Citation Nr: 18157109 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 07-20 050 DATE: December 11, 2018 ORDER Service connection for right ankle condition is denied. FINDING OF FACT The Veteran’s right ankle condition did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for right ankle condition have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1965 to June 1966. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Board adjudicated this appeal in a September 2013 decision, which denied service connection for right ankle disorder; reopened his claims of service connection for low back disorder, right knee disorder, and left knee disorder; and remanded his claims of service connection for low back disorder, right knee disorder, and left knee disorder. The Veteran filed a motion for reconsideration of that September 2013 Board decision, which was denied in June 2016. Then the Veteran appealed the September 2013 decision to the U.S. Court of Appeals for Veterans Claims (Court). In May 2017 the Court granted a joint motion for partial remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacated the September 2013 decision’s denial of service connection for right ankle disability, and remanded that issue to the Board for action consistent with the terms of the JMR. In December 2017, the Board remanded this case for further development. 1. Service connection for right ankle condition The Veteran asserts that his current right ankle condition is related to his active duty military service, to include his documented July 1965 right ankle sprain or his reported injuries sustained during an uprising that occurred during his confinement. The Veteran’s military personnel record reflect that he was in confinement from October 18, 1965 to May 31, 1966. While there is no record of an uprising during this time or any treatment for his claimed injuries, the Veteran did receive a verbal reprimand for fighting on January 1, 1966. For the purposes of this decision only, the Board has assumed that any injury sustained was not the result of the Veteran’s willful misconduct. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran’s has right ankle arthritis, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. While there is no medical treatment evidence from the presumptive period, an August 1983 radiologist report of the Florida Department of Corrections notes a history of right foot/ankle injury in 1982 and reinjury in July 1983 and specifically found the Veteran’s right foot and ankle “essentially normal.” The first evidence of record to show a diagnosis of right ankle arthritis was the May 2002 VA examination, decades after his separation from service and decades outside of the applicable presumptive period. While the Veteran is competent to report experiencing symptoms of right ankle pain consistently since service, the Board finds the reports of continuity of symptomatology not credible. These reports of continuity of symptomatology are inconsistent with the Veteran’s reports in contemporaneous treatment records, including those from the Florida Department of Corrections from the 1970s and 1980s, which are silent for ankle complaints until an August 1983 radiologist report that notes a history of right foot/ankle injury in 1982 and reinjury in July 1983. At that time, the Veteran did not report the earlier in-service injuries, which weighs against any subsequent assertions of ongoing pain beginning in service as the Veteran had significant incentive to report an accurate history at the time he sought treatment in 1983 in order to receive proper care. Furthermore, the Board notes that lay statements and the Veteran’s treatment records repeatedly report memory difficulties and state that he is a poor historian. He has repeatedly been noted to be unable to recall his basic personal information. For example, he provided incorrect information at his May 2002 VA examination; indicated that he did not know his birthdate or whether he was married at his July 2003 VA examination; indicated that he did not know his birthdate at his July 2004 VA examination; and indicated that he did not know his birthdate, age, or whether and what type of psychiatric treatment he was receiving. The November 2007 VA examiner noted that he was unable to obtain an accurate sequence of events from the Veteran as the Veteran was a very poor historian. Similarly, he provided an incorrect birthdate during his confinement in the Florida Department of Corrections. These documented profound memory problems render recent reports of ongoing symptoms since service less probative than the contemporaneous medical treatment records. Thus, the Board finds the Veteran’s reports of continuous symptoms since service to be not credible. While the Veteran’s wife does not have any documented memory difficulties, there is no indication that she knew the Veteran during or immediately following his service and so she is not competent to provide lay evidence of his symptoms at that time because she has no first-hand knowledge of them. Service connection for right ankle arthritis may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s right ankle arthritis and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The February 2018 VA examiner opined that the Veteran’s right ankle condition is not at least as likely as not related to an in-service injury, event, or disease, including the documented sprain in July 1965 and/or his reported additional injuries during an uprising while he was in confinement. The rationale was that there was no mention of ankle problems at the time of the Veteran’s separation from service or for several years afterwards, his February 2018 examination was unremarkable, and there was no medical evidence that a sprain could result in degenerative spurring of the calcaneus of his ankle. This examiner reviewed the objective evidence of record, including the Veteran’s complaints, and performed a thorough clinical evaluation. Therefore, this examination is adequate for VA purposes. The Veteran’s private physician, Dr. J.E., has submitted August 2007, April 2011, and October 2013 opinions stating that it is more likely than not that the injuries sustained on active duty are related to the Veteran’s current ankle problems. These opinions fail to provide any rationale in support of their findings and so they are less probative than the February 2018 VA examiner’s opinion. While the Veteran believes his right ankle condition is related to an in-service injury, event, or disease, including his July 1965 sprain and additional injuries received during his confinement, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education and the ability to differentiate the effects of multiple right ankle injuries over the course of more than fifty years. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. (Continued on the next page)   For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claims of service connection for right ankle condition, and this claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Houbeck, Counsel