Citation Nr: 20053699 Decision Date: 08/13/20 Archive Date: 08/13/20 DOCKET NO. 17-24 582 DATE: August 13, 2020 ORDER Entitlement to service connection for left ankle strain is denied. FINDING OF FACT The preponderance of the evidence is against finding that the current left ankle disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a left ankle strain are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2003 to November 2011. This matter comes before the Board of Veterans’ Appeals (Board) following a November 2018 Board remand. This matter was originally on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, establishing service connection requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. 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 Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for left ankle strain The Veteran contends that his current left ankle strain is due to a left ankle sprain that occurred while in service in June 2004. The Veteran’s service treatment records (STRs) show that the Veteran was diagnosed with a left ankle sprain in June 2004. A July 2004 STR note indicates the Veteran’s left ankle sprain healed and the Veteran was able to return to full duty. Further, the Veteran’s July 2004 STR note shows the Veteran reported improvement of his left ankle following rehab and that his pain was minor. The examiner noted the Veteran’s left ankle sprain was healed. In the Veteran’s August 2011 separation Report of Medical Examination, the examiner reported the Veteran’s lower extremities were normal. The examiner reported knee pain had resolved but did not mention the Veteran’s ankle. In the Veteran’s Report of Medical Assessment, the Veteran reported he did not have a condition that limited his ability to work in his primary military specialty or require geographic or assignment limitations. An August 2015 radiology report noted the Veteran’s examination of his left ankle showed no evidence for fracture or other significant bone, joint or soft tissue abnormality. Further, the report noted a negative left ankle impression. In August 2015 the Veteran was afforded a VA examination. The Veteran reported he injured his left ankle while playing basketball in service and the condition has worsened over time. In addition, the Veteran reported he had put on 50 pounds since leaving service, his left ankle popped when he moved it, and he had not seen a doctor regarding his ankle since 2006. The Veteran reported he experienced flare-ups of his left ankle every morning upon walking, lasting approximately 35 to 40 minutes resulting in popping that sends pain up to his shin. Further, the Veteran reported he tries not to put a lot of pressure or weight on it due to the pain caused by his ankle popping. The examiner opined that the Veteran’s left ankle disorder was less likely than not incurred in or caused by the Veteran’s in-service injury. The examiner noted the Veteran’s STRs reported his left ankle sprain healed and there are no other medical records showing continuity of care for the Veteran’s left ankle sprain to show correlation with his current diagnosis. In a May 2017 VA Form-9, the Veteran stated that he injured his left ankle in service during physical training. The Veteran stated that his injury resulted in a nagging pain and his left ankle popping. Furthermore, the Veteran stated that his injury has always bothered him, and he did not complain about his ankle injury in service for fear of being labeled. In a July 2017 VA treatment note, the examiner noted the Veteran reported he first injured his left ankle in 2004. He stated that his pain and swelling decreased, and he was able to be active on it. However, he “rolled” it again running in 2005. Additionally, the Veteran reported he has had lateral ankle pain for the last three years, and experiences popping and soreness. In November 2018 the Board remanded the Veteran’s claim because the VA examiner did not consider the Veteran’s lay statements regarding ongoing ankle pain due to his in-service injury. In August 2019, the Veteran was afforded a new VA examination. The Veteran reported after leaving service approximately seven to eight months later compounded with weight gain his left ankle started to bother him again and became more persistent over time. The examiner opined the Veteran’s claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated the Veteran was seen for left ankle strain in 2004 that resolved without sequelae. He remained in the military until 2011 with no further visits for ankle concern and reported his ankle bothering him after leaving the military. Thus, it is very unlikely that the same strain would manifest itself after leaving the military and not during the previous years when he was subjected to more rigorous training; the current sprain is not related to his sprain in 2004. The Board finds that the August 2019 VA examiner’s unfavorable opinion is adequate and dispositive of the nexus question presented in this case because it is based on a review of the file and consideration of the Veteran's contentions. While the Veteran is competent to report on symptoms, he is not competent to opine on the etiology of muscle and ligament changes affecting the ankle joint because this concerns an internal physical process thereby rendering the question of causation a matter of medical complexity requiring medical expertise to resolve. While the Veteran believes that his current left ankle disability is a continuing disease process of symptomatology he experienced in service, his theory has been clinically rendered unfounded by the VA expert. Moreover, the Veteran’s treatment records lack evidence of treatment contemporaneous to service. In the August 2015 VA examination, the Veteran reported he had not sought treatment for his ankle since 2006. Although the Veteran also reported that he did not complain about his ankle injury in service for fear of being labeled, the Veteran did seek care and was treated for his ankle injury while in service. A July 2004 STR note also shows the Veteran reported he was in rehab for his ankle. Furthermore, upon examination on separation, the examiner indicated the Veteran’s lower extremities were normal. There is a problem of lack of clarity and consistency from the Veteran regarding the history of his ankle problems. Thus, the Board is not persuaded that the Veteran has had chronic ankle problems ever since the in-service injury. A continuity of symptoms since the original injury is not credibly shown. The Board is persuaded by the VA examiner’s opinion that the current disability is not etiologically related to the in-service injury. Also, as noted, service connection may also be granted for listed chronic diseases if such were shown as chronic in service; manifested to a compensable degree within a presumptive period (usually one year) after separation from service; or were noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Veteran, however, is not diagnosed with a chronic disease. In any event, there is no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed condition manifested to a compensable degree within a year of his separation of service or had its onset in service and continued ever since service. Therefore, service connection based on presumptive service connection or based on a theory of continuity of symptomatology is also not warranted. (continued on next page) As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the benefit sought on appeal is accordingly denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Daley, 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.