Citation Nr: 21067512 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-41 390 DATE: November 4, 2021 ORDER Service connection for a right ankle disability is denied. FINDING OF FACT 1. The Veteran has a current diagnosis of a right ankle sprain with degenerative joint disease (DJD). 2. The right ankle was not incurred in or etiologically related to active service or to a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). CONCLUSION OF LAW The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 101(24), 1110, 1131, 5107; 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the Appellant, served on active duty from December 1987 to December 1991, and served in the Air Force Reserves until she retired in December 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for a right ankle disability. The Veteran requested a Central Office hearing in Washington, DC, and was scheduled for a hearing in April 2019. The March 2019 notice was sent to the most recent address of record. The Veteran did not report for the hearing at the scheduled date and time. Accordingly, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.603 (2019). This matter was before the Board in March 2020 and June 2021. In June 2021, the Board remanded the issue on appeal to obtain any outstanding private treatment records, including those from Dr. M.K. from 2007, and to verify the Veteran's duty status for the year of 2007, to include by attempting to obtain earnings and leave statements from Defense Finance and Accounting Service (DFAS). Although the RO advised the Veteran to return a completed medical release form (Form 4142) to obtain any outstanding private treatment records, the Veteran did not submit a completed medical release form. Additionally, the RO contacted DFAS to verify the Veteran's duty status for the entire year of 2007, to include leave and earnings statements, but the requested records were unavailable. See June 2021 Development Letter, September 2021 Final Attempt Letter. Therefore, the Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the June 2021 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in the appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury, not diseases, incurred in or aggravated in the line of duty, or an acute myocardial infarction, cardiac arrest, or cerebrovascular accident during INACDUTRA. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1). VA's General Counsel has interpreted that it was the intention of Congress when it defined active service in 38 U.S.C. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. See VAOPGCPREC 86-90. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. The presumptive provisions of "chronic" in-service symptoms and "continuous" post service symptoms do not apply to periods of ACDUTRA or INACDUTRA. See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, consideration of the provisions of 38 C.F.R. §§ 3.303(b), 3.307 and 3.309 (presumption of service incurrence for certain diseases) for any periods of ACDUTRA and/or INACDUTRA is not appropriate. Service Connection for a Right Ankle Disability is Denied. The Veteran contends that the current right ankle disability is the result of an injury incurred during a period of Reservist duty training (i.e., ACDUTRA or INACDUTRA) from February 12, 2007 to March 16, 2007 at McGuire Air Force Base. See February 2016 Notice of Disagreement. The evidence shows a current disability of right ankle sprain with degenerative joint disease. See April 2014 VA examination report. The weight of the lay and medical evidence is against finding that symptoms of a right ankle disability were "chronic" in active service, continuous since active service, or manifested within one year of active service. The service treatment records are silent for complaints, symptoms, diagnosis, or treatment for any right ankle disability during the Veteran's period of active service from December 1987 to December 1991. Post-active service records show no symptoms or treatment for the right ankle until May 2007, 16 years after active service. The Veteran's sole contention is that she injured the right ankle during a period of Reserve duty training from February 12, 2007 to March 16, 2007. As such, this same evidence shows that symptoms of a right ankle disability did not manifest within one year of active service and were not continuous since active service. Moreover, although the Veteran has a current diagnosis of right ankle DJD, which is considered "arthritis" and recognized as a chronic disease under 38 C.F.R. § 3.309(a), the chronic presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307 and 3.309 are not applicable to periods of ACDUTRA or INACDUTRA. See Biggins, 1 Vet. App. at 477-78; Smith, 24 Vet. App. 40; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). After reviewing all the lay and medical evidence of record, the Board finds that the weight of the lay and medical evidence demonstrates that the right ankle disability was not incurred in or otherwise related to service, to include an injury or disease during a period of ACDUTRA or INACDUTRA. The Board has considered the Veteran's lay statements that she injured the right ankle during Reservist duty training from February 12 to March 16, 2007; however, the Veteran's more recent assertion is outweighed by other more contemporaneous evidence of record. The available evidence of records does not suggest that a right ankle injury occurred during a period of ACDUTRA or INACDUTRA. The service treatment records indicate that the Veteran sought private treatment from Dr. M.K. from May 2007 to August 2007 for a right ankle sprain two to three months after the Veteran asserts the injury occurred. A May 2007 note from Dr. M.K. provided a history that the Veteran experienced several ankle twists, fell down several times, and that the ankle has been giving way and was notable for a torn tendon upon imaging. Dr. M.K.'s treatment notes do not reflect a contemporaneous lay history, for the purpose of treatment, of an initial right ankle injury during a period active or inactive Reservist duty training. See May 2007, June 2007, July 2007, August 2007 service treatment records. Thereafter, service treatment records show that the Veteran requested a physical profile in September 2007 due to chronic right ankle pain due to torn ligament; however, the September 2007 service treatment record also does not reflect a contemporaneous lay or medical history of initial right ankle injury while the Veteran was on IN/ACDUTRA status. Notably, service records show that the Veteran filed a formal injury report when she injured the left knee while on Reservist duty in March 2001, but no such formal report of injury or line of duty report was initiated for the right ankle injury between February and March 2007, when the Veteran alleges the injury occurred. Moreover, the Veteran did not seek a physical profile for the right ankle until September 2007, 6 to 7 months after the injury purportedly occurred according to the Veteran, and again made no mention of an initial right ankle injury during Reservist duty training. The record also shows that the Veteran sought treatment for other musculoskeletal conditions during active service and Air Force Reserve service, including right knee pain, left knee injury, and shin splints, but the record is silent for any right ankle injury, complaints, or treatment or report of a history of injury between February and March 2007, when the Veteran asserts the injury occurred. See April 1988, June 1989, March 1990, March 2001 service treatment records. Such evidence suggests that the right ankle injury, similar to treatment sought for other musculoskeletal conditions, would have been recorded had it occurred during a period of Reservist duty training from February to March 2007. In a June 2020 VA medical opinion, the VA examiner opined that the right ankle disability was at least as likely as not related to service because ankle sprain/strain injuries are well known to be a cause of chronic ankle pathology and the arthritis is secondary to the initial ankle injury. The Board finds this opinion to be of little probative value, as the opinion does not consider an accurate medical history of the right ankle, to include whether the ankle injury occurred during a qualifying period of service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis, but cannot reject the opinion solely because the history was from the veteran). In an addendum medical opinion dated November 2020, the VA examiner opined that it is less likely than not that the Veteran's current right ankle disability is related to an in-service injury, disease, or illness during service because, upon further review of the file, the evidence does not show the ankle sprain was incurred during a period of active duty, active duty for training, or inactive duty training. See November 2020 VA examination report. This opinion is based on accurate factual assumptions that are consistent with the facts found by the Board in this case. Considered in light of the record as a whole, the Board finds the November 2020 VA opinion to be of probative value, as the VA examiner reviewed the claims file and assumed accurate facts that are consistent with the Board's findings of fact in this case, which show that the record is silent for the onset of right ankle injury or disease during a period of active service, ACDUTRA, or INACDUTRA. Based on the foregoing, the weight of the competent and credible evidence demonstrates no relationship between the current right ankle disability and active service, ACDUTRA, or INACDUTRA. As the preponderance of the evidence is against service connection on all theories of service connection, the benefit of the doubt doctrine does not apply, and the claim for service connection for a right ankle disability must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.