Citation Nr: 21067867 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-10 146 DATE: November 5, 2021 ORDER Entitlement to service connection for a right ankle disability, to include as secondary to a right knee disability, is denied. REMANDED Entitlement to service connection for a left ankle disability is remanded. FINDING OF FACT The Veteran's current right ankle disability was not shown as chronic in service, and arthritis did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, proximately due to, or aggravated by service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a right ankle disability, to include as secondary to a right knee disorder, have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1976 to January 1980. These matters were previously before the Board of Veterans' Appeals (Board) in January 2020, at which time, in pertinent part, service connection was denied for a left and right ankle disabilities. The Veteran appealed the January 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In May 2021, while the case was pending at the Court, the parties signed a Joint Motion for Partial Remand (JMPR), requesting that the Court vacate and remand the Board's decision to the extent that it denied service connection for left and right ankle disabilities. In a subsequent order, the Court granted the JMPR. The matter has now been returned to the Board for further consideration. The Veteran testified at a Board hearing in February 2017; the transcript is of record. On September 8, 2021, the Board advised the Veteran that the Veterans Law Judge from the 2017 hearing was no longer employed at the Board and offered him 30 days to respond regarding whether he wanted an opportunity for a new Board hearing. The 30 days have expired, and he has not responded to the letter. Accordingly, the Board finds that there are no hearing requests pending at this time. 38 C.F.R. § 20.704(e). Entitlement to service connection for a right ankle disability, to include as secondary to a right knee disorder The Veteran contends that service connection is warranted for a right ankle disability because he injured his right ankle in service. Specifically, at the February 2017 Board hearing, he testified that he sprained his ankles playing football during service. He stated he got clipped from behind, landed on his foot wrong, and the right ankle was twisted downward. Alternatively, the Veteran asserts his right ankle disability is due to his right knee disability that was injured in service the same time his right ankle was injured. Service connection is granted on a direct basis when there is competent and credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Certain chronic diseases (to include arthritis) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time post-service (one year for arthritis). 38 U.S.C. § 1137; 38 C.F.R. §§ 3.307, 3.309. A nexus of a chronic disease to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). Initially the Board will address the issue of secondary service connection, as it is essentially the basis for the May 2021 JMPR with regard to this matter. The Board must deny the claim of entitlement to service connection for a right ankle disability as secondary to a right knee disability because the Veteran is not service connected for a right knee disorder. In January 2020, the Board remanded the issue of service connection for a right knee disability. Subsequently, in an April 2021 Board decision, service connection for a right knee disability was denied. In that decision, the Board found that the preponderance of the evidence was against finding that the Veteran's right knee disability had an onset in service or was otherwise related to his active service. Consequently, as a matter of law, service connection for a right ankle disability secondary to a right knee disability must be denied. See 38 C.F.R. § 3.310. The Board will proceed with an analysis of direct service connection for the claimed right ankle disability. Regarding direct service connection, the Veteran's service treatment records show in May 1977 he was seen in service with complaints of a right ankle sprain from playing softball. At that time, he reported having a history of an old fracture chip of the right ankle area. The diagnosis was sprain, no fracture. He was treated with an ace wrap and ice to the right ankle. In March 1978 he strained his right ankle playing basketball in service. The diagnosis was sprained ankle and rule out fracture. In December 1978, he twisted his right ankle playing basketball. The diagnosis was a sprain of the right ankle. A January 1979 follow-up report shows the Veteran was diagnosed with a sprain right ankle. In his enlistment medical history report, he indicated he had "broken bones". The enlistment medical examination report reveals no ankle abnormality. The December 1979 separation medical examination report shows no complaints or findings referring to the ankles. It appears the Veteran's in-service diagnoses of right ankle sprains were acute and transitory and resolved without any residual disability, as there were no findings of a right ankle condition reported at the time of the separation medical examination. Furthermore, the earliest post-service treatment record showing treatment for a right ankle injury was in August 1993. The record shows the Veteran injured his right ankle while playing softball. This was more than 13 years after the Veteran's separation from active duty service, which is probative evidence against a finding of service connection. At a May 2014 VA examination, the Veteran reported continued bilateral ankle pain, popping, and instability. He denied uses of ankle braces or surgeries or injections