle disability is related to his in service injury. The evidence of record shows that the Veteran's right ankle injury in-service resolved by April 12, 1962, and he was instructed to return to duty. Furthermore, the Veteran did not complain of an ankle injury or pain during his June 1962 separation examination. The August 2017 examiner reviewed the file in its entirety and concluded that the Veteran's right ankle disability resolved in service and his current right ankle disability is not related to his in service injury. This is based on the fact that the Veteran's right ankle disability did not become a recurring problem until 20 years after service. The Board acknowledges the Veteran's statements indicating that his right ankle gave him problems after service. However, there is no medical evidence indicating that the Veteran's current right ankle disability is related to his in service injury. Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of his right ankle disability is a medical question not subject to lay expertise. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). As such, the Board places no weight on the Veteran's statements to this effect. The Board notes that the Veteran is competent to report his observation of his right ankle such as pain and instability and this has been considered in adjudicating this appeal. In light of the foregoing, the Board finds that service connection is not warranted for the Veteran's right ankle disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for a right ankle disability must be denied. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53. (CONTINUED ON NEXT PAGE) ORDER Service connection for a right ankle disability is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs