Citation Nr: 1808953 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 11-24 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran served on active duty from May 1965 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August 2014, the Board remanded this matter for additional development. In December 2015, the Board again remanded this matter to obtain a supplemental VA examination and opinion as well as updated VA treatment records. As explained below, the Board finds that there has been substantial compliance with the December 2015 remand. Stegall v. v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The preponderance of the competent evidence is against a finding that the Veteran's left ankle osteoarthritis had its onset in, or is otherwise related to, his active service. 2. The preponderance of the competent evidence is against a finding that the Veteran's right ankle osteoarthritis had its onset in, or is otherwise related to, active service. CONCLUSIONS OF LAW 1. A left ankle disability was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). 2. A right ankle disability was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159. Here, VA provided adequate notice in a letter sent to the Veteran in September 2009. VA has also satisfied its duty to assist the Veteran in the development of these claims. VA has obtained all identified and available service and post-service treatment records for the Veteran. A VA examination and opinion was obtained in June 2016. In the January 2018 informal hearing presentation, the Veteran and his representative contended that the VA examiner's opinion from June 2016 was conclusory and not supported by adequate rationale. However, the Board notes that the 2016 VA examination and opinion included a review of the claims folder and a history obtained from the Veteran, a discussion of relevant examination findings, as well as a diagnosis and opinion supported by the record. As more fully explained below, the Board finds that this VA examination/opinion report is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and that neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. No further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). In summary, the Board finds that appellate review may proceed without prejudice to the Veteran with respect to his claims. Bernard v. Brown, 4 Vet. App. 384 (1993). II. Factual Background Service treatment records (STRs) show that in August 1973 the Veteran was seen for right ankle sprain. In October 1974, he complained of left heel and ankle pain. X-rays of his left foot were negative. The diagnosis was a sprained left foot. On a VA examination in November 2009, the Veteran reported that his ankles began bothering him in the 1970s and hurt him at the evaluation. He reported that he had injured his right ankle and that the fracture was treated with casting. X-rays of his right ankle revealed that the previous fracture was well-healed with well-maintained joint spaces and no evidence of malunion, fracture, dislocations, or destructive lesions. X-rays of his left ankle showed no fractures, dislocations, degenerative, or destructive lesions. The impressions included previous right ankle fracture with no residual pain or disability, and a normal left ankle examination. On a September 2014 supplemental VA medical examination report, the examiner noted that the Veteran had bilateral mild posterior ankle pain. In an October 2014 VA supplemental medical opinion, the examiner stated that the Veteran reported posterior ankle pain that was most likely related to age appropriate osteoarthritis. At the VA examination dated in June 2016, the diagnosis was right and left ankle osteoarthritis, as diagnosed in May 2016. The examiner noted that the Veteran's report of having problems with his ankles beginning in the 1970s and that his issues with his ankles have slowly progressed. The examiner opined that the Veteran's current bilateral ankle condition was less likely than not due to service. The examiner explained that the Veteran currently suffered age-appropriate osteoarthritic changes of the ankle, and indicated there was "no medical record documentation to indicate that this condition was exacerbated beyond its natural progression by military service." III. Analysis Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). In order establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain "chronic" diseases, such as arthritis, may also be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet.App. 428 (2011). The Veteran essentially contends that he has a current bilateral ankle disability that had its onset in service. As noted above, STRs show that he was treated for ankle sprain in service. What is missing in this case is competent medical evidence of link between the Veteran's current right and left ankle disabilities in service. In June 2016, a VA examiner opined that the Veteran current bilateral ankle condition (osteoarthritis) was less likely than not due to service, again noting that the Veteran currently suffered age-appropriate osteoarthritic changes of the ankle, but also explaining that there was "no medical record documentation to indicate that this condition was exacerbated beyond its natural progression by military service." As noted above, the Veteran has contends that the examiner's opinion is conclusory and without adequate rationale. However, while the VA examiner's opinion and rationale in 2016 might be awkwardly worded (and suggestive of a pre-existing ankle condition), the gist of the opinion is pertinent and probative as to the issue of whether the Veteran's current right and left ankle disabilities are related to his active service. The examiner essentially explains that the in-service events did not have an impact on the Veteran's current age-appropriate osteoarthritis of the ankles. Moreover, the VA examiner's opinion included a review of the claims folder, citation to specific parts of the record, and rationale to support the opinion. Also, service connection for a bilateral foot disability was granted in a July 2016 rating decision, and this award was based on the 2016 VA examiner's opinion that the Veteran's bilateral pes planus and bilateral plantar fasciitis were related to service, and referenced several STRs, including the October 1974 left foot sprain. The Veteran has not submitted/identified any competent contrary medical evidence. With regard to the Veteran's contentions, the Board notes that lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Thus, he is competent to report that he injured his ankles in service and that he has had ankle pain and symptoms since then and that this is considered credible lay evidence of symptomatology. See Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra. However, these numerous lay statements are not considered competent or probative evidence of whether an ankle disability had an onset in or is related to active. The Veteran is not competent to provide an opinion or evidence as to matters involving medical diagnosis or etiology of an ankle disability. See Kahana v. Shinseki, supra. After reviewing the record, the Board concludes that the competent evidence of records shows that the Veteran's current bilateral ankle disability is not related to service. The Board has carefully considered the statements and contentions of the Veteran, but finds the weight of the competent medical evidence is contrary to those statements and contentions. The preponderance of the evidence is therefore against the claim. Consequently, the benefit-of-the-doubt rule does not apply and the claim for service connection for right and left ankle disabilities must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left ankle disability is denied. Service connection for a right ankle disability is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs