Citation Nr: 18150218 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 12-31 639 DATE: November 14, 2018 ORDER Service connection for a right ankle disability is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a diagnosis of a right ankle disability. CONCLUSION OF LAW The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the U.S. Army from January 1968 to December 1969. This instant case comes before the Board of Veterans' Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated January 2010. In the rating decision, the AOJ, in pertinent part, denied service connection for a right ankle disability. The Veteran perfected his appeal, and, in August 2015, the Board remanded this case for an examination of the Veteran’s right ankle. In February 2017, after the VA examination, the AOJ issued a supplemental statement of the case indicating that the claim for right ankle disability remained denied. In May 2018, the Veteran elected to return his case to the Board for further appellate consideration. Service Connection for a Right Ankle Disability Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In assessing whether a current disability exists, the Board must consider reports of the Veteran’s pain, even if there is no diagnosed condition. “Disability,” as used in 38 U.S.C. 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability.” Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, “[p]ain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.” Id. However, the pain must functionally impair the veteran to constitute a disability. Saunders, 886 F.3d at 1368. While pain “can cause functional impairment,” its presence does not always “reach[ ] the level of a functional impairment of earning capacity” necessary to “establish the presence of a disability.” Saunders, 886 F.3d at 1367-68. 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). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). 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). After determining the competency and credibility of evidence, the Board must then weigh its probative value. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran contends that he has a current disability of his right ankle that was incurred in service when he jumped off a vehicle in Vietnam. He asserts that he experienced stiffness and swelling of the ankle immediately after the incident, but he was not evaluated at a treatment facility; he was seen by a medic in the field and a wrap was applied to the right ankle. The Veteran also contends that he has intermittent pain in his right ankle. As outlined above, the pertinent legal criteria require that the evidence establish a current disability. This criterion is not met in this case. The Veteran does not have a current disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Therefore, the Board finds that service connection for a right ankle disability is not warranted. At his medical entrance examination in January 1968, the only abnormality the physician noted was mild “genu valgus,” which affected the knees. However, nothing was noted upon the Veteran’s entrance into service regarding his right ankle. The service treatment records during his time of service are silent for any right ankle disabilities. While the Veteran submitted a photograph of his ankle wrapped or taped during service, the photograph is not relevant to the issue of whether the Veteran has a current disability, or has had a disability at any point during the pendency of his appeal. Upon separation from service, the physician noted no abnormalities for the Veteran. Post-service, the Veteran explained that a private provider may have treated him for right ankle pain. The AOJ obtained the provider’s records, which the Board has reviewed, and there is no mention of treatment for an ankle disability. The Veteran has also received medical treatment at various outpatient VA clinics. Those medical records do not mention any treatment for an ankle disability. In December 2015, the Veteran underwent a VA examination in order to determine whether he had a right ankle disability that was related to his service. The examiner concluded that the Veteran does not have a current diagnosis associated with his right ankle. The examiner considered all the Veteran’s lay statements regarding his ankle injury during service, and reviewed the service treatment records and outpatient records. The examiner similarly found no records regarding treatment for a right ankle disability, either during service or after. The day of the examination, the Veteran reported no ankle pain. The Veteran’s gait was normal, and he had full active, passive, and repetitive range of motion that was pain-free. There was no muscle weakness noted in the right ankle, and there was no evidence of joint instability. There was no functional loss, limitation, or impairment in the right ankle. The examiner found that pain, weakness, fatigability, and incoordination do not significantly limit functional ability of the right ankle with repeated use over a period of time. Overall, the examination of the Veteran’s right ankle was normal and unremarkable. The VA examiner thus opined that the Veteran does not have a current right ankle disability that was caused by the event during service. In addition, in April 2018, the Veteran’s right ankle was examined in conjunction with a VA examination for left ankle weakness and left foot drop. The examination yielded no diagnosed disabilities for the right ankle. The VA examiner noted normal right ankle strength, normal right ankle deep tendon reflexes, normal right ankle sensation, and no lower right extremity pain, paresthesias, dysesthesias, or numbness. The examiner also found no functional loss for the Veteran’s right lower extremity. Finally, the examiner noted that the Veteran has bilateral hallux valgus deformities, which were acquired after separation from active duty service, but explained that the Veteran described no pain or discomfort associated with the foot deformities. While the record shows that the Veteran thinks he was diagnosed with arthritis in his ankle, none of the records reflect this diagnosis. Moreover, the Veteran is not competent to diagnose arthritis. The issue is medically complex, as it requires the interpretation of symptoms and medical imaging by a trained medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given that the medical professionals have not provided any diagnosis in the available records, the Board must rely on this evidence before it in concluding that the criterion of a current disability is not met. The Board has considered whether the subjective pain reported in this case causes functional impairment of the right ankle generally, or functional impairment of earning capacity specifically, to constitute a current disability for the purpose of this service connection claim. Saunders, 886 F.3d 1356. The Veteran has reported pain in his ankle, which he is competent to report. However, the Board concludes that the Veteran’s pain does not cause any functional impairment, either of the ankle generally or specifically to the Veteran’s earning capacity. Both VA examiners noted that the Veteran was not in pain and concluded that the right ankle functions normally. Moreover, the private physician’s records all note that the Veteran’s musculoskeletal system is normal. The VA outpatient records mention that the Veteran ambulates with a steady gait, exercises five days a week on the elliptical and with weights, walks frequently, and has no mobility impairment. Finally, the Veteran himself did not report any functional loss or impairment due to right ankle pain. He did not allege that his right ankle pain impairs his earning capacity, and reported that he worked as a sales representative and delivery person for approximately eight to ten years before retiring. Thus, given that both VA examinations of the Veteran’s right ankle were normal, and that any pain the Veteran experiences does not constitute a functional impairment, the Board must conclude that the Veteran does not have a current right ankle disability. Without a current disability, service connection may not be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Consequently, the claim for a right ankle disability must be denied. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). 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. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Smith, Associate Counsel