Citation Nr: 18150300 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 13-21 884A DATE: November 14, 2018 ORDER The claim of entitlement to service connection for left ankle disability is denied. FINDING OF FACT Although the Veteran’s service records document various left ankle complaints and reported injury, no chronic left ankle disability was shown in service or for many years thereafter; and the only competent, probative evidence to address whether there exists a medical relationship between current left ankle arthritis and the Veteran’s service weighs against the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for left ankle disability are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1985 to April 1988. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2011 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO), inter alia, reopened and denied the Veteran’s claim for service connection for a left ankle disability. The Veteran filed a notice of disagreement (NOD) in October 2011. A statement of the case (SOC) was issued in June 2013 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in October 2013. In September 2014, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In May 2015 and September 2017, the Board remanded the claim for further development. After accomplishing further action on each occasion, the agency of original jurisdiction (AOJ) continued to deny the claim and returned this matter to the Board. The Board is now satisfied that all notification and development actions needed to fairly resolve the claim, to include pursuant to the May 2015 and September 2017 remands, have been accomplished. A pre-rating letter providing notice of what is needed to substantiate a claim for service connection was sent to the Veteran. Furthermore, prior to the Veteran’s Board hearing and pertinent to this claim, as explained below, the record included service treatment records (STRs), private medical treatment records, a record of the VA examination from January 2010, and treatment records from the Salisbury VA Medical Center (VAMC). Pursuant to the development requested in the May 2015 and September 2017 remands, additional private treatment records were associated with the claims file as well as reports of VA examinations in April 2016 and May 2018. There is no identified evidence for which the Veteran has provided appropriate authorization to obtain, or other existing, relevant evidence outstanding, and neither the Veteran nor his representative has alleged any error or omission in the assistance provided. Hence, the Veteran is not prejudiced by the Board proceeding to a decision on the claim on appeal, at this juncture. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) an etiological relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases, such as arthritis, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (1-year for arthritis), even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit has clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection based on continuity of symptomatology (in lieu of a medical nexus opinion) apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-6 (1990). Considering the pertinent evidence of record in light of the governing legal authority, the Board finds that service connection for a left ankle disability is not warranted. The Veteran contends that he has a current left ankle disability related to service. Specifically, the Veteran alleges that he injured his left ankle in-service and that he has continued to suffer intermittent pain following that injury. The Veteran’s STRs show that the Veteran twisted his left ankle in September 1986 while playing basketball. He had an x-ray, and was diagnosed with a left ankle sprain. The Veteran was treated with a cast and crutches. In February 1987, the Veteran’s left ankle problem was assessed as tendonitis. The Veteran also sought treatment in March 1987 for his left ankle pain, including an x-ray examination. The report of the Veteran’s separation examination in February 1988 documents all normal examination results and, on the accompanying report of medical history completed by the Veteran, he marked “no” for all symptoms/complaints. Post service, the claims file includes private treatment records dating from December 2005 from multiple providers and Salisbury VAMC treatment records dating back to February 2009. The first record of a left ankle complaint after service was in February 2009 when the Veteran sought treatment at the VAMC for pain in his neck, back and ankle. The treatment record notes that the Veteran complained of pain in those three areas occurring on and off for two years. The Veteran also reported that his private physician had diagnosed him with gout two years prior that affected his big toes, ankles and feet, as well as that he “broke” his left ankle in service and that it never healed. In December 2010, the Veteran’s VA treatment records show a diagnosis of acute gouty arthritis of the left ankle. The Veteran’s private treatment records associated with the claims file first show complaints related to the Veteran’s left ankle in October 2011. In September 2013, the Veteran’s private physician provided a letter stating that the Veteran has suffered from recurrent arthritic complaints and that he diagnosed osteoarthritis, joint swelling and pain during the Veteran’s examination in July 2013. The physician also noted that that “[t]he patient’s clinical history of ankle pain dates back to the time of his active military service.” The Veteran was afforded a VA examination in January 2010 and then again in April 2016 and May 2018, pursuant to Board remands. The January 2010 examiner reported a diagnosis of left ankle sprain without residuals and provided a nexus opinion that weighed against service connection with the rationale that the Veteran had no chronic left ankle condition that has been treated since his in-service ankle sprains. Pursuant to a May 2015 Board remand, the Veteran underwent examination again in April 2016. That examiner reported that the Veteran’s diagnosis was left ankle degenerative changes, and cyst lateral talus, diagnosed