Citation Nr: 21061787 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-00 151A DATE: October 5, 2021 ORDER Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a left ankle disability is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A right ankle disability was not incurred in service and is not related to service. 2. A left ankle disability was not incurred in service and is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1987 to August 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for a right ankle disability is denied. 2. Entitlement to service connection for a left ankle disability is denied. 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, 1131; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). Certain disorders listed as "chronic" in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis, to include degenerative joint disease, is a "chronic disease" listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Analysis The Veteran claims service connection for a right and left ankle disability. As to current disability, the Veteran has degenerative joint disease of the left and right ankle disability. See June 2021 Medical Record. During the pendency of this claim, the Veteran was also diagnosed with a right ankle achilles tendon strain. Accordingly, bilateral ankle disabilities have been demonstrated. The Veteran appears to have mistakenly claimed service connection for left ankle disability. The Veteran reported at the April 2014 VA examination that he was unsure as to which ankle he injured in service, but that he was seeking service connection for the ankle he injured in service. See April 2014 Examination. The Veteran did not complain of left ankle injury or disease during active service. Service records do show he injured his right ankle injury in August 1988, the Veteran was noted to have a grade 1 inversion injury of the right ankle. Follow-up treatment shows right ankle anterior and superior tenderness of the lateral malleolus, X-ray imaging showed normal results. See August 1988 Service Record. Here, the Veteran has established injury of the right ankle in service. To the extent the service treatment records conflict with the Veteran's reports, the Board assigns more probative value to the service treatment records because they were recorded near the time period relevant to the issue of whether there is an in-service incurrence. Accordingly, left ankle injury or disease in service is not established. The Veteran's statements, mentioned above, indicate that he injured only one ankle during service. Given his statements and the supporting medical evidence, the Board finds that the Veteran did not have a left ankle injury during service. In fact, the preponderance of the evidence demonstrates that the Veteran did not have a left ankle injury, arthritis of the left ankle during service, within one year of separation from service or symptoms of arthritis continuously present since service. The criteria for service connection for left ankle arthritis are not met. Shedden, 381 F.3d at 1167. The remaining question for the Board is whether the Veteran's current right ankle arthritis began during service or is at least as likely as not related to an in-service injury, event, or disease. Importantly, the Veteran was treated for right ankle injury in March 2011. See March 2011 Medical Record. The Veteran reported he hyperextended his right foot when getting up off the couch and that he had swelling, excruciating pain, and numbness. X-rays were taken and interpreted to show normal mineralization. Degenerative joint disease was not found at that time. As to a relationship between injury in service and right ankle disability, the Veteran was most recently examined in June 2021 and the VA examiner found the Veteran's right ankle injury in service was acute and resolved. See June 2021 Examination. The examiner noted the Veteran did experience a right ankle injury in service but that his medical records were silent for right ankle disability until an intercurrent injury in 2011. The June 2021 examiner found the Veteran's complaints of right ankle pain and right foot pain since service were intermittent, separate, and unrelated to his right ankle injury in service. The examiner noted there was no evidence of left ankle injury in service. The examiner ultimately opined the Veteran's right ankle degenerative joint disease was less likely than not related to his right ankle sprain in service. The Veteran believes his ankle pain is related to an in-service injury, event, or disease. The Veteran has not presented evidence that he has had persistent symptoms since service or that a medical professional has told him that his current right ankle disability is related to any incident of service. Moreover, whether a remote lateral malleolus ankle sprain may result in a tendon sprain or degenerative joint disease twenty-five years later requires knowledge of medical principles that is not readily observable by the lay person. There is no basis in lay observable symptoms that would allow the Veteran to offer a competent lay opinion on the existence of a relationship. 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 opinions. The Board finds that, while the Veteran has a diagnosis of right ankle degenerative joint disease, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Board finds the there was no in-service incurrence or manifestations of a chronic ankle disability, including degenerative joint disease. This is shown by X-ray imaging of the right ankle in service showing normal results. Moreover, there is no evidence of a left ankle injury during active service. Finally, the VA examiner noted the Veteran's ankle pain in 2011 was due to an intercurrent injury and is the first credible indication of post-service ankle disability. This is years after the period of service. Additionally, the VA examiners' opinions are highly probative evidence against the claim as they considered the Veteran's history and provide an opinion based on sound reasoning. While the Veteran believes his left and right ankle disabilities are related to service, the Board reiterates that the preponderance of the evidence weighs against findings that a relationship between the Veteran's current disability and an in-service injury, event, or disease. Accordingly, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The criteria for service connection are not met and the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. In the August 2020 remand, the Board directed that the Veteran be provided a VA examination to determine the nature and etiology of his sleep apnea. The VA examiner was specifically directed to consider and discuss a buddy statement from the Veteran's roommate in service, J.K., submitted in July 2019 was not considered by a previous examiner. See July 2019 Statement. J.K. stated that he served with the Veteran from 1987 to 1990, and that the Veteran acquired sleep apnea after shoulder surgery. An additional examination was obtained in June 2021. See June 2021 Examination. As to incurrence of OSA during active duty, the examiner noted the July 2019 statement as directed but did not discuss whether this evidence constituted lay evidence of OSA in service. Here, the examiner noted the Veteran's reports of snoring following shoulder surgery but did discuss the July 2019 statement that the Veteran did not snore prior to this surgery and the reports of his symptoms of snoring during active service. The Board also finds the June 2021 did not examiner adequately address the question regarding secondary service connection. Specifically, the examiner notes in their discussion section for aggravation of OSA by right shoulder disability that surgical intervention is not a recognized cause of OSA, instead of analyzing whether the Veteran's OSA was increased beyond the normal progression of the disease by service-connected right shoulder disability. Remand for a new VA examination is needed. Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. The Board finds that the claim of entitlement to TDIU is inextricably intertwined with the issue of service connection for OSA because an allowance of this claim could change the outcome of the TDIU claim. As such, the Veteran's claim of TDIU is inextricably intertwined such that it should not be reviewed while the pending claim remains unresolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, adjudication of entitlement to TDIU must be held in abeyance pending further development of the Veteran's service connection for OSA. The matters are REMANDED for the following action: Forward the Veteran's claims file to an appropriate clinician for review and to provide an opinion on the nature and etiology of the Veteran's obstructive sleep apnea. In providing these opinions, the examiner must CONSIDER and DISCUSS the Veteran's lay statements regarding his disability and the buddy statement from the Veteran's roommate in service, J.K., submitted in July 2019. The examiner must DISCUSS whether the July 2019 statement constitutes evidence of OSA in service. The examiner is to answer the following question: a) Whether it is at least as likely as not (a 50 percent or greater probability) that obstructive sleep apnea is related to the Veteran's service, to include as incurred in service based on lay evidence of symptom of OSA on active duty. A complete rationale for all opinions must be provided. b) Whether it at least as likely as not (a 50 percent or greater probability) that the Veteran's obstructive sleep apnea is aggravated by (where aggravation is any increase in severity beyond the natural progress of the disability) his service-connected residuals of right shoulder dislocation, status post right anterior shoulder reconstruction. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.