Citation Nr: 21001789 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 20-20 400 DATE: January 11, 2021 ORDER Service connection for a right ankle condition, to include as secondary to the service-connected disability of coronary artery disease status post angioplasty (claimed as heart condition) is denied. FINDING OF FACT The Veteran’s right ankle condition is not related to service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a right ankle condition, to include as secondary to a heart condition, are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1147, 5107; 38 C.F.R. §§ 3.102, 3.155, 3.303, 3.307, 3.309, 3.310, 20.904. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1954 through May 1957, December 1958 to June 1962 and from July 1962 through February 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This matter was previously before the Board in August 2020. At that time, the Board remanded the claim for service connection for a right ankle condition in order to afford the Veteran a VA examination to determine the nature and etiology of his right ankle condition. The record reflects that a VA examination for the Veteran’s right ankle condition was conducted in November 2020. Accordingly, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran’s Contentions The Veteran contends that his right ankle condition is a result of his duties in service, including “all the walking, running and jumping.” Notably, he does not assert that he has experienced right ankle pain continuously since service. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). Service connection Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Certain chronic diseases will be presumed related to service, absent an incurrent cause, if they were shown as chronic in service; or if they manifested to compensable degree within a presumptive period following separation from service; or if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1147; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may also be granted where a disability is proximately due to or aggravated by an already service-connected disability. 38 C.F.R. § 3.310. To establish secondary service connection for a disability there must be (1) a current disability (for which secondary service connection is sought); (2) an existing service-connected disability, and (3) evidence that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App, 518 (1996). Here, the Veteran is able to establish the existence of a right ankle condition based on his complaints of pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran is also able to establish the second element for direct service connection as the Veteran’s service treatment records (STRs) reflect an October 1959 injury to the Veteran’s right ankle, with soft tissue swelling noted. A November 1968 STR entry reflects the Veteran’s complaint of right ankle pain. A radiography report noted that the Veteran twisted the ankle in 1959 but found no osseous abnormality. As noted, the Veteran was afforded a VA examination in November 2020. The Veteran reported to the examiner that beginning in 2015, he experienced vague right ankle pain with swelling and could not stand or walk for any length of time because of severe pain. The examiner found full range of motion with no evidence of pain. The examiner concluded that the Veteran’s claimed right ankle condition was less likely than not incurred in or caused by service because there was no continuous ongoing medical treatment or aggravation of a chronic right ankle joint condition since discharge. VA treatment records do not reflect any treatment for the Veteran’s right ankle. The Board finds the VA examiner’s opinion to be adequate and highly probative as it is based on a review of the relevant medical records and a physical examination of the Veteran, and provides an explanation that contains clear conclusions and rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that there are no contradictory medical opinions of record. While the Veteran is competent to report his symptoms, he has not indicated that he has experienced right ankle pain continuously since service, and there is no indication in the record that he is qualified to provide a nexus opinion relating his current disability to the ankle pain he experienced in service. Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007). Moreover, the fact that the symptoms appear to have first manifested decades after service is a factor that weighs against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000). The Board also notes that the Veteran’s right ankle condition is not eligible for presumptive service consideration under 38 C.F.R. §§ 3.303(b) and 3.309(a) because the Veteran does not have a current diagnosis of arthritis or any other ankle condition that would qualify as a “chronic disease.” An October 2020 imaging study of the Veteran’s right ankle noted a small plantar calcaneal spur but otherwise concluded that the Veteran’s right ankle was normal. The VA examiner noted the lack of any arthritis diagnosis and there is no evidence of such a diagnosis in the Veteran’s VA treatment records. Accordingly, there is no basis to consider whether the Veteran’s right ankle condition is presumptively related to service as a chronic condition. Nor is there evidence that the Veteran experienced right ankle pain since service, as the Veteran explicitly reported to the VA examiner that his condition started in 2015 and stated in his Notice of Disagreement that his claimed conditions were caused by service, but “did not show . . . until later.” Nor is there any basis for secondary service connection. Although the Veteran is service connected for heart disease, the Veteran has not submitted any evidence to support the claim that his right ankle condition is related to his heart disease. In the absence of competent medical or lay evidence relating the Veteran’s claimed right ankle condition to his heart disease, there is no duty to provide a VA examination in support of the claim for secondary service connection. See Waters v. Shinseki, 601 F.3d 1274, 1276-77 (2010) (VA has no duty to provide an examination when there is no competent evidence of a nexus between a current disability and an in-service injury, disease, or event). Finally, the Board acknowledges that the Veteran’s representative attempted to raise a new claim in the December 2020 informal hearing presentation (IHP). Specifically, the Veteran’s representative argues that the Veteran has neuralgia in his feet caused by his heart disease. The Veteran’s representative has not raised a claim of entitlement to service connection for bilateral foot neuralgia as the statement in the IHP does not meet the specific criteria for filing a claim. 38 C.F.R. § 3.155. Nor is there a basis to broaden the claim of a right ankle condition to include neuralgia in his feet. In Clemons, the United States Court of Appeals for Veterans Claims held that, in determining the scope of a claim, the Board must consider the Veteran’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In the instant matter, the Veteran has specifically identified his right ankle the basis of his claim, and the Board considers the claim for neuralgia of his feet to be new, separate and distinct. Accordingly, the Board finds Clemons inapplicable and will not assert jurisdiction over the claim for service connection for neuralgia in his feet. 38 C.F.R. § 20.904(b). In sum, the Board finds that service connection for the Veteran’s claimed right ankle condition is not supported by the preponderance of the evidence. Accordingly, service connection is denied. As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.