Citation Nr: 21065254 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 12-27 037A DATE: October 25, 2021 ORDER Entitlement to service connection for chronic bronchitis is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a left ankle disability is denied. FINDINGS OF FACT 1. The evidence of record is against finding that the Veteran's chronic bronchitis occurred in, or is the result of, his period of active duty service. 2. The evidence of record is against finding that the Veteran's cervical spine disability occurred in, or is the result of, his period of active duty service. 3. The evidence of record is against finding that the Veteran's lumbar spine disability occurred in, or is the result of, his period of active duty service. 4. The evidence of record is against finding that the Veteran's bilateral knee disability occurred in, or is the result of, his period of active duty service. 5. The evidence of record is against finding that the Veteran's left ankle disability occurred in, or is the result of, his period of active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic bronchitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a)(b), 3.307(a)(3), 3.309(a). 3. The criteria for entitlement to service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a)(b), 3.307(a)(3), 3.309(a). 4. The criteria for entitlement to service connection for a bilateral knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a)(b), 3.307(a)(3), 3.309(a). 5. The criteria for entitlement to service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a)(b), 3.307(a)(3), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from June 1985 to November 1985 active duty from May 1986 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board first addressed these claims in a September 2016 Decision. It remanded them, finding that opinions from December 2010 all were inadequate. Over the course of the next two years, the agency of original jurisdiction (AOJ) attempted to schedule the Veteran for an examination for these claims; however, he continually refused to attend any examination at certain VA facilities or conducted by non-contracted medical professionals, i.e., VA employees. In an October 2018 Decision, the Board denied these claims, citing 38 C.F.R. § 3.655the provision governing missed VA examinations. The Veteran appealed that Decision to the United States Court of Appeals for Veterans Claims (CAVC). In a June 25, 2020, Memorandum Decision, the CAVC vacated the Board's October 2018 Decision because it failed to address whether the Veteran's service-connected psychiatric disability qualified under 38 C.F.R. § 3.655(a) as good cause, thereby excusing his failure to appear for the previously scheduled examinations. The Board responded earlier this year to the CAVC's concerns. It held that, while the record did reflect that the Veteran's psychiatric disability constituted good cause, excusing his failure to appear, rescheduling for new examinations was futile. Feb. 17, 2021, Board Decision at 56. The Board approximately spent two pages discussing why rescheduling was not warranted and how the AOJ had fulfilled the duty to assist. The Board herein incorporates that discussion as it pertains to the final adjudication of these claims. See id. at 67. It still remanded these claims, however, because it wished to afford the Veteran the opportunity to supply his own medical opinions, especially since he referenced ones previously submitted with other private medical records. At the time, a review of those records did not show any such opinions. It is against this backdrop that the Board now readdresses this appeal. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). For disability resulting from personal injury suffered or disease contracted in 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, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1131. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). For certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a degree of ten percent within one year following discharge from service. When a chronic disease is not shown to have manifested to a compensable degree within one year after service, there is required, under 38 C.F.R. § 3.303(b), a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b), 3.307(a)(3), 3.309(a). To establish secondary service connection, a veteran must provide evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond natural progression by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc); 38 C.F.R. § 3.310. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. 