Citation Nr: 20034415 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 16-47 468 DATE: May 18, 2020 ISSUE Entitlement to service connection for a right ankle disability, to include as due to a service-connected left ankle disability. ORDER Entitlement to service connection for a right ankle disability, to include as due to a service-connected left ankle disability is denied. FINDINGS OF FACT The Veteran’s right ankle disability is not shown to be causally or etiologically related to any disease, injury, or incident in service, nor proximately due to or aggravated by his service-connected left ankle disability. CONCLUSIONS OF LAW The criteria for entitlement to service connection for a right ankle disability, to include as due to a service-connected left ankle disability have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from September 1980 to September 1984, from December 1984 to January 1993, and from February 1993 to January 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. The Veteran’s claim for entitlement to service connection for a right ankle disability, to include as due to his service-connected left ankle disability has been previously remanded by the Board in January 2019, November 2019, and most recently in February 2020, each time for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for a right ankle disability, to include as due to a service-connected left ankle disability. The Veteran is claiming that his right ankle disability is due to his active duty service. He has also claimed that his right ankle disability is proximately due to and/or aggravated by his left ankle disability. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Turning to the available evidence, the Veteran has a current diagnosis of a right ankle disability. The Veteran was seen in-person for a March 2020 VA examination, whereby he was diagnosed with lateral collateral ligament sprain of the right ankle. As the Veteran has a current diagnosis, he has met the first criteria for entitlement to service connection. 38 C.F.R. § 3.310. The Board also notes that the Veteran is currently service connected for left ankle degenerative arthritis with tendonitis status post left ankle fracture (a left ankle disability). As the Veteran has an already-service connected disability, he has met the second criteria for entitlement to service connection on a secondary basis. 38 C.F.R. § 3.310. Turning to the final criteria, the weight of the evidence must demonstrate that the non-service-connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). To begin, in the Veteran’s Notice of Disagreement (NOD) from July 2014, he wrote that he has “good days and bad days with my ankles, as it becomes difficult for me to walk at times.” He further wrote that he finds himself limping after prolonged use, and that since his left ankle pain emerged earlier than his right ankle pain, “this has also placed an undue burden on my right ankle as more weight is required for mobility on the right foot.” These statements were echoed in his Form 9 from September 2016, where he wrote that he finds himself “placing more effort on the right foot and ankle.” He also stated that he must adjust his daily activities, and that he takes medication to help the “throbbing pain.” The Form 9 also indicates that his right ankle disability could be due to service, where he experienced a right ankle “injury while in the Basic Warrant Officer Course at Quantico, VA,” and had to use crutches as a result of the injury. These statements were repeated in email correspondence from December 2016. The Veteran is competent to report the symptoms he experiences, such as those associated with his favoring of the right ankle, and the pain he experiences in his right ankle. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Turning to the medical evidence, previous Board decisions have already made probative weight determinations as to some VA examinations. Specifically, in a January 2019 Board remand determined that the April 2017 VA examination was inadequate, as no etiological opinion was rendered as to the right ankle. The November 2019 Board Decision determined that the June 2014 VA examination, which opined that the Veteran’s left ankle disability did not cause his right ankle disability, also needed to discuss possible aggravation of that right ankle disability. The November 2019 Board Decision also determined that the August 2019 VA examination, which provided a negative opinion as to the link between the right ankle injury and service, did not fully discuss the possibility of secondary service connection. Most recently, the February 2020 Board Decision found that a December 2019 VA addendum opinion was inadequate. While the December 2019 opinion stated that the Veteran’s right ankle disability was not at least as likely as not due to his active duty service, it did not fully incorporate the Veteran’s lay statements. As a result, in the February 2020 Board Decision, this issue was remanded for a VA examination. That examination occurred in March 2020. The Veteran was seen in person, and it is clear from the extensive discussion of the Veteran’s medical history that the examiner reviewed the Veteran’s claims file. As noted above, the examiner confirmed the diagnosis of the right ankle disability, but also confirmed the left ankle disability The examination also includes a substantial discussion as to the lay statements provided by the Veteran, including his claim of “favoring his right ankle,” and that he must “take it easy” with his walking to avoid worsening pain. The examiner then cited to specific examples from the Veteran’s medical history of right ankle injuries, including a notation from July 2003 of a “right talar dome” injury, and then a referral for physical therapy for bilateral ankle pain from May 2010. It is also clear from a discussion of a left ankle injury in April 1993, that the examiner reviewed the Veteran’s service-treatment records (STRs). Finally, the examiner opined that the Veteran’s right ankle disability was not at least as likely due to the left ankle disability, and the following rationale was provided: The Veteran has a notable left ankle injury while on active duty in 1993. He remained in active duty for another 10 years without developing any difficulty