Citation Nr: 21001828 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 18-53 824 DATE: January 11, 2021 ORDER Entitlement to service connection for a left ankle disorder (claimed as left ankle fracture) is denied. Entitlement to service connection for a left femur fracture is denied. FINDINGS OF FACT 1. The preponderance of the competent evidence is against a finding that the Veteran’s current left ankle disorder, to include arthritis, had an onset during service or manifested within a year of service, and it was not otherwise the result of a disease or injury incurred in service. 2. The preponderance of the competent evidence is against a finding that the Veteran has a current left femur fracture as result of an injury incurred in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ankle disorder (claimed as left ankle fracture) have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for left femur fracture have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1960 to September 1963. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases listed in 38 C.F.R. § 3.309 (a), to include arthritis, may be presumed to be service connected if manifested to a compensable degree within a specified period of time post-service (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Nexus of a chronic disease listed in § 3.309(a) to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). 1. Entitlement to service connection for a left ankle disorder (claimed as left ankle fracture) The Veteran asserts that service connection is warranted for his current left ankle disorder. He reports that he injured his left ankle during service, and his left ankle has continued to cause him pain and discomfort since his in-service injury. The Veteran further reports that although he was not treated for any ankle problems during service, he injured his left ankle in the same injury that lead to his service-connected left knee disability. Initially, the Board notes that the Veteran’s service treatment records do not show any treatment or complaints of left ankle problems. His left lower extremity was evaluated as normal during his September 1963 examination prior to separation, and there was no indication of left ankle problems recorded on his associated report of medical history. The Veteran’s service treatment records do contain a July 1963 service clinical record cover sheet that shows on July 12, 1963, the Veteran sustained a contusion injury to his left thigh when he collided with another servicemember while playing softball. The Veteran was hospitalized for two days and placed on a physical profile. A subsequent July 22, 1963 service record shows that the Veteran’s was placed on a physical profile for one week due to pulled muscle in left leg. These records do not indicate of any ankle involvement at the time of July 1963 softball incident. The Veteran contends that although he was not treated for any left ankle problems at the time of July 1963 contusion injury, that the same softball accident has resulted in a left ankle injury. He reports that during his hospitalization, he noticed left ankle swelling, and although he did not seek any treatment for such left ankle problems in service, he has continued to experience ankle swelling, discomfort, and pain throughout remainder of his service and since his period of service. While the Veteran reports that he sought private treatment for left ankle in 1988, unfortunately, those records are unavailable. VA treatment records starting in 1997 do show complaints of left foot and heel pain associated with degenerative changes, healed fifth metatarsal fracture, and calcaneal spur, but these records do not show any associated left ankle complaints. The first post-service evidence of left ankle problems comes in November 2015 when the Veteran initiated his claim for service connection. Subsequent VA treatment records show complaints of long history of left ankle pain, and a February VA x-ray treatment report shows findings of mild arthritis in the left ankle. The competent medical evidence shows that the Veteran has been diagnosed with left ankle arthritis. See VA treatment records. Although the evidence of record demonstrates that the Veteran has a current disability, there is no evidence of an event, injury, or disease in service or a nexus to service. As noted, service treatment records are negative for any treatment or diagnosis of any ankle problems. Moreover, the Veteran does not assert treatment for any left ankle problems until a decade or more after his separation from service, and his left ankle arthritis was not observed until 2018, which comes decades after his separation from service. The Veteran contends that his current left ankle disorder is a result of the July 1963 softball accident. The Veteran is competent to describe a firsthand event such sustaining an injury and to describe observable symptoms such as pain and swelling. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, the Veteran does not have the medical expertise to diagnose any disability that results from the July 1963 injury. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), providing a medical diagnosis falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). There is no evidence showing that the Veteran has medical expertise or training and he is not competent to provide any medical diagnoses or medical opinions. As such his contention regarding the etiology of the claim disability are not probative. VA has already conceded that the Veteran sustained his left knee disability as result of in-service left thigh contusion injury from playing softball in 1963. However, the medical evidence generated at the time of that in-service injury does not document injury to the left ankle. Although the Veteran contends that he sustained a left ankle injury in July 1963, complaints related to the left ankle were not documented in the service treatment records. The Board finds that it is not believable or plausible that the health care providers would not document evidence of a significant left ankle injury, such as objective findings of swelling, in the treatment record and it is not plausible that the health care provider would not provide treatment for such injury if such injury existed. The Board finds that the Veteran’s service treatment records which document a contusion to the left thigh and pulled muscle are more probative than the Veteran’s lay statements made over 60 years after service that he sustained injury to his ankle in service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). The Board must weigh any competent lay evidence and make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both, sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). The Board finds that the Veteran’s statements that the in-service July 1963 softball accident caused a left ankle injury were made over 60 years after separation from service and such statements were made in connection with his claim for VA compensation benefits. The contemporaneous medical evidence generated at the time of the July 1963 softball accident do not corroborate his current lay statements. Further, as noted above, the Board finds that it is not plausible that the in-service health care providers would neglect to document and treat any left ankle swelling and discomfort during a hospitalization in addition to a contusion on left thigh. For these reasons, the Board finds that the Veteran’s lay statements are not credible and are outweighed by the service medical evidence. As there is no in-service injury, disease, or event to which a current (post-service) left ankle arthritis could be related, a VA examination and nexus opinion regarding direct service connection are not required. See Waters v. Shinseki, 601 F.3d 1274, 1277-88 (Fed. Cir. 2010); Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). Any opinion that purported to relate the current lumbar spine disability that began after service to something that did not happen in service would be of no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). As the weight of the competent and credible evidence does not demonstrate that the Veteran’s current left ankle disorder, to include arthritis, may be associated with service, elements (2) and (3) are absent. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With regard to presumptive service connection, the Board finds that the Veteran’s arthritis is properly afforded such consideration, as it is one of the enumerated conditions in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, there is no probative evidence of record that the Veteran’s left ankle arthritis manifested to a compensable degree within one year of the Veteran’s discharge from service in 1963. See 38 C.F.R. §§ 3.307 (a), 3.309(a). Instead, the probative evidence of record does not show treatment or complaints of chronic left ankle disorder until 2015 and does not reflect x-ray evidence of arthritis until 2018, which comes more than 60 years after service. As such, presumptive service connection as a chronic disease is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board also finds that the weight of the competent and credible evidence is against a finding that the Veteran experienced chronic and continuous symptoms of left ankle arthritis in active service or since his separation from service. The service treatment records do not document chronic ankle problems, and there is no treatment for chronic ankle problems until 2015, when the Veteran filed his initial claim for compensation and thereafter. The Board finds that the Veteran’s lay statements are not credible since his statements were first made over 60 years after service separation and were made in connection with his claim for compensation. The lay statements are too general and are not supported by the other evidence of record. The Board notes that the service treatment records do not support the Veteran’s assertion that he sustained left ankle injury in service. For these reasons, the Board finds the Veteran’s lay statements lack sufficient consistency to establish continuity of symptomatology from separation to diagnosis of the left ankle arthritis more than six decades later. Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.303 (b) is not warranted. Based on the foregoing, the Board finds that service connection for a left ankle disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a left ankle disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for left femur fracture The Veteran asserts service connection is warranted for a left femur fracture. He contends that he incurred a left femur fracture during the July 1963 softball accident when he collided with another servicemember and sustained a left thigh contusion injury. He reports that while he was not afforded x-ray at that time or at any point during his period of service, he believes that he sustained a left femur fracture as a result of the July 1963 softball accident. As noted above, the Veteran’s service treatment records do show that he sustained injury in July 1963 as result of a collision with another servicemember while playing softball. The Veteran was hospitalized for two days, and he was diagnosed with a contusion of the left thigh. There is no indication that an x-ray of the left femur was taken during his treatment for the left thigh contusion or at any point during his period of service. His September 1963 examination prior to separation shows that the Veteran’s left lower extremity was evaluated as normal, and there was no indication of left femur fracture or any left femur related complaints on his associated report of medical history. Initially, the Board notes that the competent evidence of record does not demonstrate that the Veteran has a current disability associated with his claimed left femur fracture at any point during the pendency of the appeal. Post-service medical records are silent for complaints, findings, treatment, or diagnosis of left femur fracture or any residuals thereof. Rather, his VA treatment records only show complaints related to his left knee and left ankle. Moreover, during his July 2018 VA hip and thigh examination, the VA examiner found that the Veteran had a normal left femur evaluation, and there was no documented evidence of a left femur fracture. In fact, at the time of the examination, the Veteran informed the VA examiner that he was not seen for any fracture in service. He denied orthopedic care or treatment for femur or left thigh condition at any point. Rather, the Veteran only complained of left ankle pain as result of his July 1963 left thigh contusion injury during service. There is no medical evidence in the record to the contrary; the Veteran has not identified any examiner or treatment provider who has diagnosed a left femur fracture or any residuals thereof. The Board has considered the Veteran’s lay testimony that although he informed the July 2018 VA examiner that he was not treated for a left femur fracture in service and it was not documented in the medical evidence, he believes he suffered a left femur fracture in service. See May 2019 Board hearing transcript. He further testified that he believes that a left femur fracture would have been documented in service but for the failure of the health providers to afford him an x-ray at the time of his July 1963 injury. Although the Veteran may sincerely believe he suffered a left femur fracture as result of July 1963 left thigh injury, he does not have the medical expertise to diagnose such a disability. Providing a medical diagnosis of a fracture falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007). There is no evidence showing that the Veteran has medical expertise or training and he is not competent to provide any medical diagnoses or medical opinions. There is no competent medical evidence of a left femur fracture, to include residuals thereof, during service or at any point during the pendency of the appeal. The Veteran has not presented valid claims of service connection for a left femur fracture. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board also observes that while further analysis is not necessary at this time, the preponderance of the evidence is against a finding that any current left femur disorder is related to his left thigh contusion injury in service. In this regard, the service treatment records do not note finding of left femur fracture and no residual chronic pathology (beyond what is already compensated by left knee disability) was been noted in service or reported during the lengthy period of time since service, which is evidence weighing against a nexus between a current disability and service. In addition, in the July 2018 VA examination report, the VA examiner concluded that it was less likely than not that the Veteran had a current left femur fracture as result of his period of service. This medical opinion was based on a review of the claims folder and supported by a rationale statement. Pertinently, there is no medical opinion to the contrary. While the Veteran may believe he has a current left femur disability that is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner’s medical opinion. In sum, the claim for service connection for a left femur fracture must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a left ankle disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray 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.