Citation Nr: 18158661 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-58 303 DATE: December 17, 2018 ORDER Entitlement to service connection for a left ankle disability is denied. FINDING OF FACT The competent evidence of record does not reflect that the Veteran has a left ankle disability that was manifested in, caused by, or is otherwise etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a left ankle condition has not been met. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1976 through August 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) wherein service connection for the left ankle condition was denied. After receipt of the August 2013 rating decision, in August 2013 and March 2014, the Veteran submitted additional evidence and argument regarding his claim. The Veteran styled his submission as a request for reconsideration. The Board is under a statutory obligation to conduct a de novo review of any new and material evidence. Butler v. Brown, 9 Vet. App. 167, 171. However, in this case, the additional evidence submitted is interpreted as a Notice of Disagreement by the Board, not as new and material evidence. The RO adjudicated this claim under a new and material evidence framework but this action is not binding on the Board. It was the Veteran’s intention to move the claim forward, timely opposing the denial issued via the August 2013 rating decision. Therefore, his claim does not require new and material evidence before being considered on a de novo basis. Service connection for left ankle condition The Veteran contends his left ankle condition should be service connected due to his active service. He contends his left ankle condition resulted from serving in an infantry capacity wherein there was stress to his ankles. The Veteran reports that he trained very hard while serving, he recounts consistently scoring a perfect 300 in his Military Physical Fitness tests. His wife provided a lay statement wherein she agrees and supports his contention that his ankle condition dates back to his time in the service. He contends he injured his ankle on a few different occasions by twisting and spraining his ankle, resulting in swelling and pain. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. §3.303(a). Establishing service connection generally requires competent, credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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 documented history of chronic Achilles pain, Achilles tendonitis, a small tear in a tendon in the left ankle, and old ankle sprains, the preponderance of the evidence is against finding that the left ankle condition began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F. 3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). First, the Board acknowledges the Veteran has a documented history as suffering from a left ankle disability, as detailed above. The current disability criterion is met. There is, however, no evidence that the Veteran sought treatment for or was diagnosed as suffering from a left ankle condition during his active service. A review of the Veteran’s service records from his active service shows no evidence of any treatment or complaints regarding ankle pain or injury. Notably, the Veteran’s separation exam was also normal, with no mention of an ankle condition. Considering that the Veteran was seen for numerous other issues over the course of his active service (which were documented in his service treatment records and serves as the basis for service connection for other disabilities) and that specific defects were noted on his July 1979 separation examination, if the Veteran were to have suffered from a specific left ankle disability during his active service, then it is likely that it would have been recorded herein. The Veteran contends that he injured his ankle during his active service and that he was seen in sick call for this injury. The Board does not find that contention to be credible. Again, the Veteran’s service treatment records are silent for such treatment despite having records of other complaints and injuries. The Veteran has also not been consistent in his description of his service, saying in a January 2013 letter that he never went to sick call, but then later saying that he did for his left ankle injury. Considering both the lack of corroboration in objective service treatment records (which appear to be complete and do contain evidence of other complaints) and the Veteran’s inconsistent statements, the Board finds the Veteran’s statements regarding his in-service injuries not to be credible. To the extent that the Veteran and his wife have contended that the Veteran suffered from left ankle disabilities continuously since his active service, the Board again finds these statements not credible. The first evidence of the Veteran’s complaints of ankle pain shown in post-service medical records comes in 2010, at which time the Veteran complained of a fall during a triathlon. Both VA and private treatment records detail the Veteran’s post-service devotion to exercise, and at no time until roughly when the Veteran filed his claim for service connection for a left ankle disability did the Veteran complain of ankle pain or attribute this pain to his service. Though the Veteran’s wife attributed his pain to his service, in a March 2014 letter, she noted that she had only known him for 10 years. She therefore did not know the Veteran until some 25 years after his separation, so any observations as to the Veteran’s history since service cannot be considered competent or credible. Even if the Board were to find the Veteran’s statements credible, there is no evidence relating his disability to his active service. The only such statements come from the Veteran and his wife, neither are shown to have the requisite medical knowledge or training to provide an etiology opinion for disabilities such as those claimed by the Veteran. The Board has considered statements made by the Veteran that his left ankle condition relates to his active service. Lay witnesses are competent to report symptoms because this requires only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, they are not competent to offer opinions as to the etiology of their disabilities due to the medical complexity of the matters involves. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Although no VA examination was afforded to the Veteran, the Board finds that no such development is warranted based upon the facts of this case. In pertinent part, there is medical evidence that diagnoses the current disability, but as detailed above, the record does not indicate the Veteran’s disability is due to or incurred during service. Only the Veteran’s contentions indicate a relationship with service, which is insufficient to trigger VA’s duty to provide an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In sum, the Veteran’s service treatment records are silent for any complaints or treatment for any left ankle condition. The Veteran’s separation examination is negative for any clinical findings or reports of left ankle condition. Although the Board has considered the Veteran’s testimony that he went to sick-bay on different occasions regarding his ankle pain and that he was not trying to get out of duty, there is no record of these visits in Veteran’s service treatment records. The Veteran’s service treatment records do show he sought treatment for other ailments, including an upper respiratory infection, congestion, poison oak, ingrown toenail, car accident follow-up visit, hearing loss, and a psychiatric admission. Therefore, the lack of service treatment for his ankle is telling. Accordingly, while the Veteran possesses the competence to describe events and facts that occurred during service, the lack of record during service is assigned little probative weight. The Board has also considered whether service connection is warranted on a presumptive basis. However, the evidence does not show Veteran’s left ankle condition was chronic in service or manifested during a compensable degree within one year from service. Thus, presumptive service connection is not warranted. (Continued on next page) Therefore, the Board finds that the most probative evidence of record shows that Veteran’s left ankle condition was not caused by his military service and the evidence does not support a nexus between Veteran’s active service and his claimed left ankle condition. Accordingly, the Board finds that entitlement to service connection for his left ankle condition is not warranted. In reaching this 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, the doctrine is not applicable in the instant appeal. Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Mouzakis, Associate Counsel