Citation Nr: 21004710 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-35 631 DATE: January 27, 2021 ORDER Service connection for a left ankle disability is denied. FINDING OF FACT The Veteran’s left ankle disability developed many years after his separation from service and is not related to service. CONCLUSION OF LAW The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to March 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In August 2019, the Board remanded the current issue on appeal for additional development. As discussed further below, the Board finds that there has been substantial compliance with the prior remand instructions and that no further action is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board also notes that additional VA medical treatment records were added to the record after the August 2020 Supplemental Statements of the Case which were not previously considered by the agency of original jurisdiction (AOJ) and for which the Veteran did not submit a waiver of initial consideration by the AOJ. However, as these records are duplicative or pertain to other conditions not currently before the Board, the Board finds no prejudice to the Veteran in considering any new evidence not previously considered by the AOJ. See 38 C.F.R. § 20.1304(c). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for a recognized chronic disease can be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Service connection may also be established for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent 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); Jandreau, 492 F.3d at 1376-77. The Veteran contends that he injured his left ankle during a tripping accident in bootcamp in which he injured his left testicle. He alternatively contends that his left ankle condition is due to an altered gait as a result of his left testicle pain due to the service-connected varicocele. Service treatment records are absent complaints of or treatment for left ankle pain. The Veteran reported a history of left arm and left leg fracture due to a fall in 1971 at his January 1975 enlistment examination. February 1975 treatment notes document treatment for a possible hernia and left hydrocele/varicocele due to an injury while doing pushups. Treatment notes document that the Veteran had a long history of varicocele that was symptomatic while in high school sports and in boot camp with activity. Service treatment records are absent complaints of a fall or left ankle pain. The Veteran was administratively separated from service due to his symptomatic, reducible left varicocele and refusal to undergo corrective surgery. Post-service treatment records document that the Veteran had a “significant history of drinking” and multiple falls due to alcohol intoxication. VA medical records as early as January 2006 also reflect that the Veteran received treatment for a gait disorder, difficulty curling his toes, decreased ambulatory function of the left lower extremity due to neuropathy, and cerebral ataxia due to alcohol abuse. At a May 2020 VA PTSD examination, the Veteran endorsed almost daily consumption of alcohol, except during multiple inpatient rehabilitation treatment programs, most of his adult life. Pursuant to the August 2019 remand, the Veteran was afforded a VA ankle examination in August 2020. The Veteran endorsed an abnormal gait, left ankle pain causing functional loss of activities of daily living, and impaired mobility requiring a walker. The examiner diagnosed the Veteran with left ankle pain. The examiner opined that the Veteran’s left ankle disability was less likely than not related to service. She explained that although the Veteran has left ankle pain that causes a functional impairment, he also has multiple conditions that could result in the decreased range of motion that is impairing his functional capabilities. She reported that the Veteran has cerebellar ataxia, a neurological condition along with neuropathy that impairs his gait, balance, and ability to walk. The examiner noted that the Veteran’s post service treatment records show that he has moderate weakness of right quadriceps and hamstrings, mild weakness of ankle dorsiflexors, worse on the right, and an unsteady gait. The Veteran’s ataxia also resulted in a positive Romberg test, required use of a walker, and the need for a left ankle brace for stability for the left foot drop. The examiner noted that neuropathic pain and from the left plantar calcaneal enthesopathy also impaired his functional ability to perform activities of daily living, walk without pain and function normally. The examiner concluded that the Veteran’s in-service 1975 tripping injury did not cause his inability to walk and function to a normal degree. The examiner reasoned that the Veteran’s 2019 left ankle x-ray examination showed no acute bony abnormality, he had a heel spur that could contribute to pain, and that his neuropathy could impair sensation and make the pain difficult to determine exact location in the foot. The examiner also opined that the Veteran’s left ankle pain was not at least as likely caused or aggravated by his service-connected left testicle varicocele, particularly due to an altered gait as a result of his left testicle pain. The examiner explained that the Veteran’s pain is mainly localized to the testicle without radiating pain, as documented in a May 2018 physical examination. The examiner noted that although walking is an aggravating factor, it would not change the structure of gait in the ankle. The examiner reasoned that the Veteran has a diagnosis of cerebellar ataxia which causes altered gait and imbalance, as demonstrated by his wide-based gait with a positive Romberg test. The examiner also noted that the Veteran is treated with gabapentin for a left foot drop and neuropathy, which impair the gait. The examiner also explained that the Veteran had a plantar calcaneal enthesophyte and that this deformity also causes pain and difficulty with ambulation. Each of these were the more likely cause of the left ankle problems. After review of the record, the Board finds that service connection for a left ankle disability is not warranted. Turning to the Veteran’s statements, the Board acknowledges the Veteran’s belief that his current left ankle disability is related to service or his service-connected left varicocele (claimed as crushed left testicle). However, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion on the cause of his left ankle disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of left ankle disabilities are matters not capable of lay observation, and require medical expertise to determine. The Board also notes that service treatment records attribute the Veteran’s left testicle injury in service to his reports of injury while performing pushups during bootcamp. Notably, service treatment records are absent reports of tripping or a fall when describing the source of his injury and are absent for complaints of left ankle pain, either associated with the injury or at any other time during his service. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of his left ankle disability is not competent medical evidence. In addressing the competent evidence of record, the Board finds that the negative August 2020 VA medical opinion, provided after reviewing the entirety of the claims file, is highly probative as it reflects consideration of all relevant facts. The examiner provided a detailed rationale for the conclusion reached. Her conclusion is supported by the medical evidence of record, which includes service treatment records showing no mention of left ankle complaints or reports of a tripping incident at the time of his left testicle injury in service; the Veteran’s post-service treatment records showing a diagnosis of left ankle pain and decreased sensation and decreased ambulatory function of the left leg due to cerebral ataxia due to severe alcohol abuse; and findings that the Veteran has cerebellar ataxia, a neurological condition along with neuropathy that impairs his gait, balance, and ability to walk, and that his ataxia also resulted in a positive Romberg test, required use of a walker, and need for a left ankle brace for stability for the left foot drop. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Significantly, there is no competent medical opinion of record to the contrary. In sum, the preponderance of the probative evidence indicates that a left ankle disability was not shown in service or for many years thereafter and the current left ankle disability is not related to service or a service-connected disability. Accordingly, the preponderance of the evidence is against the claim, and service connection is denied. The Board is grateful to the Veteran for his honorable service, and regrets that a more favorable outcome could not be reached. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.