1. Entitlement to service connection for chronic bronchitis is denied. The Veteran asserts that he developed bronchitis due to his military service. Specifically, he contends that when he first was assigned to his unit in 1986, he was exposed to asbestos from the ceilings when he and a fellow service member were required to help remove without masks asbestos. He reports that he soon after began to exhibit bronchitis on a regular basis. He recalled having difficulty breathing during the summertime. While he tried to tell the VA physician that it was bronchitis, he was told that it merely was allergies. See Oct. 9, 2012, VA Form 9; Dec. 19, 2011, Notice of Disagreement (NOD); Dec. 14, 2010, VA Examination. Service treatment records (STRs) show that the Veteran was treated for several upper respiratory infections; however, his December 1988 separation examination found no abnormalities regarding his lungs and chest. Post-service treatment records show the use of albuterol inhaler for bronchitis. A December 2010 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The report indicates a diagnosis of chronic bronchitis. The Veteran reported experiencing chronic bronchitis, with symptoms that included difficulty breathing, coughing up phlegm, and chest congestion. He also reported coughing up blood once in December 2009. He also reported having a single episode where he was placed on bed rest for six months. Testing revealed that the Veteran's lung volumes were within normal limits, but that there is a mild decrease in diffusing capacity. Because this examiners' opinion previously was deemed inadequate, it will not be discussed. April 2012 VA medical center (VAMC) records show that the Veteran was diagnosed with allergic rhinitis, a reactive airway disease. There was, however, no medical opinion linking the condition to his in-service respiratory complaints. The Board recognizes that the Veteran currently suffers from a respiratory condition and that he was diagnosed with various upper respiratory infections during service. Thus, the first two elements of service connection have been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Turning to the third element of service connection, the Board finds that the record is insufficient. As noted above, the regulations for a veteran's failure to appear for a scheduled examination now govern this claim. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms "examination" and "reexamination" include periods of hospital observation when required by VA. 38 C.F.R. § 3.655(a). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a supplemental claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Id. at (b). While the Board previously accepted that the Veteran's failure to appear is excused, it has also concluded that attempting to schedule the Veteran for any further examinations is futile; and that the duty to assist was satisfied. While the Veteran sincerely believes his current respiratory condition is associated with his in-service upper respiratory infections and possible asbestos exposure, he is not competent to render such a complex medical opinion. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Board afforded the Veteran ample time to submit any private medical opinion, but he indicated he could not secure such an opinion. See April 20, 2021, VA Form 27-0820; Feb. 23, 2021, VA Letter. Because the Board previously has deemed the December 2010 VA opinion inadequate, there is no other competent and credible medical opinion of record, and the AOJ has satisfied VA's duty to assist, the Board finds that the third element of service connection has not been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Because the evidence of record does not support the Veteran's claim for entitlement to service connection for chronic bronchitis, his appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). 2. Entitlement to service connection for a cervical spine disability is denied. The Veteran alleges that his cervical spine disability is secondary to his service-connected hammer toes. Jan. 15, 2015, NOD. STRs show that the Veteran was treated for back pain and noted complaints of neck pain; however, by the time of his December 1988 separation examination, there were no clinic abnormalities regarding his cervical spine. A December 2010 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The Veteran was diagnosed with degenerative disc disease in C45 an C56 with bilateral foraminal stenosis. The Veteran reported that he started having back problems in 2002, even though he was diagnosed with hammertoes several years earlier in 1984. His symptoms included pain and numbness in the upper thoracic spine. In 2003, he sought treatment at a VA treatment facility in Nevada and Missouri. He added that a VA orthopedic surgeon recommended that he have his bilateral foot condition treated in order to correct his posture. He underwent physical therapy and followed up with VA to receive corrective shoes and inserts twice a year. He stated that he attended in 1988 an airshow in Germany, where he was trampled over by a crowd of people. The crowd had knocked him down and ran on top of his back. The Board recognizes that the Veteran currently has a cervical spine disability, so the first element of service connection on both a direct and secondary basis is established. See Romanowsky, 26 Vet. App. at 293; Allen, 7 Vet. App. at 446; 38 C.F.R. §§ 3.303(a), 3.310. While the Veteran does have a degenerative condition of the cervical spine that qualifies for presumptive service connection based on a chronic condition, see 38 C.F.R. § 3.309(a), the evidence does not show that it was diagnosed within one year from separation from service, so service connection on that basis is not permissible. See 38 C.F.R. § 3.307(a)(3). The evidence also fails to showand the Veteran does not arguethat he has experienced problems in his neck since service into the present. Indeed, at the December 2010 VA examination, the Veteran confirmed that back problems began in 2002. Thus, the application of presumptive service connection based on continuity of symptomatology also is inapplicable. See Walker, 708 F.3d at 1336; 38 C.F.R. § 3.303(b). The Board acknowledges that there was an in-service complaint of neck pain and that the Veteran currently is service connected for bilateral hammertoes, satisfying the second element of service connection on both a direct and secondary basis. See Romanowsky, 26 Vet. App. at 293; Allen, 7 Vet. App. at 446; 38 C.F.R. §§ 3.303(a), 3.310. With respect to the third element on either basis, the record is insufficient. The December 2010 VA opinion previously has been deemed inadequate. The Veteran has failed to submit any other private opinion on which the Board can rely. As noted earlier and, the AOJ has satisfied with its previous attempts to schedule the Veteran for an examination in compliance VA's duty to assist. The Veteran's own belief that his cervical spine disability should be service-connected is not competent evidence on which the Board can solely rely. See Jandreau, 492 F. 3d at 1377. Thus, the third element of service connection on both a direct and secondary basis have not been established. See Romanowsky, 26 Vet. App. at 293; Allen, 7 Vet. App. at 446; 38 C.F.R. §§ 3.303(a), 3.310, 3.655(b). Because the evidence of record does not support the Veteran's claim for entitlement to service connection for a cervical spine disability, his appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 3. Entitlement to service connection for a lumbar spine disability is denied. The Veteran contends that his back problems also are secondary to his service-connected hammer toes. Oct. 9, 2012, VA Form 9. STRs show that the Veteran was treated for back pain and noted complaints of muscle spasms below the shoulder blades. By the time of his separation examination, however, there were no clinical abnormalities regarding his spine. Post-service VAMC records show that the Veteran complained of pain in the lower right back. A December 2010 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The Veteran was diagnosed with degenerative joint disease of the thoracic spine at all levels, spina bifida occulta at S1, intervertebral disc syndrome most likely involving bilateral peroneal and tibial nerves. The Board recognizes that the Veteran currently has a lumbar spine disability, so the first element of service connection on both a direct and secondary basis is established. See Romanowsky, 26 Vet. App. at 293; Allen, 7 Vet. App. at 446; 38 C.F.R. §§ 3.303(a), 3.310. While the Veteran has various degenerative condition of his lumbar spine that qualify for presumptive service connection based on a chronic condition, see 38 C.F.R. § 3.309(a), the evidence does not show that they were diagnosed within one year from separation from service, so service connection on that basis is not permissible. See 38 C.F.R. § 3.307(a)(3). The evidence also fails to showand the Veteran does not arguethat he has experienced problems with his lumbar spine since service into the present. Indeed, at the December 2010 VA examination, the Veteran confirmed that back problems began in 2002. Thus, the application of presumptive service connection based on continuity of symptomatology also is inapplicable. See Walker, 708 F.3d at 1336; 38 C.F.R. § 3.303(b). The Board acknowledges that there were in-service complaints of back pain and that the Veteran currently is service connected for bilateral hammertoes, satisfying the second element of service connection on both a direct and secondary basis. See Romanowsky, 26 Vet. App. at 293; Allen, 7 Vet. App. at 446; 38 C.F.R. §§ 3.303(a), 3.310. With respect to the third element on either basis, the record is insufficient. The December 2010 VA opinion previously has been deemed inadequate. The Veteran has failed to submit any other private opinion on which the Board can rely. As noted earlier and, the AOJ has satisfied with its previous attempts to schedule the Veteran for an examination in compliance VA's duty to assist. The Veteran's own belief that his lumbar spine disability should be service-connected is not competent evidence on which the Board can solely rely. See Jandreau, 492 F. 3d at 1377. Thus, the third element of service connection on both a direct and secondary basis have not been established. See Romanowsky, 26 Vet. App. at 293; Allen, 7 Vet. App. at 446; 38 C.F.R. §§ 3.303(a), 3.310, 3.655(b). Because the evidence of record does not support the Veteran's claim for entitlement to service connection for a lumbar spine disability, his appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 4. Entitlement to service connection for a bilateral knee disability is denied. The Veteran contends that he suffers from weakened knees due to his service-connected hammer toes. Oct. 9, 2012, VA Form 9. STRs reveal no knee conditions or injuries. The December 1988 separation examination reported no clinical problems with the knees. The Veteran also did not mention any knee problems in his report of medical history. A December 2010 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The Veteran was diagnosed with