Citation Nr: 18149750 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 13-07 433 DATE: November 13, 2018 ORDER Entitlement to service connection for a left foot/ankle disability is denied. FINDING OF FACT The Veteran’s left foot/ankle disability was not incurred during or caused by service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left foot/ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1984 to April 1986 and from September 1990 to July 1991. In the March 2013 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge sitting at the RO. However, the Veteran, in July 2015, chose to cancel his hearing request. The Veteran’s hearing request is therefore considered to have been withdrawn. See 38 C.F.R. § 20.704(d). In April 2016, the Board of Veterans’ Appeals (Board) remanded the matter for further development. The Board denied the matter on appeal in May 2017. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2018 Joint Motion for Partial Remand (JMR), the Court vacated the March 2017 decision and remanded the current issue to the Board. Entitlement to service connection for a left foot/ankle disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, service connection may 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). In order to establish service connection for a claimed disability on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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, to include 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; 38 C.F.R. §§ 3.307(a), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran asserts that his current left foot disability is related to an incident in service when a data cable weighing 200 pounds fell on his left foot, which caused him to limp ever since. See e.g., December 2011 notice of disagreement. The Veteran has a current left foot/ankle disability diagnosed as osteochondral lesion in the medial dome of the talus and osteochondroma of the left ankle, without degenerative or traumatic arthritis. See e.g., June 2011 private treatment records; July 2016 VA examination. Service treatment records (STRs) from March 1985 show that the Veteran sprained his left big toe and was put on a profile, which limited running, jumping, and marching. He sprained his left foot after stepping in a hole while running. There are no further references to any complaints, treatment, or diagnoses pertinent to the left foot. November 1985 STRs noted the Veteran dropped a cable on his right foot, causing pain in his right foot and swelling of his right ankle. December 1985 STRs recorded the Veteran’s cast being removed at a follow up for a right ankle sprain. Left foot complaints are not further shown in the record until June 2011 private treatment records. A magnetic resonance imaging (MRI) showed evidence of osteochondral lesion in the medial dome of the talus of the left foot. The Veteran was afforded a VA examination in July 2016. The examiner indicated that the entire file was reviewed (including the records furnished after the Board’s remand) and diagnosed the Veteran with osteochondroma of the left ankle without degenerative or traumatic arthritis. The examiner provided a negative nexus opinion. The examiner acknowledged the Veteran’s contentions of dropping a cable on his left foot in November 1985 and the noted limp during active service. The examiner did not see the limp on examination, and found that the Veteran’s left foot injury in service was of the type that an individual would recover from, as the Veteran was negative for a left foot fracture in service. The examiner also noted some of the Veteran’s foot/ankle problems could be related to diabetes mellitus. The examiner found an individual would normally recover from the March 1985 injury; found no chronic or long-standing condition in the STRs; and, therefore, found that the current osteochondral lesion of the left foot was not related to the Veteran’s active service. The Veteran’s STRs document a right foot injury caused by the Veteran dropping the cable on his right foot in November 1985. The Veteran currently claims that he dropped the cable on his left foot. In weighing both the objective medical evidence and the competent lay evidence, the Board instead assigns more probative value to the contemporaneous medical evidence and clinical findings in the record, which noted the Veteran’s specific reported symptoms at the time of the injury. Here, the Veteran’s in-service complaints were made many years prior to the filing of the instant claim for service connection, and are highly probative as they are contemporaneous with the time in question and made for purposes of obtaining medical care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). The Board notes that while the Veteran is competent to describe certain incidents and symptoms, he does not have the medical training or credentials to assess the nexus between these incidents and the current diagnosis. The Board finds the Veteran competent and credible to describe his symptoms of foot pain since service; however, he is not competent to provide a medical etiology opinion as to his current left foot/ankle disability. The Board also notes that the record is negative for arthritis of the Veteran’s left foot and ankle, thus rendering 38 C.F.R. §§ 3.307 and 3.309(a) inapplicable. Therefore, while the Board finds that the current left foot/ankle disability is undisputed, the competent medical evidence does not support a nexus between the in-service incident and the current left foot/ankle disability. Based on the foregoing, the Board concludes that the preponderance of the evidence is against a finding that the Veteran’s currently diagnosed left foot/ankle disability had its onset during active service or is otherwise related to service. The Veteran’s general lay statements as to etiology are inconsistent with, and outweighed by, the objective medical records, and the July 2016 VA examiner found no nexus between current disability and active service based on a review of the Veteran’s claim file and consideration for his lay contentions. This opinion, based upon a claims file review and supported by a rationale, is highly probative relative to the Veteran’s own lay opinion. 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 Veteran’s claim, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel