Citation Nr: 21066597 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-11 104 DATE: November 1, 2021 ORDER Entitlement to service connection for a right ankle disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's right ankle disability began in service, manifested to a compensable degree within one year of separation from active-duty service, or is otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1973 to February 1977. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded for additional development in a June 2018 Board decision. The Board finds that there has been 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 its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). During the pendency of this appeal, by way of an April 2020 rating decision, the RO granted the Veteran's claims for service connection for a left-hand little finger disability, corns of the right foot, peripheral neuropathy of the right upper extremity (claimed as a right thumb disability) and left-hand contact dermatitis. As this represents a full grant of the benefits sought on appeal, these issues are no longer before the Board. The Board observes that additional VA treatment records were received following the last adjudication by the RO in the April 2020 supplemental statement of the case (SSOC). The Board has reviewed these records and notes that they were submitted by the Veteran and duplicative of records already considered by the RO. Therefore, a waiver is not necessary, and the Board will proceed with adjudication of the issue on appeal. Entitlement to service connection for a right ankle disability Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases including arthritis, may be service connected on a presumptive basis if manifested to a compensable degree within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a), 3.309(a). For chronic diseases recognized as such under 38 C.F.R. § 3.309(a), the in-service incurrence of a disease or injury and the relationship between the current disability and that in-service disease or injury may be established by a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303(b), see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Veteran contends that his currently diagnosed right ankle arthritis is related to a right ankle sprain that occurred while on active duty in 1975. He believes that the pounding of his ankle on forced marches led to his current right ankle disability and reports that he has experienced continuous right ankle pain since his active-duty injury. See June 2012 VA Form 21-4138 statement in support of claim and September 2018 VA examination. The service treatment records (STRs) contain a January 1975 entry documenting a right ankle sprain. X-rays taken at the time showed no signs of fracture and there was no evidence of edema or discoloration. The Veteran's range of motion was limited, and pain was present. Two days later, the Veteran reported that his ankle was improving, and he felt that an exam was unnecessary. A December 1976 separation medical examination reflected a normal clinical evaluation for the Veteran's lower extremities. In July 2012, the Veteran was afforded a VA examination. On examination, range of motion of the right ankle was limited and the Veteran described right ankle pain. An x-ray of the right ankle was normal. He reported that he injured his right ankle during service and noted that since discharge, he had used Tylenol to treat his symptoms. The VA examiner opined that it was less likely as not that any current right ankle disability was incurred in or caused by service. He noted that the Veteran was seen once for his right ankle during service, at which point he was diagnosed with a right ankle sprain. The examiner reasoned that there was no evidence of chronic ankle problems while on active duty and no radiological evidence of post-traumatic changes or osteoarthritis on this exam. Therefore, he concluded that the right ankle injury that occurred during service was self-limiting. The record contains private podiatry records dated in July 2018, noting that the Veteran presented complaining of pain on the inside of his right foot and ankle. The Veteran reported that the pain had been present for several months and developed non-traumatically. In September 2018, the Veteran was afforded another VA ankle examination. The Veteran was diagnosed with degenerative arthritis of the right ankle based on an x-ray taken at the time of the examination which reflected mild degenerative changes. At this examination, the Veteran reported twisting the right ankle during service and noted that he had experienced swelling and pain in his ankle ever since. The VA examiner opined that it was less likely than not that the Veteran's degenerative joint disease of the right ankle was etiologically related to his active-duty service. The examiner noted that the Veteran was seen in January 1975 for right ankle pain and was diagnosed with an ankle sprain. Two days later, the Veteran stated that his ankle was improving and felt that an exam was unnecessary. The examiner noted that the Veteran's statement that he twisted his ankle on active duty is consistent with the STRs. However, the examiner stated that the STRs do not indicate that the ankle sprain was chronic, as the Veteran was not seen on any other occasion for his right ankle while on active duty. Further, she explained that the evidence after service does not indicate an ongoing right ankle sprain and noted that the current diagnosis was degenerative joint disease and not chronic right ankle sprain. Finally, the VA examiner discussed the literature regarding the causes of osteoarthritis, noting that arthritis becomes more common with age and noted that younger people can develop it, usually as the result of a joint injury, joint malformation, or a genetic defect in joint cartilage. She noted that the literature also found that osteoarthritis is more likely to occur in people who are overweight and in jobs that stress joints. In sum, the VA examiner opined that there was no nexus identified to date between the right ankle sprain in 1975 and the Veteran's currently diagnosed right ankle degenerative joint disease. In June 2019, the Veteran was afforded another VA ankle examination. The Veteran reported that he injured his right ankle during an in-service training exercise and reported a constant aching pain in his right ankle. The examiner noted that he was unable to locate the active-duty records which supported the claimed right ankle condition, and that the Veteran's right ankle disability was less likely than not incurred in or caused by the in-service injury. In this case, the Veteran is currently diagnosed with degenerative arthritis in his right ankle, thereby establishing the current disability element of the claim. See September 2018 VA examination. As to the in-service incurrence element, the STRs document a right ankle sprain which occurred in 1975 while on active duty; thereby establishing this element of the service connection claim. However, the preponderance of the evidence is against finding a nexus between the Veteran's current right ankle arthritis and his service, including the documented in-service right ankle sprain. The Board affords significant probative weight to the September 2018 VA examiner's determination that the Veteran's current right ankle arthritis was less likely than not related to his in-service right ankle sprain in 1975. The examiner reviewed the claims file, thereby considering the STRs and post service treatment involving the right ankle. She also took into account the Veteran's lay statements regarding the onset and course of his right ankle disability, including his report during this 2018 examination that he experienced swelling and pain in his ankle ever since the 1975 in-service right ankle sprain. She offered a well-reasoned rationale that contains supporting facts from the record and is consistent with other evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; a threshold consideration is whether the person opining is sufficiently informed). In rendering her opinion, she examined the STRs and noted that two days after his initial injury, the Veteran reported that his ankle was improving, and an exam was not necessary. She also explained that the Veteran was not seen on any other occasion for his right ankle while on active duty. Based on these facts, she opined that the STRs did not indicate that the right ankle sprain documented in January 1975 was a chronic disability during service. This statement is supported by the December 1976 separation medical examination which reflects a normal clinical evaluation for the Veteran's lower extremities. Further, the VA examiner reasoned that the medical evidence after service also did not show an ongoing, chronic right ankle sprain, thereby providing additional support for her conclusion that the Veteran's in-service right ankle sprain was an acute condition that resolved and not part of an ongoing disease process, including the Veteran's currently diagnosed right ankle arthritis. Finally, she stated that the current diagnosis was not chronic right ankle sprain but rather, degenerative joint disease. The Board emphasizes that the VA examiner considered the Veteran's statement that he experienced right ankle pain ever since service, but nevertheless, ultimately found that his currently diagnosed right ankle arthritis was not related to his documented 1975 right ankle sprain in service. Notably, the record does not contain a medical opinion contradicting her assessment. Although the July 2012 VA examiner reached the same conclusion as the September 2018 VA examiner, the Board attaches limited probative value to his determination. The July 2012 VA examiner opined that it was less likely than not that any current right ankle disability was incurred in or caused by service. He explained that although the Veteran was seen once for his right ankle in service, there was no evidence of chronic ankle problems while on active duty and no evidence of currently diagnosed osteoarthritis. Therefore, the 2012 examiner concluded that the Veteran's in-service right ankle sprain was self-limiting. The Board acknowledges that the Veteran was subsequently diagnosed with degenerative arthritis in September 2018 which undermines part of the rationale provided by the 2012 examiner in support of his conclusion. However, the July 2012 VA examiner reviewed the claims file, considered the Veteran's statement that he had used over the counter medication since service to treat his right ankle, and rendered an opinion with some supporting rationale. As such, the Board finds that his opinion retains some probative value. Finally, the Veteran's right ankle arthritis may be granted service connection on a presumptive basis under 38 C.F.R. § 3.309, if manifested to a compensable degree within 1 year of separation from service. In this case, there was no x-ray evidence of arthritis until September 2018, decades after discharge. The Board notes that the Veteran states he has experienced continued right ankle pain ever since his in-service right ankle sprain in 1975. See September 2018 VA examination. Although he is competent to report pain, as this is observable by a lay person, see Layno v. Brown, 6 Vet. App. 465, 471 (1994); the Board does not find his account of continued pain credible because it is inconsistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (when determining the credibility of lay evidence, the Board may properly consider internal consistency and consistency with other evidence of record). Here, after his January 1975 right ankle sprain, there are no further in-service complaints or treatment related to the Veteran's right ankle and significantly, the December 1976 separation medical examination reflects a normal clinical evaluation for the Veteran's lower extremities. From the time of the January 1975 right ankle sprain until discharge in December 1976, the Veteran sought treatment for other ailments including bilateral foot pain, but at that time, made no mention of right ankle pain. After discharge, the Veteran presented to the VA medical center complaining of severe right foot pain in 2013 and 2014 and also complained of constant left knee pain in 2016, but again, did not mention his right ankle. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (holding that a lack of notation where it would be expected, to include during treatment or examination, is noteworthy). Additionally, in 2018, the Veteran sought treatment from a private podiatrist complaining of pain on the inside of his right foot and ankle. He stated that the "pain had been present for several months and developed non-traumatically." See July 2018 podiatry records. Here, the Veteran did not state that he had experienced right ankle pain for many years or that it was a result of an earlier ankle sprain, but instead reported that his right ankle pain had been present for a couple of months and developed "non-traumatically." In this regard, the Board notes that courts have recognized how medical history recounted during the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker v. Brown, 10 Vet. App. 67 (1997). Finally, VA treatment notes reflect that during a January 2014 physical exam, the examiner was conducting a review of systems, including the musculoskeletal system, at which point the Veteran denied symptoms of joint pain or stiffness, which again, is inconsistent with the Veteran's statement that he experienced right ankle pain ever since the 1975 in-service injury. Further, although not dispositive, the first documentation of right ankle complaints after the 1975 in-service right ankle sprain is not until the Veteran filed his claim in 2011 and received a VA examination in 2012, decades after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for a condition can be considered as a factor in resolving a claim but is not dispositive); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). (Continued on the next page) Although the Veteran believes that his current right ankle arthritis is related to service, the Veteran is not competent to render this opinion, as he does not have the requisite medical experience or training to provide a medical nexus. Determining the likelihood that his right ankle arthritis is related to service is a complex medical question and the Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion for his right ankle arthritis. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the September 2018 VA examiner's opinion. In summary, the preponderance of the evidence is against a nexus between the Veteran's current right ankle arthritis and his in-service right ankle sprain or any other incident of service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a right ankle disability must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alison M. Mecone, 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.