Citation Nr: 21002356 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-36 613 DATE: January 13, 2021 ORDER Entitlement to service connection for a left leg condition is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s current left ankle disability was caused by or incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left leg condition have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1965 to June 1967. This case comes on appeal of a June 2016 rating decision. This matter was previously before the Board in February 2019 and August 2020. In its most recent decision, the Board remanded the claim to obtain an additional medical opinion. 1. Entitlement to service connection for a left leg condition 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, 3.304. Service connection generally 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. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). The Veteran contends that he has a current left leg disability that was caused by an in-service injury. Current medical records, to include an October 2019 VA examination, document degenerative arthritis of the left ankle. Therefore, the first element of service connection has been satisfied. At issue is whether the Veteran’s current disability was caused by or incurred in service. In February 2016 written testimony to VA, the Veteran stated that he hurt his leg while jumping out of the back of a truck during service in Korea in 1966. He reported that he pulled his muscles and that his leg was in a cast for about eight weeks. He also reported that he had been treated for his leg since service, but that the treating doctors were deceased and that there were no medical records. Service treatment records show that, in October 1966, the Veteran was seen as he was worried about an old left ankle sprain. There is no indication of any treatment provided at that time, nor is there any evidence of followup for a left ankle condition. In the Veteran’s June 1967 separation examination, the examiner observed the Veteran’s feet and lower extremities as being normal. In a report of medical history at that time, the Veteran checked “No” to the questions asking whether he had any history of bone, joint, or other deformity, a history of broken bones, lameness, or foot trouble. On the second page of the report, the Veteran also checked “No” when asked (1) if ever had any illness or injury other than those already noted on the form, (2) whether he consulted or had been treated by clinics, physicians, healers or other practitioners within the past 5 years, and (3) whether he ever treated himself for any illnesses other than minor colds. There were no defects noted on examination. In August 2016, the Veteran sought treatment at Beckley VA Medical Center. At that time, the Veteran stated that his ankle was injured in the military when he sprained it jumping off a tank. The Veteran reported that he had some ligament damage and had to be placed in a cast. He stated that the condition improved, but that he started having pain over the prior 30 years that had gradually gotten worse. In the assessment section of the record, the Veteran’s physician stated, “feel the ankle pain is at least as likely as not related to his service related injury.” Notably, the physician provided no explanation for this conclusion and it does not appear this opinion included any review of the Veteran’s service treatment records. In September 2016, the Veteran submitted an additional statement to clarify his history of injury and symptoms. He first noted that he had told his doctor that he had been having pain in his left ankle for 50 years, but that it had been typed in the record as 30 years. He also corrected the doctor’s report that the Veteran had been injured jumping off a tank, clarifying that it was in fact a truck. The Veteran further testified that he jumped from the truck in gear weighing approximately 60 pounds and that he had experienced trouble with his left leg and ankle since leaving service. According to the Veteran’s statement, at the time of the injury, doctors put several casts on his leg and said that his muscles and ligaments were torn and would not heal properly. In May 2019, the Veteran once again sought treatment for what he described as an old ankle sprain that happened 50 years prior, with a chief complaint of chronic left ankle pain. At that time, the Veteran once again described the incident jumping from a truck and reported that he had experienced immediate pain and swelling to the left ankle which required casting for eight weeks. Since that injury, the Veteran reported that he had experienced weakness and periodic exacerbations of pain to the left ankle, with two major exacerbations in 1970 and 1972, each requiring bracing. Pursuant to the Board’s February 2019 remand, in October 2019, the Veteran underwent VA examinations for left leg and ankle conditions. As was noted in the Board’s August 2020 decision, at this time, the examiner diagnosed degenerative arthritis of the left ankle but opined that it was less likely than not that this was caused by or incurred in service. In the knee and lower leg conditions portion of the examination, the examiner found no evidence of any other current disability and the Veteran did not claim any other disability existed. The examiner did not provide any rationale for the opinion regarding the Veteran’s left ankle, therefore the Board remanded the claim again to obtain an adequate medical opinion. In September 2020, an examiner reviewed the Veteran’s claims file and opined that it was less likely than not that the Veteran’s left ankle condition was caused by the claimed in-service injury. In doing so, the examiner noted the Veteran’s separation examination, which was negative for any complaints or findings related to the Veteran’s left ankle or leg. According to the examiner, it was highly unlikely that the type of injury described by the Veteran would have gone unmentioned and that there would be no evidence of care or a related profile in the Veteran’s records. The examiner acknowledged that if the left ankle injury as described by the Veteran, or chronicity of care, could be confirmed with objective evidence, such would warrant review of the opinion. However, the absence of such evidence suggested that the nexus for traumatic arthritis developed much later. In other words, the examiner acknowledged the Veteran’s description of his in-service injury and treatment but found it at odds with the evidence of record. Specifically, the examiner found it unlikely that such an injury would go unrecorded, without accompanying treatment and profile records, and that it would not be mentioned at the time of separation less than one year later. Based on the above, the preponderance of the evidence is against a finding that the Veteran’s left ankle disability was caused by or incurred in service. The Board acknowledges that the Veteran is competent to describe his in-service injury and subsequent symptoms. However, as a layperson, the Veteran is not competent to ascribe a medical nexus between his current disability and the in-service injury. Moreover, and crucially, the Veteran’s description of his in-service injury and treatment is not supported by the record, and the medical discussion of the September 2020 examiner cuts against the credibility of the statements the Veteran has made in describing the severity of his in-service injury. Indeed, the examiner has stated how, from a medical perspective, the injury as described would not have gone unmentioned in service records, or upon separation by either the Veteran’s treating physicians or the Veteran himself. The Court of Appeals for Veterans Claims (the Court) has recently explained how the Board may benefit form a medical opinion in making credibility determinations. See Miller v Wilkie, 32 Vet. App. 249 (2020). In Miller, the Court noted that an examiner “can better inform the Board’s understanding of the medical feasibility of the veteran’s lay statements,” and “[i]f an examiner explains that the veteran’s assertions are generally inconsistent with medical knowledge or implausible, the Board can weigh that when addressing the veteran’s credibility.” In this case, there is no credible evidence to support the Veteran’s claim that he experienced permanent ligament and muscle damage to his left leg or ankle, nor is there evidence of his being in a cast for eight weeks. The Board places great probative value on the September 2020 VA examiner’s expert opinion that such an injury would have resulted in recorded treatment, a physical profile, and notations at the time of separation. In addition, the Board finds the statements the Veteran made at the time of his separation (specifically denying a history of problems and treatment), more probative than his report decades later of having torn muscles and ligaments during service requiring casting for 8 weeks, in relation to his claim for VA benefits. The Board accordingly finds the Veteran’s descriptions of the severity of his in-service injury not credible, and in turn, his descriptions of ongoing symptoms since service not credible. To the extent that the Veteran may have fallen from a truck and hurt his ankle in 1966, the probative medical evidence as discussed above indicates that the in-service event is not related to his current disability. Aside from the Veteran’s own lay assertions regarding the etiology of his current disability, the only other evidence of record in favor of the Veteran’s claim is the August 2016 treatment record discussed above in which the treating physician stated that the Veteran’s left ankle pain was at least as likely as not related to his claimed in-service injury. The Board places less probative value on this statement, first because it was not accompanied by any medical rationale, and second, because it appears to have been based solely on the Veteran’s description of his in-service injury and not on any review of the Veteran’s service treatment records. The Board acknowledges the arguments made in a December 2020 brief from the Veteran’s appointed representative. There, the Veteran’s representative contended that the September 2020 medical opinion was inadequate. The reasoning behind this contention was that the September 2020 examiner referred to the October 2019 knee and lower leg examination, in which that examiner found no disability of the left knee. According to the Veteran’s representative, this was in violation of the Board’s remand instructions that the examiner should consider pain alone to be a disability if it results in functional loss. See Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018). The brief also noted that a VA examination is inadequate if the examiner ignores the Veteran’s lay statements of an injury or event during service. Dalton v. Nicholson, 21 Veteran. App. 23 (2007). For these reasons, the representative requested that the Board remand the claim to obtain a new medical opinion. Here, the Board finds such remand is not necessary. First, the presence of a current disability is not at issue. VA has previously conceded that the Veteran has a diagnosis of degenerative arthritis of the left ankle. In referring to the October 2019 knee and lower leg examination, the examiner was only acknowledging that there was no additional disability of the left knee. Throughout the claim period, the Veteran has not alleged a left knee disability, and although his initial claim was for a “left leg” disability, he has since clarified that he was referring to his left ankle. Indeed, at the October 2019 examination, the Veteran affirmed that he did not experience any disability of the left knee. Thus, there is no evidence, whether objective or subjective, of a left knee disability, to include pain alone. Second, in this case the examiner has not ignored the Veteran’s lay statements of an injury or event during service. Rather, the examiner has considered the Veteran’s lay statements, but concluded that the events as described by the Veteran are not supported by the evidence of record. The examiner concluded that, from a medical perspective, the evidence does not support the Veteran’s contention that he experienced ligament and muscle damage and that he was in a cast for eight weeks. The examiner provided medical rationale for that conclusion—namely, that such a severe injury would be noted in medical records and on separation—and the Board finds the opinion probative as noted above. Thus, the Board has considered the Veteran’s contentions and the positive evidence of record. However, the preponderance of the evidence is against a finding that the Veteran’s current left ankle disability was caused by or incurred in service. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.