bilateral degenerative joint disease of the knees. The Veteran indicated that he had experienced pain, swelling, and buckling in his right knee since 1998. He stated that he was told by a physician that it was caused by his ankle problems. With regard to his left knee, he indicated that he twisted and dislocated it during a running formation in service in 1986. As a result, he asserted that he had been fitted into a soft cast and required to attend physical therapy. He stated that it had improved but had started to bother him again after he left service. His left knee started buckling in 2003 and he was told by his physician that it was due to his ankle problems. The condition worsened to a point where he could no longer put weight on it. A 2008 MRI indicated floating bodies and a torn meniscus. He underwent physical therapy in 2006 and was prescribed a knee brace. He was scheduled for surgery in December 2009, which failed to take place. The examiner noted that the Veteran's MRI revealed lateral subluxation of the patella and partial thickness cartilage loss of the lateral facet of the patella. There was spurring of the patella femoral joint, mild joint effusion with two loose bodies seen within the joint space, small amount of fluid in the semimembranous collateral ligament bursa and within a popliteal cyst and within the pes anserinus bursa. There was also partial chronic tear of the lateral collateral ligament area. A January 2012 MRI of the right knee shows suprapatellar joint effusion. By October 2014, there was mild osteoarthritic changes in the right knee. A July 2014 MRI result showed that the Veteran's left knee medial and lateral meniscus is intact. There was no bony contusion, stress fracture or osteonecrosis seen. There was, however, a moderate to large joint effusion and a sizable popliteal cyst. In sum, the Veteran suffers from moderate degenerative changes that affect all 3 compartments of the left knee. The Board recognizes that the Veteran currently has a bilateral knee disability, so the first element of service connection on both a direct and secondary basis is established. See Romanowsky, 26 Vet. App. at 293; Allen, 7 Vet. App. at 446; 38 C.F.R. §§ 3.303(a), 3.310. While the Veteran does have a degenerative condition of his bilateral knees that qualifies for presumptive service connection based on a chronic condition, see 38 C.F.R. § 3.309(a), the evidence does not show that it was diagnosed within one year from separation from service, so service connection on that basis is not permissible. See 38 C.F.R. § 3.307(a)(3). With respect to his right knee, the evidence also fails to showand the Veteran does not arguethat he has experienced problems with his knees since service into the present. Indeed, at the December 2010 VA examination, he confirmed that right knee problems began in 1998. Thus, the application of presumptive service connection based on continuity of symptomatology for the right knee also is inapplicable. See Walker, 708 F.3d at 1336; 38 C.F.R. § 3.303(b). As for the left knee, he asserts that he injured it during service, was placed, in a cast, and subsequently experienced pain after service. STRs fail to show any left knee injury. The Veteran affirmatively denied knee pain at separation from service, and the earliest indication that he sought medical treatment is in 2003. Thus, the Board does not find as credible the Veteran's assertion that he has experienced left knee pain since service into the present. Therefore, the application of presumptive service connection based on continuity of symptomatology for the left knee also is inapplicable. See Walker, 708 F.3d at 1336; 38 C.F.R. § 3.303(b). With respect to direct service connection, the Veteran does not argue that he suffered an in-service injury to his right knee, and the record fails to disclose a left knee injury, despite his contentions. The December 1988 separation examination reveals normal knees, and the Veteran affirmatively denied any knee problems on the corresponding report of medical history. Thus, the Board does not find that the second element of direct service connection for either knee has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Even if the Board found credible the Veteran's assertions that he experienced an in-service left knee injury, the claim for direct service connection likewise would fail for lack of the third element. Because the Board previously found that VA's duty to assist has been satisfied (because further attempts to fulfill it would be futile), the application of 38 C.F.R. § 3.655(b) controls. Therefore, the Board must adjudicate this issue based on the evidence of record. While the Veteran may believe his alleged in-service left knee injury has caused his current condition, he is not competent to render that complex opinion. See Jandreau, 492 F. 3d at 1377. Because there is no other competent and credible medical opinion of record, the Board cannot find that the third element of direct service connection for the left knee has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). The Board, as it previously has, acknowledges the Veteran's service-connected hammer toes, so the second element of secondary service connection has been