Citation Nr: 18152952 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 11-21 495 DATE: November 26, 2018 ORDER Service connection for residuals of a left ankle injury is denied. FINDING OF FACT The weight of the most probative evidence is against a finding that the Veteran’s left Achilles tendonitis was a residual of an in-service left ankle injury. CONCLUSION OF LAW The criteria for service connection for residuals of a left ankle injury are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1977 to May 1977 and from May 1982 to August 1982. He also served in the National Guard until November 2011. He died in January 2017. The appellant is substituted on his behalf in this appeal. 1. Service connection for residuals of a left ankle injury During his lifetime, the Veteran asserted that he had an ankle condition resulting directly from an injury during service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis and experienced an in-service injury, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis began during service or is otherwise related to an in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). First, it is not in dispute that the Veteran injured his left ankle during service in June 2007. According to a July 2008 Statement of Medical Examination, he suffered a sprained left ankle while doing land navigation. He was admitted for treatment two days later, and the injury was considered to have been incurred in the line of duty. Treatment records show the Veteran was not diagnosed with left Achilles tendonitis until February 2008, which was during the time he was serving in the National Guard. The Veteran indicated at a Board hearing in July 2012 (during his lifetime) that he had continuous symptoms after the in-service injury up to present. See Board Hr’g Tr.10-11. He similarly wrote in a July 2011 statement that he continually had pain after the injury. He added that he was not always able to seek treatment because he did not have medical insurance. While the Veteran is competent to report having experienced symptoms in the left ankle, he is not competent to determine that these symptoms were manifestations of left Achilles tendonitis. The issue is medically complex, as it requires knowledge of the interaction between the severity of the in-service injury and joints in the body, plus interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). A VA expert, a Board-Certified physician in Orthopedic Surgery, reviewed his case in July 2018 and reached a negative conclusion. The rationale was there was no evidence of post-traumatic arthritis as mentioned in an internist’s note in 2012. The VA expert found significant that the internist “even states that he is ‘reasonably conjecting,’” which meant, according to the expert, “he has no supporting medical evidence.” The expert also concluded that the “paucity of medical complaints and examinations subsequent to service further supports the conclusion that there was no persistent diagnosable condition of the [ ] Left ankle after service.” The examiner explained that the “subjective complaints unaccompanied by any objective medical findings, along with the significant periods of time without evaluation, imaging or treatment, supports the conclusion that there was no diagnosable Left ankle condition after service.” For this reason, the examiner reiterated, there was no persistent condition related to the injuries or conditions incurred during service.” This expert’s opinion is probative, because it was based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent the VA expert relied on an absence of any treatment after service for the condition, the examiner explained the medical significance of that absence. On this basis, the opinion does not impermissibly rely on an absence of evidence as negative absence. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Thus, the Board finds the VA expert’s opinion to be persuasive and probative as to the nexus element of the claim. Separately, a private (non-VA) medical provider wrote a statement in August 2012 indicating that “[i]t is reasonable to conject that [post-traumatic arthritis] is a residual of his [unreadable] military injury.” This doctor’s opinion has essentially no probative weight as the doctor was speculating. The VA expert explained that this doctor had no supporting evidence to reach this conclusion. As such, the opinion does not support a nexus to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the July 2018 VA expert’s opinion. A VA examination was previously conducted in August 2010. The VA examiner found that there was no objective evidence of a diagnosis in the left ankle. The Board has found that this examiner’s opinion is deficient for three reasons. First, the VA examiner did not conduct any diagnostic testing. The decision to not conduct testing was solely within the VA examiner’s medical judgment. However, it is notable that the VA examiner also gave a similar assessment for the right ankle even though private medical records by that time showed a diagnosis of post-traumatic arthritis in the right ankle. This calls into question the VA examiner’s non-diagnosis as to the left ankle as well. Second, the VA examiner also appears to have been materially influenced by a perception that the Veteran was exaggerating his complaints. Finally, the VA examiner did not have all service treatment records (STRs) available to review. As such, this VA examiner’s opinion is not probative evidence either supporting or weighing against the claim. See id. (Continued on the next page)   In conclusion, the preponderance of the evidence is against the claim. As such, service connection is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bosely, Counsel