Citation Nr: 21065911 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-11 910 DATE: October 27, 2021 ORDER Entitlement to service connection for a left ankle disability is denied. FINDING OF FACT The preponderance of the evidence shows that a left ankle disability was not present in service or until many years thereafter and it is not related to service or to an incident of service origin. CONCLUSION OF LAW The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from January 1959 to January 1979. The Veteran died in December 2019. The appellant is the Veteran's spouse and in April 2020 her motion for substitution was granted. In September 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. In a December 2019 decision, the Board of Veterans' Appeal (Board), among other things, denied the claim of service connection for a left ankle disability. The appellant appealed the December 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 order, which incorporated the parties December 2020 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the part of the December 2019 Board decision that denied service connection for a left ankle disability. In May 2021, the Board Remanded the appeal. Before adjudicating the claim below, the Board finds it important to note the following: during his lifetime, the Veteran was in receipt of a combined 100 percent schedular rating at all times from March 30, 3012; the Veteran died in December 2019; and a March 2020 rating decision granted the appellant service connection for the cause of the Veteran's death and Dependent's Educational Assistance. The Concerns Raised by the JMPR and Post-Remand Compliance As to the concerns raised in the JMPR and post-Remand compliance, the Board finds that the post-Remand development substantially complied with both because it finds that the VA opinions obtained in July 2021 and September 2021 provide all needed information to adjudicate the claim under all theories of entitlement because they considered the competent and credible lay claims regarding observable symptomatology, the in-service and post-service medical record and not just the post-service X-rays, and because the opinions are supported by medical reasoning. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order); ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). The Board also finds that the post-Remand development substantially complied with the Remand because all identified and available VA and private treatment records were obtained and associated with the claims file. See 38 U.S.C. § 5103A(b); Stegall, supra. Therefore, the Board finds that further delay by remanding the appeal to obtain another VA opinion or to obtain additional medical records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Further development or analysis does not serve the interests of the appellant or the Veterans' Administration (VA). The Service Connection Claim The appellant claims that the Veteran was entitled to service connection for a left ankle disability because, in substance, it was due to his military service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that the record shows the Veteran was diagnosed with arthritis of the left ankle. See, e.g., VA examination dated in January 2017. Moreover, a review of his service treatment records reveals that the Veteran injured his left ankle in February 1973, more than 45 years before his death in 2019. The records indicate that the condition was diagnosed as left ankle sprain/strain and that he was provided with a leg cast. Imaging of the ankle at the time were negative for any fractures or other abnormalities Next, the Board finds that the Veteran was competent to report on the events he experienced while on active duty as well as manifestations of his disabilities and the appellant is competent to report on what she sees. See Davidson, supra. However, service treatment records, including the pre-February 1973 examinations dated in July 1963, September 1963, September 1964, December 1968, and November 1971 as well as the post-February 1973 examinations dated in February 1976 and November 1978 are otherwise negative for injuries, history, complaints, diagnoses, or treatment for a left ankle disability. See Colvin, supra. In fact, the Veteran denied having a history of broken bones, arthritis, joint deformity, and lameness at his July 1963, September 1963, September 1964, December 1968, November 1971, and February 1976 examinations as well as at his November 1978 separation examination. It is important to note that at these key points, it was the Veteran himself that provides evidence against this claim. Moreover, when examined at those times, all his examiners opined that his lower extremities were normal and these medical opinions are not contradicted by any other medical evidence of record. Id. Therefore, the Board finds, as the service examiners must have found, that the Veteran's problems due to the left ankle strain in 1973 were transient in nature and resolved by the time he separated from active duty in 1979. See Owens, supra. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused his post-service left ankle disability despite the February 1973 left ankle strain. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In this regard, the Board finds that the detailed service record, which documents the Veteran's complaints, diagnoses, or treatment for a number of other problems weights against his current claim that he had problems with observable symptoms of a left ankle disability while on active duty 40 years before his death in 2019. See Owens, supra. Again, it is important for the appellant to understand that at this point it was the Veteran himself that provided evidence against his claim. As to service connection for a left ankle disability based on the presumptions found at 38 C.F.R. § 3.309(a), the record does not show arthritis being diagnosed in the first year following his separation from active duty. Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) do not help the appellant establish service connection for the Veteran's left ankle disability. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. Next, the Board will consider whether the Veteran was entitled to service connection for a left ankle disability due to continuity of symptomatology under 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(b). In this regard, in a non-precedential Memorandum Decision, Judge Toth of the United States Court of Appeals for Veterans Claims (Court) emphasized that it is the Board's duty to determine whether evidence shows that the principal fact is true with a degree of certainty that satisfies the requisite standard of proof. See Davis v. McDonough, No. 20-3267 (September 22, 2021). Mere circumstantial evidence such as this can be compared with the annotations of Henry David Thoreau, who observed of "unscrupulous dairymen who diluted their milk with water to increase its volume, '[s]ome circumstantial evidence is very strong, as when you find a trout in the milk.'" See id. (citing Journal, 11 Nov. 1850, in 2 Journal of Henry D. Thoreau 94 (Bradford Torrey & Francis H. Allen eds., 1962)); Also see Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). With the above standard in mind, the Board notes that the post-service record does not show that the Veteran had a continued problem with a left ankle disability in and since active duty ended in 1979; 40 years before his death in 2019. In fact, and as noted above, while service treatment records document a left ankle sprain in February 1973, the service treatment records, including the pre-February 1973 examinations dated in July 1963, September 1963, September 1964, December 1968, and November 1971 as well as the post-February 1973 examinations dated in February 1976 and November 1978, are otherwise negative for injuries, history, complaints, diagnoses, or treatment for a left ankle disability. See Colvin, supra. In fact, the Veteran denied having a history of broken bones, arthritis, joint deformity, and lameness at his July 1963, September 1963, September 1964, December 1968, November 1971, and February 1976 examinations as well as at his November 1978 separation examination. Moreover, on examination, all the above examiners opined that his lower extremities were normal and these medical opinions are not contradicted by any other medical evidence of record. Id. Likewise, and as important, the post-service is negative for any complaints, diagnoses, or treatment for a left ankle disability until 2009; three decades after the Veteran's 1979 separation from active duty. See, e.g., private treatment records dated in October 2009 and April 2014. Tellingly, when examined in April 2018 left ankle x-rays were negative for any disability despite the earlier October 2009 treatment record diagnosing degenerative joint disease. The Board also finds it significant that at no time in any of his in-service or pre-2009 post-service medical record did the Veteran report having left ankle problems while on active duty and since active duty in 1979; 40 years before his death in 2019. Given this record, the Board finds that the evidence in the form of the service medical records and the post-service medical evidence provides highly probative evidence, overall, against the claim which evidence the Board finds more probative than the Veteran's and/or the appellant's claims that he had observable symptoms of a left ankle disability in service and since his service ended in 1979. See Owens, supra. For the reasons noted above, the Board finds that the service and post-service medical records provide highly probative evidence against the claim. Id. The service and post-service records in this case provide particularly negative evidence against the claim (both are highly detailed; clearly indicating problems that began years after service). Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with a left ankle disability in and since his service ended in 1979 (i.e., 40 years before his death in 2019) despite the February 1973 left ankle strain. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(b). The Board also finds that the preponderance of the evidence shows that the Veteran's post-service left ankle disability is not due to his military service despite the February 1973 left ankle strain. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, and as discussed in part above, the July 2021 and September 2021 VA examiners opined that the left ankle disability was not due to his military service. Moreover, the Board finds these opinions the most probative evidence of record for the following reasons: they considered the service treatment records and the post-servicer treatment records and not just the post-service x-rays; they considered the appellant's competent and credible claims regarding observable symptoms; they considered the in-service and post-service medical records; they took into account all theories of entitlement; the opinions are supported by medical reasoning as well as controlling medical literature; and because they are not contradicted by any other medical evidence of record. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran's position); Owens, supra; Colvin, supra. The Board also finds that neither the Veteran during his lifetime nor the appellant since that time is competent to provide the missing nexus opinion because they do not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused the Veteran's post-service left ankle disability). See Davidson, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's left ankle disability is not due to his military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau, supra. In this regard, the key question in this case is not if the Veteran had a disease or injury while on active duty or if during his life-time he had a left ankle disability. The key issue is whether any disease or injury the Veteran had during active duty, 40 years before his death in 2019, was at least as likely as not (a 50 percent or greater chance) the cause of the current problem. The fact that he may, or may not, have had left ankle problems while on active duty does not always provide the basis to find that the post-service left ankle disability id the result of that disease and/or injury from 40 years ago. Sometimes, in some cases, the best evidence provides evidence against such claim. In this case, the Board finds that there is now significant evidence in this record, in both the service and post-service (and sometimes the Veteran's own statements), that provides highly probative evidence against the claim that clearly outweigh all evidence that supports the claim. See Owens, supra. It is vital for the appellant to understand that the Board has taken her concerns seriously (it was the bases of the Board Remand), however, there is now overwhelming medical and factual evidence against the claim from the VA examiner that the Board cannot ignore. The service and post-service treatment records, as noted above, also have been found by the Board to provide highly probative evidence against the claim, beyond the medical opinions in this case that also provide evidence against the claim. There is no basis to assume that yet another medical opinion in this case will provide a basis to grant the claim, in light of this record. With regard to any contention from the Veteran that had the problem for 40 years before his death in 2019, the Board must find that any such statement would be outweighed by the evidence of record. Therefore, the Board finds that the claim of service connection for a left ankle disability is denied. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.