Citation Nr: 18154282 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 13-27 350 DATE: November 29, 2018 ORDER Entitlement to service connection for a right ankle disability is denied. FINDING OF FACT The probative, competent evidence does not demonstrate that the Veteran has a current disability of the right ankle. CONCLUSION OF LAW The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 2001 to July 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Providence, Rhode Island. The claims file was subsequently transferred to the RO in Oakland, California. In December 2016, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. This issue was previously before the Board in August 2017, at which time the Board remanded the matter for additional development. Specifically, the August 2017 Remand instructed the RO to ask the Veteran to submit or authorize VA to obtain medical records from any private medical provider who treated the Veteran for any ankle and/or foot disabilities during the applicable appeal period, and to then schedule him for an appropriate examination to determine the nature and etiology of all ankle and foot disorders. Pursuant to the Board’s Remand, the Veteran was sent correspondence asking him to submit or authorize VA to obtain medical records in January 2018, additional VA treatment records were added to the claims file in February 2018, and the Veteran was provided with appropriate VA examinations in March 2018. Based on the foregoing actions, the Board finds that there has been substantial compliance with its August 2017 Remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges that its August 2017 Remand addressed the issues of entitlement to service connection for bilateral ankle disability, entitlement to service connection for bilateral pes planus, and entitlement to service connection for a plantar disability of the bilateral feet. However, in a September 2018 Rating Decision, the Appeals Resource Center granted entitlement to service connection for bilateral pes planus (also claimed as bilateral plantar fasciitis) as well as a left ankle condition. As this constitutes a full grant of the benefits sought with respect to these issues, they are no longer before the Board, which has recharacterized the remaining issue on appeal as in the above caption. With respect to the claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran now seeks entitlement to service connection for a right ankle disability. The Board reiterates that he has already been service connected for bilateral pes planus (also claimed as bilateral plantar fasciitis) and a left ankle condition. Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1101, 1110 (2017); 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309 (2015). Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). However, the evidence must show that a veteran has the disability for which benefits are being claimed. See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Here, at his December 2016 Board videoconference hearing, the Veteran testified that, as an infantry rifleman in the Marine Corps, he hiked approximately eight hours on patrols per day in standard-issue military combat boots carrying equipment weighing approximately 100 pounds. The Veteran further testified that his feet would get sore on the heels and arches after standing for prolonged periods of time, and that he injured his ankle, at which time he was placed on light duty for a few days, although he experienced weakness in the ankle ever since. A review of the Veteran's service treatment records reveals that his October 2000 Report of Medical History at induction noted moderate, asymptomatic pes planus. In February 2002, the Veteran sought treatment for chronic left knee pain which he had experienced for two months. The Veteran indicated that he injured his knee while at the School of Infantry at Camp Pendleton, California, and that it felt like a sprain. A May 2003 VA treatment record confirmed that the Veteran had an inversion twisting of the ankle, which was diagnosed as an ankle sprain, at which time the Veteran was assigned to light duty for eight days. In July 2005, at the time of his separation from service, a Chronological Record of Medical Care indicated that the Veteran suffered from episodic left knee pain secondary to musculoskeletal wear and tear. Post-service VA treatment records included diagnoses of Achilles bursitis or tendinitis, flat feet, and ankle sprain. The Veteran further testified at his December 2016 Board videoconference hearing that he had been prescribed orthotics by a private physician in Sacramento, California, for his bilateral feet and ankles. The Veteran was provided with a VA examination with respect to these disabilities in January 2013. With respect to the Veteran's ankles, the VA examiner diagnosed him as having a resolved right ankle sprain as well as left ankle Achilles tendonitis. However, the examiner then opined that the Veteran's bilateral ankle condition was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the examiner merely noted that, "Claimant's bilateral ankle condition, currently with no pathology to render diagnosis, is less likely than not related to the in service twisted inversion ankle injury which occurred during active military service." However, the Board emphasizes that the examiner provided a diagnosis (specifically, "left ankle Achilles tendonitis") earlier in the examination report. With respect to the Veteran's pes planus and plantar disability, the January 2013 VA examination report diagnosed him as having bilateral flat feet as well as bilateral plantar fasciitis. However, the VA examiner opined that both the Veteran's bilateral flat feet and plantar fasciitis, which clearly and unmistakably existed prior to service, were clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In support of this conclusion, the examiner explained that, "Claimant entered the military with asymptomatic moderate pes planus bilateral per enlistment physical examination dated 10/25/00 . . . . There are no documented evidence claimant had developed plantar fasciitis while in the service. There are also no documented evidence the bilateral plantar fasciitis were aggravated beyond natural progression due to military occupational specialty as a rifleman between 2001 and 2005 during military service; I am not able to determine aggravation beyond natural progression without resorting to mere speculation; based on available records reviewed, it is my opinion, claimant's bilateral pes planus with plantar fasciitis are less likely as not aggravated beyond natural progression due to military occupation specialty as a rifleman between 2001 and 2005 during military service." Radiology performed at the time of the January 2013 VA examinations showed that the right ankle alignment was normal. Distal tibia, fibula, talus, and calcaneal appeared intact, with ankle mortise view normal and soft tissue unremarkable. However, the Board found the January 2013 VA examination reports and their opinions to be inadequate, and remanded the issue so that an adequate VA opinion could be obtained. Pursuant to the Board’s Remand, the Veteran was provided with another VA examination in March 2018. At that time, although the VA examiner diagnosed the Veteran as having lateral collateral ligament sprain and tendonitis in his left ankle, the examiner concluded that there was no additional diagnosis pertinent to the right ankle because there was no pathology with which to render a diagnosis. Based on a review of the medical evidence, the Board finds that the probative, competent evidence does not demonstrate that the Veteran has a current, chronic, right ankle disability that is separate and distinct from his service-connected bilateral pes planus (also claimed as bilateral plantar fasciitis). See 38 C.F.R. § 4.14 (2017) (pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided). In the absence of proof of a present, additional disability of the right ankle, there can be no valid claim. Brammer, 3 Vet. App. at 225. The Board notes that while the Veteran is competent to report symptoms such as ankle pain, he has not been shown to possess the medical knowledge or expertise required to attribute those symptoms to a specific etiology, a medically complex matter. Without evidence of a current disability for which service connection may be granted, the preponderance of the evidence is against the Veteran's claim. No further discussion of the elements of service connection is necessary. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 57. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel