Citation Nr: 1815152 Decision Date: 03/12/18 Archive Date: 03/19/18 DOCKET NO. 10-33 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected patellofemoral pain syndrome of the right knee and/or chronic back strain. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1987 to August 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2009 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In September 2014, June 2015, November 2016, and July 2017, the Board remanded the appeal for additional development and it now returns for further appellate consideration. FINDING OF FACT A left ankle disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service and such disorder is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a left ankle disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the instant case, the Veteran's left ankle disorder, diagnosed as strain, is not considered a chronic disease pursuant to VA regulations and, as such, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has a current left ankle disorder that is directly related to his military service or, alternatively, secondary to his service-connected right knee and/or back disabilities. The Veteran's service treatment records (STRs) reveal that, in May 1988, he injured his left ankle while playing softball and a left ankle sprain was noted. However, a June 1988 STR noted an assessment of a resolved ankle sprain. Nonetheless, to establish service connection, there must be probative evidence linking the Veteran's currently diagnosed left ankle disorder to his military service, or his service-connected right knee and/or back disabilities. However, upon review of the evidence, the Board finds that service connection for such disorder is not warranted. In this regard, the Veteran was afforded a VA examination in November 2009. At such time, the examiner diagnosed the Veteran with a left ankle sprain, acute, recurrent, and opined that such disorder was less likely as not caused by or a result of the left ankle sprain shown in-service. In support thereof, the examiner noted that the Veteran had an acute strain in service, which resolved, and then had another acute strain. The examiner explained that such was not a chronic condition, but acute, recurrent injuries. The Board notes that, in his August 2010 VA Form 9 (substantive appeal), the Veteran stated that he disagreed with the November 2009 VA examiner, who noted that the Veteran reported his left ankle was not related to his right knee disability. In this regard, the Veteran explained that he meant that he was unsure if the left ankle pain was secondary to his right knee injury or a residual of his in-service ankle injury. Furthermore, the Veteran cited to an article that noted that "compensatory motion arising from injury or muscular imbalance not only makes activities more difficult, but possibly will result in other injuries." Specifically, the Veteran stated that he felt his left ankle pain was a result of compensatory movement and should therefore be service-connected as secondary to his right knee disability. To the extent that the Veteran intended the article of offer a nexus between his service-connected right knee disability and his claimed left ankle disorder, the Board finds that such article is not relevant to the matter for consideration as it does not suggest a generic relationship between the Veteran's right knee disability and his left ankle disorder with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. See Wallin v. West, 11 Vet. App. 509, 514 (1998); Sacks v. West, 11 Vet. App. 314, 317 (1998). As the November 2009 examiner only provided an opinion regarding direct service connection, and the Veteran had raised the contention that his left ankle may be secondary to his right ankle disability in the aforementioned document and/or his back disability at the April 2015 Board hearing, an addendum opinion was requested in the June 2015 remand to determine whether the Veteran's left ankle disorder was secondary to his service-connected right knee and/or back disabilities. Accordingly, the Veteran was afforded another VA examination in September 2015 and, at such time, the examiner found that there were no objective findings to support a diagnosis of a left ankle disorder. Consequently, he opined that such disorder was not caused by or a result of service or service-connected conditions, and was not permanently aggravated by service-connected conditions. In support thereof, the examiner noted that the STRs showed an acute left lateral ankle sprain was treated and resolved without sequela in May 1988 to June 1988. However, since the November 2009 examiner found that the Veteran had a left ankle disorder, diagnosed as left ankle sprain, acute, recurrent, the Board remanded the claim in November 2016 to obtain another addendum opinion to determine whether such diagnosis was accurate or had resolved and, if present at any time during the pendency of the Veteran's claim, whether such was secondary to his service-connected right knee and/or back disabilities. Accordingly, an addendum opinion was provided in December 2016. At such time, the examiner concluded that the Veteran should retain the diagnosis of left ankle sprain, acute, recurrent, but that such disorder was less likely as not caused by or aggravated by the Veteran's service-connected back and/or right knee disabilities. In support thereof, the examiner stated that, during the pendency of the claim, available records suggested that the Veteran's left ankle condition had been stably mild or quiescent and, per the Veteran's own testimony, originated from injuries unrelated to the back or right knee conditions. However, the Board found that although the examiner opined as to the origin of the left ankle disorder, thereby addressing the causation question, the examiner did not explicitly address the aggravation question. Thus, in July 2017, the Board remanded the claim to obtain another addendum opinion addressing aggravation and the same examiner provided such opinion in August 2017. At such time, the examiner opined that the Veteran's left ankle disorder was less likely as not permanently aggravated by his service-connected right knee and/or back disabilities. In support thereof, the examiner explained that the September 2015 VA examination noted an essentially normal left ankle examination and that VA treatment records made no mention of a chronic or worsening left ankle condition. The examiner further noted that there was simply no documentation to suggest a prior left ankle condition was aggravated by a back or knee disorder. The Board notes that, in the February 2018 informal hearing presentation (IHP), the Veteran's representative argued that the absence of documentation of the Veteran's complaints about his left ankle condition did not necessarily mean that he did not have the symptoms, and that most people took over the counter medications for pain, or simply lived with the pain and discomfort. The representative also noted that, although the Veteran's left ankle pain may not be consistent, it was recurrent. However, the August 2017 examiner did not solely rely on the absence of documentation of the Veteran's left ankle complaints, but also noted that the September 2015 VA examination revealed an essentially normal left ankle examination. Furthermore, in his December 2016 opinion, such examiner also noted that the evidence of record indicated that the Veteran's left ankle condition had been stably mild or quiescent. Therefore, the Board accords great probative weight to the November 2009 opinion regarding whether the Veteran had a left ankle disorder directly related to his military service, and the December 2016 and August 2017 opinions regarding whether the Veteran had a left ankle disorder secondary to his service-connected right knee and/or back disabilities, as they are predicated on a thorough review of the record. Such opinions clearly reflect consideration of the Veteran's lay statements and medical records, to include his STRs, and provide a complete rationale supported by the evidence of record. Furthermore, the opinions offer clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the Board accords great probative weight to the November 2009, December 2016, and August 2017 opinions. Notably, there is no contrary medical opinion. The Board acknowledges that the Veteran believes that he has a left ankle disorder that is directly related to his military service and/or is secondary to his service-connected right knee and/or back disabilities. However, while lay persons are competent to provide opinions on some medical issues, in this case, the cause of the Veteran's left ankle disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons are not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Specifically, such matter involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Thus, the Board finds the Veteran's lay assertions with regard to the nexus element are afforded no probative weight. Consequently, the opinions of the VA examiners are significantly more probative than his lay assertions. Therefore, the Board finds that a left ankle disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and was not caused or aggravated by the Veteran's service-connected right knee and/or back disabilities. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for a left ankle disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a left ankle disorder is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs