Citation Nr: 21004490 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 20-21 093 DATE: January 27, 2021 ORDER Entitlement to service connection for a bilateral ankle condition is denied. FINDINGS OF FACT 1. The weight of the medical and other evidence of record is against a finding that the Veteran has a bilateral ankle condition, that had its onset in-service or is otherwise related to a disease or injury during military service. 2. A bilateral ankle condition did not manifest to a compensable degree within one year of separation from active duty service and is not otherwise related to service. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for a bilateral ankle condition have not been met. 38 U.S.C. §§ 101, 106, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.71a, diagnostic code (DC) 5271(2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1965 to June 1967, with additional periods of service in the Army Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In his April 2020 VA Form 9, the Board notes that the Veteran limited his appeal to a single issue from his March 2017 Notice of Disagreement and February 2020 Statement of the Case. Moreover, the Veteran stated, “I am appealing reimbursement of medical expenses incurred for my wife who died of cancer May 3, 2017” under “[I]ssues I want to appeal to the Board.” See April 2020 VA Form 9, Substantive Appeal. The Veteran was informed in a September 2018 VA notification letter that his claim for pension benefits was denied. Included in the September 2018 decision notification was the statement, “You have one year from the date of this letter to appeal the decision.” Also included in the September 2018 materials was VA Form 4107, “Your Rights to Appeal Our Decision,” with information on how to perfect the appeal process, and VA Form 21-0516-1, Improved Pension Eligibility Verification Report, with information on how to submit an additional application for pension benefits. See September 2018 VA notification letter. A review of the record indicates that no further action was taken regarding the September 2018 pension claim denial, either by way of disagreement or additional evidence. See generally 38 C.F.R. §§ 3.156(b), 19.52. As a result, the September 2018 pension determination is considered a final decision at this time, and the Board cannot consider an appeal for entitlement to pension benefits as a part of the appeal for entitlement to service connection for an ankle condition. In his April 2020 VA Form 9, the Veteran indicated, “I do not want an optional Board hearing” and waived his right to a hearing before a Veterans Law Judge. See VA Form 9, Substantive Appeal. The matter was remanded in July 2020 for further development and is now before the Board for further consideration. This case has been advanced on the docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). 1. Entitlement to service connection for a bilateral ankle condition The Veteran contends that his “Charcot Foot” condition is the result of military service, “[W]hich I feel was aggravated over a period of time due to my 35 plus Airborne jumps. Studies indicate approximately 35% of Airborne troop injuries occur to the ankles.” See April 2020 VA Form 9, Substantive Appeal. Service treatment records for the Veteran do not reflect any complaints, diagnoses, or treatment for ankle conditions, including his May 1967 separation physical and December 1970 Reserves promotion physical. See May 1967 and December 1970 Reports of Medical Examination and Medical History. Post-service treatment records from private providers reveal that the Veteran was diagnosed with diabetes mellitus, type 2, in 1993. The diabetic condition was “complicated by neuropathy resulting with a Charcot-Frick deformity on the left (foot),” leading the examining surgeon to conclude, “[S]ome type of surgical repair might be required for (Veteran’s) Charcot foot in the future.” See April 2004 thoracic and cardiovascular consult report. Service Connection A Veteran is entitled to compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. 38 U.S.C. §§ 1110, 1131; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). The Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the Veteran is competent to provide a diagnosis of an observable condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of cervical spine conditions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Factual Background The Veteran is currently service connected for non-compensable bilateral hearing loss. See January 2017 rating decision code sheet. When he was evaluated at his separation from active duty and 3 years later when he was promoted in the Reserves, the Veteran’s clinical evaluations were “Normal” for both feet and lower extremities. See May 1967 and December 1970 Reports of Medical Examination. At each examination, the Veteran reported his “present health” to be “Excellent.” On his self-evaluations, the Veteran reported no arthritis or rheumatism, no bone, joint, or other deformities, no lameness, and no foot trouble.” See May 1967 and December 1970 Reports of Medical History. Attempts were made by VA to obtain private treatment records, but received notice that private treatment records for the years 2004 to 2005 were “purged” by the Veteran’s treatment provider and are not a part of the record. See April 2020 email correspondence regarding Foot and Ankle Center – Burkland Medical Center. Other providers and facilities identified by the Veteran, including “Defense Mapping Agency / National Geospatial Intelligence Agency” and “Office of Personnel Management,” are also not a part of the record. See August 2020 VA Form 21-4142a, General Release for Medical Provider Information. Further, a records request from the Social Security Administration was returned, “We cannot send the medical records you requested. Such records do not exist; further efforts to obtain them would be futile.” See September 2020 Social Security Administration National Records Center reply. Treatment for the Veteran includes, “[B]union deformity left foot...ulcer left foot.” A physical examination noted, “Skin turgor & texture is normal bilaterally. There is digital hair growth bilaterally. Skin temperature is within normal limits bilaterally. There is clinical mycosis of the 1st toenails on both feet and the nails appear discolored, hypertrophic and with subungual debris. There is a partial thickness superficial ulcer with no evidence of infection...hyperkeratotic border, fibrinolytic, rid and moist...2 x 2 mm. There are porokeratotic lesions which are at the following locations: on toe 1 of the left foot.” See May and June 2015 Family Foot and Ankle Associates notes. A musculoskeletal examination documented, “A pes planovalgus foot type was noted on both feet. There is a hallux abducto valgus deformity of both feet. Pain was present on palpation of the medial aspect of the 1st metatarsal head left foot.” A neurological examination recorded, “Diminished protective sensation detected by inability to feel 5.07 monofilament in all locations tested on the plantar aspect of the feet.” A vascular examination concluded, “Dorsalis pedis pulse is +0/4 bilateral. Posterior tibial pulse is +1/4 bilateral.” Finally, during a gait examination, the Veteran was observed to display, “[M]arked subtalar joint pronation of both feet with collapse of the longitudinal arch.” See May and June 2015 Family Foot and Ankle Associates notes. The assessment and treatment plan included, “Type II diabetes mellitus with peripheral neuropathy. Hallux abducto valgus with bunion deformity bilateral. Ulcer left forefoot. [T]horough discussion with patient regarding the pedal manifestations of diabetes mellitus. The effects of diabetes on their skin, circulation and nerves was discussed. [A]dvised on proper maintenance of their feet and the selection of proper footwear. [I]nstructed to check their feet at least once daily. [T]horough discussion with patient regarding the pedal manifestations of peripheral neuropathy. The effects peripheral neuropathy can have on their extremities and the increased risk for infection, hospitalization, and possible amputation if not taken seriously was discussed.” See May and June 2015 Family Foot and Ankle Associates notes. The Veteran continued treatment for “non-healing ulcer at his left foot.” See July 2015 Center for Vascular Medicine note. Shortly thereafter, the Veteran was examined for “gangrenous toes left foot.” Further treatment included, “[A]rteriogram with stent placement in the superficial femoral popliteal arteries...continued to have symptoms...underwent above-knee popliteal to peroneal bypass with a transmetatarsal amputation...the amputation site appeared to be necrotic with foul smelling...recommended (Veteran) undergo a left below-knee amputation.” Days later, the Veteran was noted to have “green to black, liquefied, necrotic tissue” at the site of the forefoot amputation. See October 2015 Center for Vascular Medicine Operative Reports. Hospital records for the Veteran note, “[D]iabetic male with severe peripheral vascular disease. He had amputation of toes 4 and 5 of the left foot. Unfortunately, patient was not healing well. The patient ended up having osteomyelitis subsequently and the patient had bypass of the lower extremity on the left side and now the patient is here for a transmetatarsal amputation.” See October 2015 Washington Adventist Hospital Operative Report. Further treatment for the Veteran included, “Gangrene of right foot…First ray amputation…Malodorous left transmetatarsal amputation stump…Left below-knee amputation.” See November 2015 Washington Adventist Hospital Operative and Discharge Reports. An X-ray revealed “no fracture or dislocation…joint spaces are maintained…no bony erosions or abnormal soft tissue calcifications.” See November 2015 Washington Adventist Hospital Diagnostic Radiology Report. A rehabilitation center note listed the Veteran’s primary diagnosis as “Peripheral Vascular Disease, Unspecified.” Secondary diagnoses were listed as, “Acquired absence of left leg below knee, acquired absence of right great toe, encounter for surgical aftercare following surgery on the circulatory system, type 2 diabetes mellitus with diabetic peripheral angiopathy with gangrene, anemia in chronic kidney disease, muscle wasting and atrophy, not elsewhere classified, unspecified site, muscle weakness (generalized), and difficulty in walking, not elsewhere classified. See December 2015 Arcola Health and Rehabilitation Center Admission Record. Additional imaging for the Veteran recorded, “Status post amputation right great toe, no evidence of osteomyelitis and findings consistent with pes planus deformity.” See December 2015 VA Podiatry Outpatient Consult. A cardiology consult documented the Veteran’s medical history, “[H]ad left below-knee amputation and right forefoot amputation, both secondary to diabetic foot with infection.” See April 2016 Washington Adventist Hospital Cardiology Consult. A physical therapy evaluation noted that the musculoskeletal strength of the Veteran’s left hip, left knee, and left ankle was “impaired.” See April 2016 Fox Chase Rehabilitation Physical Therapy Initial Evaluation Report. A private examination pursuant to a VA application for pension benefits listed the Veteran’s primary diagnoses as, “Uncontrolled Diabetes, Bilateral leg amputation, Left hip fracture.” See May 2016 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. Additional physical therapy observed, “Strength at hips, quads, ankle dorsi and plantar flexion normal” for the Veteran. See August 2016 VA Outpatient Rehabilitation Medicine Note. Occupational therapy for the Veteran documented, “Response to treatment – Good.” See March 2017 VA Driver’s Rehabilitation Progress Note. The Veteran experienced “swelling” in his right ankle and described, “[I]mprovement…since he has been using the lymphedema pump.” See August and December 2019 VA Podiatry Outpatient Notes. Additional post-surgery treatment notes recorded, “(Veteran) rates foot / ankle pain 0 / 10 on pain scale…no other pedal complaints” and, “Denies pain…denies any other pedal complaints at this time.” See October 2017 and August and December 2019 VA Podiatry Outpatient Notes. In January 2020, the Veteran participated in a VA examination for ankle conditions. Initially, the examiner noted, “The Veteran does not have a current diagnosis associated with any claimed condition…The Veteran has no orthopedic condition of his ankles…His left ankle is surgically absent status post below the knee amputation since 2013.” The Veteran denied pain in his ankle and reported no pain in his ankle during examination, palpation, and weight-bearing. There was no objective evidence of pain during non-weight bearing testing. See January 2020 VA examination report. At the VA examination, the Veteran denied flare-ups and functional loss and impact of an ankle condition. Range of motion, including repetitive use, active, and passive testing, resulted in 10 degrees of dorsiflexion and plantar flexion, while the examiner noted, “The Veteran had a right foot transmetatarsal amputation secondary to diabetes contributing to loss of range of motion and ankle.” Testing was not available on the left ankle of the Veteran due to a previous below-knee amputation. Muscle strength was “Normal.” No atrophy, ankylosis, instability, achilles tendonitis, shin splints, stress fractures, tendon ruptures, malunion of the calcaneus or talus, or talectomy was observed. The examiner noted, “No right ankle condition,” without noting further contributing factors or pertinent physical findings. See January 2020 VA examination report. The January 2020 examiner concluded, “The 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 stated rationale included, “The Veteran has no currently diagnosed condition of his ankles. Therefore [sic] no opinion is rendered at this time…The Veteran’s peripheral vascular disease is directly related to his diabetes and history of smoking. The Veteran developed several occlusions of his bilateral lower extremities complicated by diabetes and infection leading to amputations...The Veteran’s lower extremity conditions are related to his peripheral vascular disease and diabetes.” See January 2020 VA examination report. Analysis Medical records for the Veteran do not reflect complaints, treatment, or a diagnosis related to an ankle condition. Aside from “swelling” in the right ankle, noted during rehabilitation and physical therapy post-amputation surgeries, the Veteran has never been diagnosed with an ankle condition. The Veteran denied “pain” in his ankles during treatment and examination. See October 2017, August and December 2019 VA Podiatry Outpatient Notes, and January 2020 VA examination report. Therefore, the first element required for service connection has never been established. The second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. While the Veteran asserts that his condition, “[W]as aggravated over a period of time due to my 35 plus Airborne jumps,” his service records likewise reflect no complaints, treatment, or a diagnosis related to an ankle condition. See April 2020 VA Form 9, Substantive Appeal and service treatment records. Moreover, separation and Reserve duty examinations reflect “Normal” clinical evaluations and “No” reported ankle conditions, including arthritis, rheumatism, bone, joint, other deformity, lameness, and foot trouble. See May 1967 and December 1970 Reports of Medical Examination and Medical History. Although the credibility of lay evidence may not be refuted solely by the absence of corroborating medical evidence, it is a factor. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). Other 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). Contemporaneous medical evidence has greater probative value than the Veteran’s reports of history. See Curry v. Brown, 7 Vet. App. 59 (1994). The Veteran stated in his April 2020 VA Form 9, “Studies indicate approximately 35% of Airborne troop injuries occur to the ankles.” Unfortunately, the Veteran’s statements lack internal consistency and consistency with other statements and evidence, including treatment and examination. The Veteran asserts that his “Charcot Foot…was aggravated over a period of time due to my 35 plus Airborne jumps.” See April 2020 VA Form 9, Substantive Appeal. The Veteran did not develop a “Charcot-Frick deformity” until after he was diagnosed with diabetes in 1993 and developed peripheral neuropathy in his lower extremities. See April 2004 thoracic and cardiovascular consult report. Diabetes, peripheral neuropathy, nor Charcot-Frick deformity were conditions that existed prior to or during the Veteran’s military service. See October 1964 and June 1965 Reports of Medical Examination and Medical History. Therefore, secondary service connection based on aggravation of a pre-existing condition would not apply to the Veteran’s claim for service connection. See 38 C.F.R. § 3.310. Turning next to the final element of service connection, a nexus between the current diagnosed condition and an in-service event, the Veteran has not provided lay evidence, either through buddy or personal statements, regarding the history of his ankle condition. Inasmuch as the Veteran asserts that his ankle condition is the result of military service, he is not competent to provide evidence of complex medical questions, including etiology and pathology. Therefore, evidence of service connection lies in the January 2020 VA examination. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).   VA’s Duties to Notify and Assist The U.S. Code and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). In this case, the Veteran has not raised any issues with VA’s duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In summary, a preponderance of the evidence is against a finding that the Veteran has a current diagnosis to satisfy the first element of service connection. Further, the greater weight of the evidence is against a finding of elements two and three, an in-service event or aggravation and a nexus to military service. The Veteran alleges both aggravation and injury to his ankles while in-service. See April 2020 VA Form 9, Substantive Appeal. There is no evidence in the record of either occurrence, which was adequately addressed in the VA examination. The Veteran reported no pain or pedal complaints at his VA examination or during VA podiatry treatment. See January 2020 VA examination report, August and December 2019, and October 2017 VA Podiatry Outpatient Notes. Beyond observed symptoms of swelling, the Veteran is not competent to provide a diagnosis that requires the application of medical expertise to the facts presented. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The January 2020 opinion from the VA examiner is the most probative evidence of record on the question of diagnosis and nexus to service. The opinion was based on an extensive review of all of the evidence, including statements from the Veteran, was supported by a detailed rationale, provided data to support any conclusions, and provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The January 2020 VA examiner opinion is consistent with the evidence of record, including the Veteran’s private treatment. The VA examiner opinion provides compelling evidence against the Veteran’s claim for service connection. The Veteran contends that his claimed disability exists and is related to his active service. This opinion is of no probative value, because he lacks the medical expertise needed to diagnose an ankle condition or to attribute it to active military service. There is no competent, credible evidence to refute the January 2020 VA examiner opinion. The weight of the probative evidence of record is against a finding that the Veteran’s ankle condition is causally or etiologically related to any disease, injury, or incident, in service. Consequently, service connection is not warranted. Finally, a clear preponderance of the evidence of record indicates the Veteran does not meet the criteria under 38 C.F.R. § 4.71a, DC 5271, for entitlement to service connection for an ankle condition. Therefore, his claim must be denied. In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine. The rule does not apply when the Board finds that a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2018); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Small, Attorney Advisor 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.