Citation Nr: 20031268 Decision Date: 05/05/20 Archive Date: 05/05/20 DOCKET NO. 18-04 486 DATE: May 5, 2020 ORDER Entitlement to service connection for a right ankle condition (claimed as no ankle) is denied. FINDING OF FACT During the February 2020 VA examination, the Veteran reported that he does not have a current right ankle condition. CONCLUSION OF LAW The criteria for entitlement to service connection for a right ankle condition (claimed as no ankle) have not been met. 38 C.F.R. §§ 1110, 1131, 5103, 5103a, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty service in the U.S. Navy from December 1976 to April 1978. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) denying, in part, service connection for a right ankle condition. In May 2016, the Veteran filed a timely substantive appeal. In May 2019, the Board remanded the Veteran’s appeal to obtain a VA examination and opinion regarding the nature and etiology of the Veteran’s claimed right ankle disability. On July 29, 2019, VA noted that the scheduled VA examination for the Veteran’s right ankle disability was cancelled at the Veteran’s request. On August 6, 2019, attempts to contact the Veteran to discuss the cancelled VA examination were unsuccessful, but a voicemail was left. On September 13, 2019, the Veteran called VA in response to the August 2019 voicemail. The Veteran requested the VA examination be rescheduled, stating that he did not have a vehicle and asked the examination to be performed close to his residence or provide information on any shuttle services available to the Veteran to travel to the VA facility. In the October 2019 Board decision, the matter was again remanded for a VA examination. Duty to Notify and Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2020). The Veteran has not raised any argument with respect to the adequacy of notice and assistance. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009). In each case where a Veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. 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. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim. 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; 38 C.F.R. §§ 3.102, 4.3. To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for a right ankle condition In April 2016, the Veteran filed a service-connection claim for “no ankle.” See VA 21-526EZ, April 2016. A review of the evidence of record reflects that a service treatment record of January 1977 notes a problem with the bilateral heels. A service treatment record of January 1978 notes the Veteran’s report of “poss [sic] sprained ankle.” See STR-Medical, September 2014 at p.10 of 32. For the separation examination of April 1978, the Veteran reported that he was in “good health” generally and specifically denied having, or having had, swollen or painful joints, lameness, broken bones, or a bone, joint or other deformity. The clinical evaluation section on Page 1 of the report makes no findings as to “normal” or “abnormal” for the various systems, except for the notation of a tattoo on the left arm and a scar on the right side of the face. In February 2020, the Veteran was afforded a VA examination. Upon examination, the examiner noted that there was no pain associated with movement, no pain with weight bearing. C&P Exam, February 2020 at p.2 of 10. Moreover, the Veteran reported that there was nothing wrong with his right ankle, but that he hurt his left ankle in 1981 when he fell 55 feet. Id. The examiner noted that the left ankle is fused and noted the Veteran’s report that he injured his left ankle after active service during the Veteran’s civilian employment. As the Veteran has denied having a current right ankle condition or symptoms associated with a right ankle condition, the first element of service connection has not been met; and therefore, service connection for a right ankle condition is not warranted. As the preponderance of the evidence is against the claim for a right ankle condition, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, 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.