Citation Nr: 21063303 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 15-03 956A DATE: October 13, 2021 ORDER Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a right ankle disability is denied. FINDING OF FACT The most probative (competent and credible) evidence is against finding that the Veteran has a left and/or right ankle disability because of an injury or a disease or an event during her military service or that was caused or is aggravated by a service-connected disability. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a left and/or right ankle disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 2006 to August 2009. In July 2017, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board, since having retired. In August 2021, the Board duly informed the Veteran that she consequently was entitled to another hearing before a different VLJ that would ultimately decide this appeal. However, the Veteran did not elect to have another hearing. These claims meanwhile were previously before the Board in July 2018 and September 2020 but were remanded back to the local Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ) for further development and consideration including to obtain and associate outstanding clinical records with the claims file so that they, too, may be considered and to obtain medical nexus opinions concerning the origins of the Veteran's left and right ankle disabilities, especially in relation to her service. There since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 1. Entitlement to service connection for a left ankle disability AND 2. Entitlement to service connection for a right ankle disability The Board finds that service connection is not warranted because the most probative evidence is against concluding there was any injury in service to either ankle, and there is no probative opinion indicating it is as likely as not the Veteran has a current ankle disability directly related to her service or secondarily related, meaning caused or aggravated by a service-connected disability. A June 2006 service treatment record (STR) reflects that the Veteran complained of "leg pain" of two weeks' duration, but the pain was described as in her right hip and right buttock, not instead in either ankle, so this report is unremarkable for ankle pain. Moreover, a September 2006 STR similarly notes bilateral knee pain but again is unremarkable for any complaints referable to either ankle. If she also had ankle complaints, it stands to reason that they, too, would be documented in her STRs, especially since she had complaints in relation to her lower extremities. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). An October 2007 memorandum for Fitness for Duty/Deployment notes a diagnosis of back pain but is unremarkable for any complaints regarding either ankle. The Veteran's June 2009 Report of Medical History for separation purposes reflects that she reported having had foot trouble; however, she clarified that it was a "right foot painful bunion" in 2006 or 2007 or since basic training. Again, then, if she also had right and/or left ankle complaints, it seems only reasonable that she would have reported them as well, especially as she reported the bunion and other things of note such as wearing glasses, left arm complaints, back complaints, left knee complaints, and heart pain. Her military service ended in August 2009. Post service, a November 2009 report of a VA General Medical Examination indicates the Veteran had normal range of motion of her ankle joints. The report is unremarkable for any complaints referable to her ankles, be that of pain or whatever other symptom now alleged. If she had ankle pain, it stands to reason that she would have reported it and for it to be noted in the report, especially as she complained of hip and knee pain. The earliest complaint referencing the ankle is not until more than a year after the Veteran's separation from service and, even then, attributes the pain she was experiencing to an intervening or "intercurrent" incident since her service. A March 2011 VA clinical record shows the Veteran sought treatment for right ankle pain after tripping down some stairs two days earlier and twisting this ankle. Upon examination, she had mild swelling around both ankles with a bruise on the lateral portion of her ankle. A September 2011 VA clinical record contains the Veteran's statement that she had experienced right foot pain since falling earlier that year. On examination, the ankle was not swollen, and she had normal range of motion. The assessment was right ankle "pain". Notably, she stated "I am having trouble with my right ankle. It is the one that got hurt when I fell earlier this year", and she did not report chronic pain preceding that since her service or any additional injury during her service. An October/November 2019 Disability Benefits Questionnaire (DBQ) mentions the Veteran's assertion that she has had bilateral ankle pain since 2009 because of physical training, meaning since her time in service. The diagnosis was bilateral ankle strain. However, the examiner found it less likely than not the Veteran has an ankle disability owing to her service because there were no medical records noting any diagnosis or treatment in service. A March 2021 addendum opinion reiterates that it is less likely than not the Veteran has an ankle disability because of her service partly because the initial complaint of pain was after an intervening fall down some steps in 2011, with no prior complaint of a left ankle injury, and since the evidence does not support continuous or ongoing medical treatment or aggravation of acute or chronic right and left ankle conditions from the time of service. The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion attributing any current ankle disability to her military service. Simply put, this determination is beyond her lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Moreover, the Board finds that any contention of chronic or continuous symptoms such as pain in service, or since, lacks credibility based on the record as a whole, for the reasons and bases discussed. She sought treatment in service on numerous occasions for a variety of things such as hip and knee pain (June 2006), shin splints/physical therapy (August 2006), knee pain (August 2006), upper respiratory infection (September 2006), right-sided pain after a fall (August 2007), physical therapy for her back (September 2007), low back pain after the earlier fall (October 2007), and shortness of breath and pain with inhalation (September 2008). Thus, the Board finds that, if she also had ankle symptoms in service, including since her basic training, it reasonably would have been noted as she sought treatment when she had other complaints or ailments. Any clinical opinion based on a less than credible history lacks probative value. See Reonal v. Brown, 5 Vet. App. 458 (1993) (An opinion is only as good and credible as the history on which it was based). The mere fact that an examiner bases an opinion on a history that has been provided by the Veteran, rather than, as an example, additionally on independent review of the claims file, does not automatically invalidate the opinion because the Veteran could be providing a credible history. However, if it shown the history is not credible or that evidence, if considered (but that was not), would affect the examiner's conclusion, then the basis of the opinion is undermined, and it consequently has less probative value or weight. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). Here, to reiterate, the earliest probative evidence of any ankle disability is more than a year after conclusion of the Veteran's service and, notably, only after she tripped and fell down some steps, and that diagnosis was only for her right ankle. The lapse of time between service separation and the earliest documentation of the now claimed disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In any event, there is no competent and credible evidence of a right and/or left ankle disability owing to the Veteran's service, either directly or as secondary to (caused or aggravated by) a service-connected disability. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. For these reasons and bases, service connection is not warranted. As the preponderance of the evidence is against these claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.