in 2013, and opined that the Veteran’s claimed condition was less likely as not related to service. The April 2016 examiner’s rationale was that the Veteran’s x-ray results were consistent with changes associated with gout, which the Veteran had a long history of, and with the aging process. The examiner also noted that the Veteran reported musculoskeletal injuries resulting from a motor vehicle accident in 2002 and concluded that the changes noted in the Veteran’s x-ray results did not indicate onset in 1986/1987. Pursuant to the September 2017 Board remand, the Veteran again underwent examination in May 2018. The physician diagnosed osteoarthritis of the left ankle and opined that the Veteran’s claimed condition was less likely than not related to service. The examiner described the Veteran’s history of left ankle pain, noting that the Veteran had a Grade I to II ankle sprain in late 1986 which, due to continued discomfort, was later diagnosed as tendonitis. The examiner noted that at this time, two x-rays were taken with normal results and that the Veteran did not report any ankle pain at his separation examination. The examiner explained that, “[u]sually Grade I-II ankle sprains are self-limiting and resolve with proper treatment with no chronic residuals.” The examiner described the Veteran’s history of treatment after service and addressed the letter submitted by the Veteran’s private physician by stating, “there are no records to support this claim.” The examiner concluded by stating, “[i]t seems at this time his left ankle pain is due to gout and not due to the sprain from over 20 years prior.” Turning to the required elements to establish service connection, the Board first finds that competent evidence establishes that the Veteran has arthritis of his left ankle. Hence, the current disability requirement for service connection is met. Also, the Veteran’s STRS document various left ankle complaints and reported injury; this evidence meets the in-service injury or disease requirement. The remaining question, then, is whether current left ankle arthritis was incurred in service, may be presumed to have been incurred in service, or is otherwise medically related to in-service injury or disease. However, as noted above, no chronic left ankle disability was shown in service, or for many years thereafter. While STRs show ankle complaints in 1986 and 1987, the first documented evidence of left ankle complaints post-service was in 2009, and no chronic left ankle disability was diagnosed until more than 20 years after service. Absent competent evidence indicating that the Veteran had left ankle arthritis within one year of his separation from service, service connection may not be awarded on a presumptive basis. The Board also points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor for consideration in determining whether the evidence supports in-service incurrence of a disability. See Maxson v Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Significantly, moreover, the only competent, probative medical opinions to address the medical relationship, if any, between the Veteran’s current left ankle disabilities and the Veteran’s service, to include ankle injuries in 1986 and 1987, weigh against the claim. The VA medical professionals who examined the Veteran and provided opinions in January 2010, April 2016 and May 2018 explicitly rendered conclusions that weigh against a finding of service connection for a current left ankle disability. The Board notes that per the May 2015 and September 2017 remands, the Board found deficiencies with the January 2010 and April 2016 VA examiner’s opinions. However, the May 2018 VA examiner’s opinion was clearly based on examination of the Veteran, full consideration of the Veteran’s documented medical history and assertions, and supported by clearly-stated rationale. As such, the Board accepts this opinion—which is consistent with January 2010 and April 2016 VA examiners; opinions—as probative of the medical nexus question. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Significantly, there is no contrary medical evidence or opinion of record—i.e., one that, in fact, establishes a medical nexus between the Veteran’s current left ankle disability and service. During the Board hearing, the Veteran’s attorney described a letter written by the Veteran’s private physician in September 2013 as providing a positive nexus opinion. The Board points out, however, that that physician noted only that the Veteran has a “clinical history of ankle pain dat[ing] back to the time of his active military service”. Rather than an opinion, such appears to be a mere reiteration of the Veteran’s own reported history, as the physician did not attribute the Veteran’s history of ankle pain to a current disability Notably, evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute “competent medical evidence”, and a bare transcription of lay history is not transformed into “competent medical evidence” merely because the transcriber happens to be a medical professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Finally, as for any direct assertions by the Veteran that there exists a medical relationship between current left ankle disabilities and service, the Board finds that such assertions do not provide persuasive evidence in support of the claim. Although lay persons are competent to provide opinions on some limited medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the etiology of the left ankle disability at issue is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377, n. 4 (providing that lay persons are not competent to diagnose cancer). As the Veteran is not shown to be other than a layperson without appropriate training and expertise, he is not competent to render a probative (i.e., persuasive) opinion on the complex medical matter upon which this claim turns. Id. Thus, in connection with this claim, lay assertions as to the etiology of left ankle disability have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for a left ankle disability must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacqulyn Lane, Associate Counsel