Citation Nr: 20044083 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 15-15 181 DATE: June 30, 2020 ORDER Entitlement to service connection for a left ankle disability, to include as due to a bilateral knee disability is denied. Entitlement to service connection for a right ankle disability, to include as due to a bilateral knee disability is denied. FINDINGS OF FACT 1. A left ankle disability did not manifest during active service or within one year of separation and was not caused by any aspect of service and was not proximately caused by, or aggravated by, a service-connected disability. 2. A right ankle disability did not manifest during active service or within one year of separation and was not caused by any aspect of service and was not proximately caused by, or aggravated by, a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left ankle condition have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2019). 2. The criteria for entitlement to service connection for right ankle condition have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) in the United States Marines Corps from July 1985 to December 1986. This matter comes before the Board of Veterans’ Appeals on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in May 2018. A transcript of the hearing is associated with the electronic claims file. This case was previously before the Board in June 2018 at which time it was remanded for a new VA examination. The examination was necessary to determine the etiologies of the Veteran’s current left and right ankle disabilities. The directives having been substantially complied with; the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has re-characterized the service connection issues, as reflected above, to address most fully the benefits sought by the Veteran on appeal. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection The Veteran contends that her left and right ankle conditions were incurred in, caused by, or aggravated by service. Alternatively, the Veteran contends that the left and right ankle conditions were proximately caused by, or aggravated by, her service-connected bilateral knee condition. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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 or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.§§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). All have a presumptive period of one year following separation from service. 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) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310 (a)-(b). Left and Right Ankle In an August 1985 STR, the Veteran was diagnosed with a right ankle inversion sprain. The Veteran also endorsed having right ankle swelling and pain. The Veteran indicated that she stepped on her ankle “the wrong way” during a fire drill. See February 1989 STR-Medical, p. 22. In another August 1985 STR, the Veteran was seen for a right ankle sprain and was given a cast. See February 1989 STR-medical, p.20. In a September 1985 STR, the Veteran reported that she sprained her ankle during a fire drill a month prior. The clinician noted the ankle range of motion was normal except for the dorsiflexion. The clinician also noted that the Veteran would be receiving ankle rehabilitation therapy the following week. See February 1985 STR-Medical, p.18. In another September 1985 STR, the Veteran was again seen for her right ankle. The Veteran indicated that her right ankle was improving. The clinician indicated that the Veteran had a right ankle sprain with very mild edema. In addition, the range of motion and strength were good but there was some tenderness. The clinician also indicated that the sprain to the right ankle was resolving (healing). She was returned to full duty. See February 1989 STR-Medical, p.17. In a November 1985 STR, the Veteran was seen for left ankle pain that had persisted for 6 days. The Veteran denied a history of trauma and stated that the pain went from her ankle and shot up her leg. The Veteran reported that the pain occurred mostly when she walked and did drills. The Veteran also indicated that she sprained her right ankle that past August and had a similar pain, but it was not as bad. In addition, the clinician noted that there was minimal edema and the Veteran walked with a limp. The diagnosis was a contusion. See February 1989 STR-Medical, p.12. In a February 1986 STR, the Veteran complained that she twisted her left ankle on a stairway. A clinician determined that the Veteran sprained her ankle. See February 1989 STR-Medical, p.11. In a November 1986 report of medical separation examination, the clinical evaluation revealed that all systems were normal. In a concurrent medical history questionnaire, the Veteran identified knee abnormalities but denied any foot trouble. See October 2013 Medical Treatment Record-Government Facility, p.8. In a March 1988 report of annual medical examination for Reserve service, the clinical evaluation revealed that all systems were normal including her lower extremities. In a concurrent medical history questionnaire, the Veteran identified knee abnormalities but denied any foot trouble See October 2013 Medical Treatment Record-Government Facility, p.6. In a March 1989 VA treatment record, a clinician noted that the Veteran’s right ankle was normal. The Veteran reported that she had an aching sensation that developed in her ankles at times. The Veteran indicated at that time that her ankles were less of an issue than her knees. The impression given was that the Veteran had chronic recurrent pain in both ankles. The clinician stated that the Veteran’s ankle issues were primarily on her right ankle. However, the clinician incorrectly stated that the only ankle the Veteran injured in-service was her right ankle. See April 1989 Medical Treatment Record-Government Facility, p. 1-5. A December 1989 Reserve medical assessment was silent for any ankle abnormalities. In an April 2014 VA treatment note, the Veteran reported that there was a popping sound in her right ankle that had been present for 6 months. The Veteran denied that there was any pain or swelling. See May 2014 Capri, p.1. In May 2014 the Veteran was afforded a VA examination. The examiner indicated that the Veteran did not have a diagnosed ankle condition. The examiner noted that the onset of the Veteran’s ankle symptoms was in August 1985. The Veteran reported that the condition began with an inversion injury to the right ankle while she was in boot camp. Since the injury the Veteran indicated that the injury had gotten worse. The range of motion for the left and right ankle were normal at 45 degrees or greater; and the left and right extension of the ankles were normal at 20 degrees or greater. The Veteran did not use any assistive devices. The Veteran reported that she served in the Marines from July 1985 to October 1989 and stated that she did not participate in combat. The examiner indicated that there were contributing factors of pain; fatigability and incoordination but no additional limitation of functional ability of the ankle joint during flareups or repeated use over time. The examiner indicated that the Veteran did not have and never an ankle diagnosis. There was an incidental finding of calcaneal spurs was seen on her X-ray bilaterally and a diagnosis was made; however, at the time of the examination the condition was asymptomatic, and the examiner stated it was not related to the history of an ankle sprain 30 years ago. The examiner also noted that the left and right ankle had no diagnosis since there was no pathology to render a diagnosis. The examiner concluded that it was less likely than not that the bilateral ankle condition was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran’s X-ray and exam were essentially within normal limits. In a May 2014 radiology note, X-rays of the ankles performed during the VA examination yielded trace dystrophic calcification adjacent to the medial malleolus in the left ankle, while the right ankle was reportedly negative for any significant bone, joint, or soft tissue abnormality. See June 2014 C&P, p.1. In December 2014, the Veteran submitted a notice of disagreement. The Veteran stated that she hurt her ankles in-service and they remained a problem from service until the present. The Veteran indicted from the time she injured her ankles in-service until now that her symptoms have been chronic. See December 2014 NOD, p.3. In an April 2015 private treatment note, a clinician diagnosed right ankle pain and chondromalacia of the patella. The clinician gave the Veteran an injection which did not provide any relief and recommended that the Veteran attended physical therapy. See June 2018 Medical Treatment Record-Non-Government Facility, p.5. In May 2015 VA treatment note, the Veteran underwent a magnetic resonance image (MRI) study that revealed right ankle mild edema and a remote injury of the anterior talofibular ligament (ATFL). See July 2016 Medical Treatment Record-Government Facility, p.1. In another May 2015 VA treatment note, indicated the Veteran was diagnosed with left and right ankle chondromalacia. See July 2016 Medical Treatment Record-Government Facility, p.1. In a March 2016 VA treatment note, the Veteran presented for an evaluation of her chronic ankle pain. The Veteran reported that she experienced pain since her military service. Bilateral tenderness and decreased range of motion were noted upon examination of the ankles. The clinician noted a diagnosis of bilateral ankle osteoarthritis and degenerative joint disease. See July 2018 Medical Treatment Record-Government Facility, p.25. In a May 2016 VA treatment note, upon examination the Veteran displayed bilateral tenderness with decreased range of motion in the ankles. See July 2018 Medical Treatment Record-Government Facility, p.16. In a June 2016 private treatment note, the Veteran reported that she injured her right ankle during boot camp in 1985 and was placed in a cast. The Veteran stated since that time she had problems with ankle rolling and other issues. The Veteran further stated that she had swelling and popping in her ankle which worsened with activity. The Veteran also indicated that her left ankle occasionally popped and swelled. See June 2016 Medical Treatment Record-Non-Government Facility, p.1. In a July 2016 private treatment note, a clinician indicated that the Veteran had been taking anti-inflammatories; was attending physical therapy and was working on rehabilitation at home. The clinician indicated that the Veteran seemed to be improving but did have some achiness in her left ankle and occasional swelling in her right ankle. See July 2018 Medical Treatment Record-Non-Government Facility, p.4. In an October 2017 VA treatment record, indicated the Veteran presented with complaints of a right ankle twist. Through x-ray findings, the Veteran was assessed with an acute, closed distal fibula fracture of the right ankle. See May 2018 Medical Treatment Record-Government Facility, p.20. In an April 2018 VA treatment record, the Veteran was diagnosed with a torn right ankle anterior talofibular ligament. See May 2018 Medical Treatment Record-Government Facility, p.6. In May 2018, the Veteran underwent a private ankles examination, that was completed on a VA examination form. The examiner noted that the Veteran had a diagnosis of lateral collateral ligament sprain; and an impingement on the right-side ankle. The examiner also noted that the Veteran had osteoarthritis of both ankles. The Veteran reported that the conditions caused functional impact in the form of limited ambulation. However, the examiner did not provide a medical opinion for this examination. In May 2018, the Veteran testified during a Board hearing. The Veteran testified that she injured her ankles during a fire drill, while in boot camp. The Veteran reported that she was going to the back of the platoon to get her place in line and turned her right ankle; which popped and swelled. As a result, she was placed on light duty. The Veteran also indicated that she experienced various other injuries to her ankles while on active duty. See May 2018 Hearing Transcript, p.3. The Veteran further testified that the ankle injuries she sustained in-service limited the amount of physical activity she was able to do. The Veteran stated that she did not do a lot of hiking, walking and after 10 minutes of walking her pets with her husband she would get tired. See May 2018 Hearing Transcript, p.4. In June 2018, the Veteran had a preoperative evaluation. The Veteran was evaluated for surgical intervention for a torn anterior talofibular ligament of the right ankle. The Veteran reported that she injured her right ankle in October 2017. The Veteran also endorsed that she had been wearing an ankle brace; had difficulty going up inclines; down declines, uneven terrain; had issues with prolonged standing and physical activity. The impression given was that the Veteran had a diagnosis of torn anterior talofibular ligament of the right ankle. See July 2019 Medical Treatment Record-Government Facility, p.1;3. Later in June 2018 after the Veteran’s right ankle surgery, the Veteran had no new complaints. The Veteran continued with non-weightbearing and was placed in a fracture boot at a prior visit. See July 2019 Medical Treatment Record-Government Facility,7. In a July 2018 VA treatment note, a clinician indicated that the Veteran’s surgical incision was well-healed, and no edema was noted. The clinician also noted that the Veteran’s ankle had progressed satisfactorily. Furthermore, the clinician indicated that the Veteran could begin weight-bearing while wearing her fracture boot. See July 2019 Medical Treatment Record-Government Facility,12. In an August 2018 VA treatment note, a clinician noted that the Veteran could transition out of the fracture boot and would be beginning a six-week physical therapy program. See July 2019 Medical Treatment Record-Government Facility, p.13. In a September 2018 VA treatment record, the clinician gave the assessment that the Veteran had decreased pain; improved gait and the right ankle’s range of motion had been restored. See July 2019 Medical Treatment Record-Government Facility, p.25. In an August 2019 radiology note, the clinician noted that the right ankle had a plantar spur involving the calcaneus. The clinician also noted that there were degenerative spurs medial and lateral malleolus; however, there was no evidence of a fracture or dislocation. See C &P Exam, p.1. The clinician indicated that the left ankle had punctate old avulsion fracture fragments involving the medial malleolus and there was an achilles spur of calcaneus. See C &P Exam, p.2. In August 2019, the Veteran was afforded another ankles VA examination. The examiner reviewed the claims file; considered the Veteran’s subjective accounts and conducted an evaluation. The examiner noted that the Veteran had a current diagnosis of degenerative arthritis of the right ankle, that was diagnosed in August 2019, as well as lateral ankle stabilization of the right ankle. The examiner also indicated that there was a diagnosis of an old avulsion fracture left medial malleolus. The Veteran reported a right ankle sprain in November 1985 and pain and contusion of left lateral malleolus for an unknown reason. Then the Veteran indicated that she twisted her left ankle on a stairway in February 1986 after service. The Veteran further stated that she sprained her ankles about once per year, spraining the right more than the left. The Veteran also noted that she able to self-treat her injuries. In addition, the Veteran noted that the last time she sprained her left ankle was in 2004 but fell and broke her right ankle in October 2017. The Veteran ended up having right ankle surgery in April 2018, followed by six weeks of physical therapy. The examiner noted that the Veteran had healed well since her surgery. The Veteran reported that both ankles felt stiff and that the right one became swollen times since her surgery and that sometimes it ached while walking. The Veteran noted that she had not missed work due to her ankles other than for surgery; and she used no assistive devices. The examiner provided opinions for direct service connection, aggravation and secondary service connection. However, instead of discussing each in the same medical opinion, the examiner wrote separate opinions for each as it related to the left and right ankle separately. As to direct service connection the examiner concluded that the bilateral ankle condition was less likely than not incurred or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran’s bilateral ankle sprains in-service were only acute, and there was no evidence of chronicity of care. Furthermore, the examiner indicated that a nexus had not been established since the Veteran’s records were silent from 1989-2014 for any ankle conditions, evaluations or treatment. The Veteran went a 25-year period without any complaints. Also, the examiner later noted that the Veteran’s STR’s showed that the Veteran did not have an ankle condition during her April 1985 entrance examination and in her November 1986 discharge examination as well as her May 1988 reserve examination denied bone joint deformity, foot trouble, broken bones, painful or swollen joints and indicated that she was in good condition. The examiner concluded that it was less likely than not that the right ankle disability was proximately due to or the result of the Veteran’s service-connected left knee or right knee conditions. The rationale was that the conditions are not medically related. The examiner indicated that the right ankle is an entirely separate entity from the left and right knees. Furthermore, the examiner stated that medical literature did not support a medical relationship. The examiner later indicated that the knee does not affect ambulation or weight bearing of the ankle. In terms of secondary for the left ankle, the examiner indicated that the condition was less likely than not proximately due to the service-connected left or right knee conditions; because the left ankle is a separate entity entirely from the service-connected left and right knee. As stated above the Veteran’s medical records were silent from 1989-2014 for any ankle conditions. The Board recognizes the Veteran's belief that her current left and right ankle conditions were incurred in, caused by or aggravated by service; or were proximately caused by, or aggravated by, her service-connected bilateral knee conditions. Although the Veteran is competent to report continued pain and recurrent sprains, these reports of continuity and reinjury immediately after service warrant low probative weight as they are inconsistent with the examinations at discharge from active duty and subsequent Reserve service and periodic Reserve examinations. As a lay person, the Veteran lacks the competence to render complex medical diagnoses or etiologies. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board assigns diminished probative weight to this lay evidence. The competent and credible medical evidence of record, as reflected above, in which the Board places considerable probative weight, shows that the current disability element of establishing service connection for bilateral ankle condition is met. Even though current disabilities were established, other than the Veteran's subjective accounts, the record of evidence fails to disclose the nexus between the Veteran’s current bilateral ankle condition and in-service acute and resolved ankle sprains. Although, the Veteran’s sprained both ankles in separate events in-service, both of the Veteran’s discharge and reserve examinations indicated that any ankle sprain had resolved. Furthermore, the Veteran’s medical evidence fails to show cause, or chronicity of bilateral ankle condition, because the Veteran’s medical records show a gap in treatment or complaints of any ankle problems from 1989 until 2014. The Board may not discount the Veteran’s report of continuity of ankle pain solely because of the absence of treatment. However, the medical examiner considered her reports and found that the absence of abnormalities reported or noted during discharge and Reserve examinations weighed against these reports. Further, as the competent and credible evidence of record fails to disclose that the bilateral ankle symptomatology was present within a year of the Veteran's discharge from active duty service, the provisions of 38 C.F.R. § §§ 3.307(a), 3.309(a) are not for application. To warrant service connection, there must be a disease or injury in service, as well as a connection, or nexus, between such and any current disability. No nexus is shown here. In the absence of evidence, there cannot be equipoise, and there can be no doubt to be resolved. The Veteran still ultimately bears some burden of evidence production. 38 U.S.C.§ 5107(a); see also Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). The Board finds that the competent medical evidence of records fails to establish service connection secondary to bilateral knee disabilities. As noted above, VA clinicians opined that the Veteran’s left and right ankle conditions were separate and distinct disease entities from her service-connected left and right knee conditions. The Board assigns considerable probative weight to these professional medical opinions. The clinicians reviewed the claims file; considered the Veteran's lay accounts; performed evaluations; and provided evidence-based and medically informed rationales for the conclusions reached. (continued next page) Therefore, the preponderance of the evidence is against the bilateral ankle service connection claims. As such, the benefit-of-the-doubt rule does not apply, and the Veteran’s bilateral ankle condition claim, must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Long-Ellis, 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.