in the right ankle to warrant medical attention. There was an apparent acute right foot injury after leaving active duty in July 2003 to the “talar dome” which is the bone forming the base of the ankle joint … there is no medical information of any ongoing right ankle pain after review of the available medical records although many other medical issues are well-documented, until [May 2010] when ongoing right ankle pain is discussed in a physical therapy referral [which the Veteran refused] … there are no more specifics regarding the right ankle at that time. The Veteran then sought medical treatment again nine years later for bilateral foot pain in [August 2019]. The examiner then stated that the injuries from August 2019 “result in subjective instability while walking but not notable laxity of the tendons [which] is noted one examination today.” The opinion continues by addressing the Veteran’s lay statements of favoring his right ankle, but stated that there is no medical information in his medical records nor in the medical literature to make that statement more likely than not valid from a medical perspective. The examiner then cited to specific medical literature, which refutes the Veteran’s claims of a right ankle injury resulting from his favoring of the opposite limb. Even if the Veteran’s right ankle was subject to overuse however, the examiner noted that the Veteran has no such displacement of his center of gravity, shortening of the limb or abnormal gait pattern. Thereby, he does not physically demonstrate any increased burden on the right ankle with observed routine activity. Thus, it is less likely than not that the Veteran’s SC-left ankle condition has caused any right ankle condition to develop. Following the negative etiological opinion, the examiner wrote that the Veteran’s right ankle disability is instead more likely “due to stressors directly on the joint from the Veteran’s obesity and age.” There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s right ankle disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran’s right ankle disability is not proximately due to or the result of the left ankle disability, or aggravated (increased in severity) beyond its natural progress by the left ankle disability. To begin, the Veteran has consistently reported that he believes his right ankle disability is due to favoring as a result of his service-connected left ankle disability, and as noted above, he is competent to report on his experiences. Unfortunately, however, the Veteran, as a lay person, is not shown to have any medical education, training, or experience so as to be competent to render an etiological medical conclusion, which clearly requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). Having said that, the Board has provided significant probative weight to the March 2020 VA examiner’s opinion. This opinion denied the etiological link between the Veteran’s service-connected left ankle disability and his right ankle disability. The opinion provided fully considered the Veteran’s lay statements, and specifically cited the medical history as it relates to the Veteran’s right ankle injuries. Medical literature is also cited to directly respond to the Veteran’s claims of “favoring,” and to address potential aggravation by the service-connected left ankle disability. The examiner discussed the Veteran’s current right ankle diagnosis and how that differs from the May 2010 and August 2019 injuries. Finally, the examiner provided an alternative theory, that the Veteran’s current right ankle disability was instead due to his weight and age. The Board also notes that the Veteran’s claims file contains significant gaps of time whereby the Veteran had no complaints of right ankle pain. There is no evidence of continued pain, nor complaints, from the July 2003 “right talar dome” injury of the right foot, until a physical therapy note of “bilateral ankle pain” from May 2010, and then there is no further diagnosis until the August 2019 VA examination. While prior Board decisions determined that the June 2014 and April 2017 examinations were inadequate due to the etiological opinions provided, the Board equally notes that neither the June 2014 examination, nor the April 2017 examination found disabilities related to the right ankle. It was only in August 2019 that the decreased range of motion was found for the right ankle. And while the Board recognizes that the June 2014 and April 2017 examinations have been afforded limited probative weight due to etiological inadequacies, it is worth mentioning that they also denied any link between the Veteran’s right ankle and his left ankle and/or his active duty service. There is also no medical evidence which provides a positive etiological opinion between the Veteran’s service-connected left ankle disability and his right ankle disability. Thus, the Board finds that the Veteran’s right ankle disability is not proximately due to or the result of the left ankle disability, or aggravated (increased in severity) beyond its natural progress by the left ankle disability. As such, he has not met the third criteria for entitlement to service connection on a secondary basis. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). As it relates to the Veteran’s claim for entitlement to service connection for the right ankle disability on a direct basis, the Board notes that the Veteran has claimed his right ankle disability was due to his Warrant Officer Course at Quantico, VA. The Board notes however that the Veteran’s service-treatment records contain no evidence of a complaint of a right ankle disability, nor right ankle pain. When the Veteran has complained of ankle pain, such as in April 1993, it was to the left ankle only. The Veteran’s separation exam also has no mention of a right ankle disability. Equally, and as discussed above, previous examinations have given negative etiological opinions as to the Veteran’s right ankle disability being due to his active duty service, and the Veteran’s claims file contains no positive medical evidence for such a link. As such, the Veteran also does not meet the criteria for entitlement to service connection for the right ankle disability on a direct basis. 38 C.F.R. § § 3.303(a). In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.