established. See Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. With respect to the third element on a secondary basis, the record is insufficient for both knees. The December 2010 VA opinion previously has been deemed inadequate, and the Veteran has failed to submit any other private opinion on which the Board can rely. Again, the Veteran's own belief that his bilateral knee disabilities should be service connected is not competent evidence on which the Board can rely. See Jandreau, 492 F. 3d at 1377. Thus, the third element of service connection on a secondary basis has not been established. See Allen, 7 Vet. App. at 446; 38 C.F.R. §§ 3.310, 3.655(b). Because the evidence of record does not support the Veteran's claim for entitlement to service connection for a bilateral knee disability, his appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 5. Entitlement to service connection for a left ankle disability is denied. The Veteran asserts that his left ankle condition is a result of his service-connected hammer toes. Jan. 15, 2015, NOD. STRs document problems with the Veteran's feet and toes but do not show any treatment for or diagnosis of a left ankle condition. His separation examination showed no clinical abnormalities regarding his ankle. Post-service VAMC records from June 2010 contain assertions from the Veteran that broke his ankles in a 1987 motor vehicle accident; however, treatment records showed no documentation of broken ankles. A physical examination showed normal range of motion in his ankles. There was no pain to the achilles tendon, and no pain with side-to-side compression of the calcaneus. A December 2010 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The Veteran was diagnosed with a healed fracture of the deformity of the right secondfifth metatarsal, bilateral bunion with hallux valgus, right Achilles spur, bilateral hammertoes, left calcaneal spur, and bilateral pes planus. The examiner also indicated that the Veteran has a significant leg length discrepancy, which could have been caused by his femur and tibia-fibula fractures when he was a child, that could be contributing to these conditions. The Board recognizes that the Veteran currently has a left ankle disability, so the first element of service connection on both a direct and secondary basis is established. See Romanowsky, 26 Vet. App. at 293; Allen, 7 Vet. App. at 446; 38 C.F.R. §§ 3.303(a), 3.310. While the Veteran has a degenerative condition of the left ankle that qualifies for presumptive service connection based on a chronic condition, see 38 C.F.R. § 3.309(a), the evidence does not show that it was diagnosed within one year from separation from service, so service connection on that basis is not permissible. See 38 C.F.R. § 3.307(a)(3). The evidence also fails to show that he has experienced problems with his left ankle since service into the present. While at the December 2010 examination the Veteran stated that he has had problems with his left ankle since his problems with his right, he fails to identify if this extended back to his allegations of an in-service right ankle injury or his allegation of a 2006 post-service motor vehicle accident. Irrespective, the evidence does not show that the Veteran began receiving treatment for his left ankle until many years after service, so the Board does not find that he has experienced symptoms since service into the present. Thus, the application of presumptive service connection based on continuity of symptomatology also is inapplicable. See Walker, 708 F.3d at 1336; 38 C.F.R. § 3.303(b). There are no in-service complaints of, treatment for, or diagnosis any left ankle condition. Even if there were some in-service injury, the record still lacks any competent and credible medical opinion addressing that fact; the Veteran's mere belief is not enough. See Jandreau, 492 F. 3d at 1377. Thus, the Board finds that the second and third element of direct service connection have not been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. §§ 3.303(a), 3.655(b). The Veteran is service connected for hammertoes, so the second element of secondary service connection has been established. See Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. With respect to the third element for secondary service connection, the record is insufficient. The December 2010 VA opinion previously has been deemed inadequate. The Veteran has failed to submit any other private opinion on which the Board can rely. As noted earlier and, the AOJ has satisfied with its previous attempts to schedule the Veteran for an examination in compliance VA's duty to assist. The Veteran's own belief that his left ankle disability should be service-connected is not competent evidence on which the Board can solely rely. See Jandreau, 492 F. 3d at 1377. Thus, the third element of service connection on a secondary basis has not been established. See Allen, 7 Vet. App. at 446; 38 C.F.R. §§ 3.310, 3.655(b). Because the evidence of record does not support the Veteran's claim for entitlement to service connection for a left ankle disability, his appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a), 3.310. (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, Associate 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.