Citation Nr: 21064932 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 15-34 642 DATE: October 22, 2021 ORDER Entitlement to service connection for left ankle disability, to include as secondary to right ankle disability, is denied. FINDING OF FACT The Veteran's left ankle disorder did not onset in service, nor is it caused or aggravated by service or his service-connected right ankle disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a left ankle disorder, diagnosed as a left ankle sprain, to include as due to a service-connected right ankle disability, have not been met. 38 U.S.C. §§ 1110, 5103(a) 5103A; 38 C.F.R. §§ 3.303, 3.304, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1992 to September 1992, and from December 1993 to February 1995. The latter period is considered dishonorable for VA purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in September 2018 and April 2021, when it remanded it for further development. The Board is now satisfied there was substantial compliance with these Remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, additional VA examinations were conducted, and adequate opinions are now of record. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. The Board notes that the Veteran was previously represented by an attorney; however, in March 2021, the attorney submitted a motion to withdraw as representative. The attorney cited factors that made the continuation of representation impossible, impractical, or unethical. Further, the motion also indicated that the Veteran was informed of the withdrawal request by mail. This is further indicated, in that the Veteran has since gained representation by a Veterans Service Organization. As such, the Board grants the attorney's motion to withdraw as the Veteran's representative. Service Connection Generally, to establish service connection for a present disability, "the veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). Entitlement to service connection for left ankle disability, to include as secondary to right ankle disability The Veteran seeks service connection for a left ankle disability, stating that it was caused by his service-connected right ankle condition. Specifically, he asserts that his left ankle disability is due to favoring his right ankle at the expense of his left ankle. In this case, after reviewing all evidence currently of record, the Board determines that service connection is not warranted. Specifically, the evidence does not show that the Veteran's left ankle disability onset in service or is aggravated/caused by his service-connected right ankle condition. First, the Veteran's service records indicate left ankle problems during service. Specifically, a September 1992 medical board finding revealed that he had left ankle stress pain secondary to pes planus with ligamentous laxity. The Veteran did not respond to conservative treatment while a recruit in Marine Corps boot camp and was separated from service "by reason of enlisted in error." Of note, the medical board found the Veteran's left ankle condition to be equal to "that which existed at the time of his enlistment". Next, the Veteran reported for an enlistment physical in July 1993, prior to his December 1993 enlistment in the U.S. Navy. At this examination, he reported a history of stress pain to both ankles. However, the examining physician notes that he sprained his right ankle during boot camp a year prior, and "denies problems since." While his period of service in the Navy is considered dishonorable for VA purposes, it does provide evidence of whether his left ankle disability was ongoing. Here, his December 1994 separation examination reveals the Veteran had right ankle issues at separation, however, there is no mention by the examining physician of the left ankle. Post-service, the first evidence of record of a left ankle disability is the Veteran's May 2014 VA examination. Here, he states that his left ankle disability was due to his right ankle condition. Thus, the medical evidence of record does not show treatment for the Veteran's left ankle disability for 22 years after separation. Likewise, the Veteran does not specifically assert that he has had left ankle problems since service. Therefore, continuity of symptomatology based on the medical evidence or the Veteran's statements has not been shown. Next, service connection may be granted when the evidence establishes a medical nexus between the Veteran's current disability and his military service. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's left ankle disability to active duty. There is no medical nexus between the Veteran's left ankle symptoms and either his active duty or his service-connected right ankle condition. The Veteran underwent a VA examination for his bilateral ankle conditions in May 2014. The examiner diagnosed him with a left ankle strain, with a reported onset of 2014. The examined opined against service connection, because the left ankle strain had no connection to his in-service treatment for ankle issues. The examiner clarified that the Veteran was seen once in-service for excessive laxity of the left ankle, however, during the VA examination there was no indication of left ankle laxity. Moreover, the Veteran's remaining treatment records did not indicate ongoing treatment or reports of left ankle symptoms. In January 2021, the Veteran underwent another VA examination for his left ankle. Here, the VA examiner opined against service connection on any basis, as there were no findings, signs or symptoms to support a left ankle diagnosis. Further, after a review of the medical evidence, the examiner concluded that past x-rays indicated a normal left ankle. The Board found this examination to be inadequate, as there is a diagnosed left ankle strain of record. The Veteran was afforded an addendum opinion dated April 2021. The examiner opined against service connection on a secondary and/or aggravated basis, stating that biomechanical studies show that favoring one limb or leg because of an injury of the other leg does not cause any damage to the normal extremity. Further, the examiner states that an injury to his right ankle would generally result in protected weight bearing on his right side, with reduction in walking velocity so that there would be decreased force transmission. This type of guarding results in a gait cycle, where the Veteran would have stance and swing phases, with one leg bearing the weight in stance and the non-weight-bearing leg swinging into position. Although this would result in an antalgic gait, this type of pattern is not shown to cause increased force to the left leg. Because there is no increased force, clarifies the examiner, such a gait does not cause injury to the left ankle. Regardless of the above, the examiner notes that treatment records indicate the Veteran has had a normal gait for the majority of the time. In May 2021, the Veteran was afforded another addendum opinion to discuss direct service connection. This examiner concluded that his left ankle condition was not related to service. In support, the examiner wrote that there are "no further entries regarding a left ankle condition before and after [the in-service 1992 medical board] proceeding... [a]ll clinical entries for an ankle condition after discharge from the service are from the right ankle. The left ankle is only mentioned" during VA examinations. Further, the examiner opined against service connection, writing that post-service treatment records are extensive for a right ankle condition, but are silent outside of a VA examination for any left ankle pain or disability. Indeed, the examiner referenced a treatment note from May 2018, which indicates the Veteran's right ankle improving to the point he can run, swim and scuba dive, with "no restriction". In reviewing the evidence, the Board notes that the Veteran submitted an April 2016 private examination regarding his right ankle condition. While this private examination notes a painful and unstable right ankle, there is no diagnosis for any left ankle disability. Thus, taking the medical evidence as a whole, there is only one diagnosis for a left ankle condition, noted as a left ankle strain, in May 2014. As discussed above, the VA examinations conclude that such a condition was not related to service or his service-connected right ankle disability. In arriving at this conclusion, the Board acknowledges the Veteran's statements relating his claimed left ankle disability to active service. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to testify regarding the etiology of an orthopedic left ankle disorder. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. The Veteran is not competent to identify a nexus between his service or his service-related disabilities, and his current disorder. Therefore, the Veteran's lay statements that his current left ankle disability is related to his service are found to lack competency. In sum, the most probative evidence of record shows no link between the Veteran's left ankle disability and an event, injury, or disease incurred in service, or due to service. Base on the evidence of record, the Veteran's claim must be denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. McDonald