Citation Nr: 20002906 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 14-22 688 DATE: January 14, 2020 ORDER The claim of entitlement to service connection for residuals of a right ankle fracture with arthritis and edema of the right foot is denied. FINDING OF FACT The preponderance of the evidence is against finding that residuals of a right ankle fracture with arthritis and edema of the right foot began during active service or are otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for residuals of a right ankle fracture with arthritis and edema of the right foot have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the United States Army from June 1979 to June 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran was scheduled to appear at the Winston-Salem RO to have a videoconference hearing in June 2017 before a Veterans Law Judge. The Veteran failed to appear for this scheduled hearing and has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2018). 1. The claim of entitlement to service connection for residuals of a right ankle fracture with arthritis and edema of the right foot. The Veteran asserts entitlement to service connection for residuals of a right ankle fracture, including arthritis and edema, which he contends are related to an injury he incurred during his active military service. Specifically, the Veteran’s January 2012 Application for Compensation and/or Pension (Claim), lists the ankle fracture as occurring in 1981, and lists the onset of the arthritis and other residuals as beginning in 2011. However, according to the Veteran’s Form 9 dated June 2014, the Veteran also contends that during his service he was kept in the field for 13 days despite being in a cast and on crutches due to a broken leg. He asserts that this caused his foot to become deformed and his ankle to heal incorrectly, which has caused him problems ever since. Service Connection Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is to consider all information and lay and medical evidence of record in a case and make appropriate determinations as to competence, credibility, and weight. 38 U.S.C. § 5107; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); 38 C.F.R. § 3.303. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent lay evidence also means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. When the preponderance of the evidence weighs against the claims of the Veteran, the claim will be denied on its merits, and when the preponderance of the evidence weighs for the claims of the Veteran the claim will be granted on its merits. In those cases, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 53. Additionally, the Board notes that in this case, the Veteran’s service treatment records (STRs) have been determined to be unavailable for review. See the Formal Finding of Unavailability dated September 2012. In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Prior Remand In February 2018, the Board remanded the Veteran’s claim for further evidentiary development. Specifically, the Board directed the RO to obtain additional post-service VA treatment records created prior to March 2011, which had not previously been associated with the claims file. Further, the Board directed the RO to schedule the Veteran for a VA examination to determine the nature and etiology of any current right ankle and right foot disabilities, and then to readjudicate the claim. Following the Board’s remand, the RO obtained and associated with the claims file VA treatment records as directed by the Board. See VA treatment records dated October 2004 to February 2011 from Durham VA Medical Center. The Board thus finds that there has been substantial compliance with this remand directive. Further, the RO scheduled the Veteran for a VA examination regarding his claim. According to a scheduling record contained in the claims file, that examination appointment was confirmed by phone on May 21, 2018. According to a Report of General Information dated May 25, 2018, the Veteran contacted the RO stating that he needed the VA to arrange transportation for him to attend the examination scheduled for May 28, 2018. VA examination reports submitted in June 2018 indicate that the Veteran did not attend his scheduled examination. In September 2019, the RO sent a letter to the Veteran informing him that it was not able to arrange transportation for him to attend a VA examination. The letter asked the Veteran to respond and to indicate whether he preferred to reschedule his examination or if he preferred to proceed with his appeal without an examination. Along with the letter, the RO provided a form for the Veteran to submit his response and requested that he respond within 30 days. The evidence of record contains no response to this letter and no additional communication from the Veteran or his representative after the letter was mailed. The record reflects that the RO then, having received no response, readjudicated the Veteran’s claim and issued a supplemental Statement of the Case. The Board thus finds that the RO substantially complied with the remand directives requiring it to schedule the Veteran for a VA examination and to readjudicate the Veteran’s claim. Analysis As for the remaining substance of the Veteran’s service connection claim, the record reflects that the Veteran does have currently diagnosed foot conditions, and thus meets the first element of service connection. VA treatment records dated April 2012 confirm diagnoses of metatarsalgia, pes planus, bunions, and mild degenerative joint disease of the first metatarsophalangeal joint of the right foot. Next, regarding an in-service event or injury, post-service VA treatment records document the Veteran’s lay report of right ankle pain due to a “very old fracture” during his “service days.” See VA treatment records dated April 2012. The Veteran reported that his right ankle was put in a cast for six weeks during his military service. Id. However, as noted above, the Veteran has also contended that he fractured his right leg and was kept “in the field” for thirteen days, which led to incorrect healing of his ankle. Based on the Veteran’s lay statements and contentions alone, it is not completely clear whether the Veteran experienced one ankle injury due to a single ankle fracture in 1981 or whether he believes his ankle was injured (either separately or additionally) due his incurring a broken leg at another date. In this case, given the unavailability of the Veteran’s service treatment records, and given the Veteran’s generally consistent statements to medical providers that he fractured his ankle during military service, the Board resolves remaining reasonable doubt in his favor and finds that the second element of service connection has been met. As for the third element of service connection, however, the Board finds that the evidence of record does not adequately link the veteran’s claimed condition with his military service. The Veteran’s post-service treatment records fail to show any complaint or documentation of a compensable injury within one year of the Veteran’s discharge from service. Further, the credible medical evidence and lay reports of record show that the Veteran did not experience continuous symptoms of ankle pain since separation. Instead, the Veteran’s own lay reports place the earliest onset of foot pain in 2001. See VA treatment note dated January 2011. The Board notes that the passage of a lengthy period of time during which the Veteran did not complain of the disorder at issue is something that the Board must ultimately consider when determining whether or not to grant a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the earliest actual post-service record of treatment regarding the Veteran’s right ankle treatment occurred in October 2004 – over two decades after his separation from service. Lastly, the Veteran’s failure to respond to the RO’s medical examination scheduling request weighs heavily against his claim. Although the Veteran failed to attend his VA examination as originally confirmed and scheduled, he did provide notice and good cause for missing the examination citing a lack of transportation. However, when subsequently contacted by the RO about rescheduling the examination or proceeding with the claim without a new examination, the Veteran did not respond. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence – the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). In this case, given the lack of response from the Veteran about rescheduling the VA examination, the Board is left with the current medical evidence of record upon which to decide the claim, which fails to link the Veteran’s current ankle condition to his active military service. Unfortunately, the Veteran’s lay statements alone cannot establish a nexus between his alleged in-service injury and his current conditions. Lay testimony is competent to establish the presence of observable symptomatology where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21. Vet. App. 303 (2007). Here, nothing in the record indicates that the Veteran has specialized education, training, or experience to qualify him to provide a medical opinion about whether his arthritis and edema is related to an in-service ankle fracture. 38 C.F.R. § 3.159. Because the preponderance of the evidence is against the claim of service connection for residuals of a right ankle fracture with arthritis and edema of the right foot, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1Vet. App. at 55-57; 38 C.F.R. § 3.102. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hart, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.