Citation Nr: 21001175 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-28 479 DATE: January 7, 2021 ORDER Entitlement to service connection for right leg condition is denied. FINDING OF FACT The Veteran’s right leg condition is not related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right leg condition are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a February 2016 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. This matter was previously before the Board in December 2018. The claim was remanded for Social Security Administration (SSA) records and an opinion on the nature and etiology of the Veteran’s right leg condition. In January 2020, the RO sent correspondence to the Veteran requesting a copy of the SSA award letter, to include whether the Veteran receives benefits for the right leg. In February 2020 the Veteran submitted a letter from SSA confirming removal of a Medicare penalty, however, an award letter was not submitted. In June 2020 a VA opinion was added to the file. Thus, the Board finds that the RO substantially complied with the December 2018 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran claims his right leg condition is related to service. Specifically, in the May 2014 notice of disagreement (NOD) he alleged, during basic training he reinjured an old ankle sprain, which resulted in the right leg condition. For the reasons discussed below, the Board finds the evidence weighs against a finding that the Veteran’s current condition is related to service. Therefore, service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases 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). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. §§ 3.303(b), 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 (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 evidence, service treatment records (STRs) reflected a September 1969 Medical Board Report diagnosing the Veteran with a left leg chronic anterior compartment syndrome and recommending discharge. The September 1969 separation examination reflected normal clinical findings for the lower extremities with the exception of the left leg. In the concurrent report of medical history, the Veteran reported good health with swollen or painful joints related to the left leg. Post service, an April 2014 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The examiner did not report a diagnosis for the right leg. The right knee exam was normal; no warmth redness, swelling or tenderness, and no right knee or lower leg condition noted. However, there was evidence of right foot drop and right calf atrophy on the examination, although there was no identifiable injury or underlying cause. Additionally, weakness in the right ankle was noted but not explained. It appears that no etiological opinion was provided because there was no “diagnosis.” In July 2015 VA treatment records the Veteran complained of chronic right leg pain, alleging he has had the pain since 1969. In March 2016 he complained of ongoing pain in his right leg and right foot and reported right foot drop since 1969. In a June 2016 statement the Veteran alleged he was discharged from service due to a right leg condition. A June 2020 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He was diagnosed with right foot drop. The Veteran provided three onset dates for the right leg pain, foot drop, and muscle tenderness. He reported the condition began prior to service while working in the steel mill and during service in 1969. He also reported the condition began post service in 1986 after he was injured in a truck accident. The examiner opined the right leg condition is less likely than not related to an in-service injury, event, or illness. It was reasoned, there are no records to establish an onset of a right leg condition beginning in service, as there are no reports of right leg pain during service. The Veteran gave conflicting reports regarding the onset of the condition and the right leg atrophy, weakness, and right foot drop appear to be secondary to a neurological condition that did not manifest during service. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current condition is not related to service. In this regard, the Board finds that the June 2020 VA opinion, discussed above, is the most probative evidence of record. The examiner found the condition was not related to service. It is supported by an adequate rationale, noting the Veteran gave conflicting reports regarding the onset of the condition and the right leg atrophy, weakness, and right foot drop appear to be secondary to a neurological condition that did not manifest during service. There are no contrary competent medical opinions of record. Therefore, the Board finds the June 2020 VA opinion is the most probative evidence. Although the Veteran has reported that he sustained a right leg injury during basic training and he was discharged from service as a result of the right leg, the Board finds this account is in direct conflict with the contemporaneous service treatment records. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). The September 1969 Medical Board Report recommended discharge due to a left leg chronic anterior compartment syndrome. The September 1969 separation examination reflected normal clinical findings for the lower extremities with the exception of the left leg. Furthermore, in the concurrent report of medical history, the Veteran reported good health with swollen or painful joints related to the left leg only. Furthermore, the Veteran has provided inconsistent onset dates for the right leg condition as demonstrated in the June 2020 VA examination. The memory fades and becomes more imperfect with the passage of time, while the documented reports more accurately reflect what actually happened. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding the declarant’s intent to speak the truth, statement may lack credibility because of faulty memory). Therefore, the Board finds the contemporaneous medical records more credible that the Veteran’s later assertion of an issue since service. The only evidence relating the Veteran’s right leg condition to an in-service injury are the Veteran’s lay statements. However, these statements alone do not establish a medical nexus. Indeed, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions on questions of etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). As such, as a lay person, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis, etiology, or causation of a specific disability. The question of diagnosis and causation, in this case, involves complex medical issues that the Veteran is not competent to address. Additionally, the Veteran was not treated for a right leg condition until 2014, 45 years post service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). During the February 2016 Board hearing the Veteran testified that the right leg condition is secondary to the left leg condition as he favors his left leg. To the extent that he is claiming a right leg condition secondary to his left leg condition, secondary service connection is not available, as the Veteran is not service- connected for the left leg condition. Accordingly, service connection for a right leg condition is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App.at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.