in the ankle. The x-rays reviewed at the examination showed old avulsion fracture fragments at the medial malleolus and small posterior and plantar calcaneal enthesophytes for the right ankle. In February 2016, the Veteran underwent a VA ankle examination. He reported he twisted his right ankle in service in the late 1970's. It was treated/wrapped, and he used crutches. He stated that he was limited for a time but then went back to full duty. Following examination of the Veteran, the examiner diagnosed mild osteoarthritis of the bilateral ankles and bilateral ankle strains resolved. Consequently, service connection for right ankle osteoarthritis on the basis that such disorder became manifest in service and persisted since, or on a presumptive basis as a chronic disease under 38 U.S.C. § 1137, is not warranted. The issue before the Board, in the absence of a showing on onset in service and continuity of complaints or symptoms since, is whether the Veteran's right ankle disability is related to his right ankle injuries in service. On this matter, the February 2016 VA examiner opined that the Veteran's current ankle condition is not related or aggravated by service or is proximately due to his service-connected disabilities. The rationale for the opinion was that there is not enough substantive chronological evidence from medical providers, in addition to that which has been provided to link the Veteran's claim/theory of significant injury and ongoing disability of the ankle in service and or an effect of another service connected condition to the right ankle using all information provided for review. Moreover, the examiner related that generally understood causation rationale supported by accepted standards and literature in the medical community, and biologically plausible scientific rationale do not support a connection with service. Based on the above, the Board finds that a preponderance of the evidence is against the claim for service connection for a right ankle disability. Indeed, although service treatment records reveal complaints, diagnoses and treatment of right ankle sprain during service, there was no right ankle disability noted or diagnosed on clinical evaluation at separation. As the February 2016 VA examiner determined, this supports that the Veteran's right ankle sprain was resolved before the end of his active service period. The Board finds the opinion of the February 2016 VA examiner highly probative evidence in this matter since it was offered by a medical professional following a review of the Veteran's medical records, examination of the Veteran, citing to factual data, applying relevant medical principles to the facts of the case, and proffering a thorough rationale for the opinion. As there is no competent evidence to the contrary, the Board finds the opinion persuasive. The Board has reviewed and considered the medical treatment records for the period from August 1988 to August 2013 that were associated with the claims file after the February 2016 VA examination. However, the Board finds that this evidence does not add any information material to determination of a nexus between osteoarthritis of the right ankle and the Veteran's service, to include service-connected disabilities. The medical treatment records refer to additional incidents of ankle sprains incurred while playing sports, post-service. The mechanism of injury reported by the Veteran involves collisions with a player or a base in the ball field unrelated to service. The Board acknowledges the credible lay statements from the Veteran regarding symptomatology. Nevertheless, to the extent the Veteran attributes his disability to service, he is not competent to opine on the etiology of a complex medical condition such as arthritis, and his statements are therefore afforded no probative weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the most probative evidence of record shows the current right ankle disability was not incurred in service and is not caused or aggravated by service-connected disability. Further, as stated above, no osteoarthritis of the right ankle was compensably disabling within one year of separation from service. 38 C.F.R. § 3.309(a). The Board also observes that the most probative evidence indicates that osteoarthritis of the right ankle did not exist and was not "noted" in service or within one year of separation from service. Thus, the provisions of 38 C.F.R. § 3.303(b) pertaining to chronicity or continuity of symptomatology are not for application. Accordingly, the claim of entitlement to service connection for a right ankle disability must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to service connection for a left ankle disability As noted above, in May 2021, the Court granted the parties' (Veteran and the Secretary of VA) JMPR and vacated and remanded the Board's January 2020 decision, citing inadequacies in the prior examination with regard to the left ankle. The Board finds that a remand is necessary for the issue of service connection for a left ankle disability to comply with the JMPR. The matter is REMANDED for the following action: Schedule the Veteran for a VA ankle examination by an appropriate professional to determine the nature and etiology of any left ankle disability. The examiner must review all pertinent records in the Veteran's claims file. All necessary tests and studies should be conducted. The examiner must opine as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any diagnosed left ankle disability had its onset during, or otherwise related to, the Veteran's active duty service. In rendering an opinion, the examiner is asked to address the November 1992 and August 1993 x-rays. The November 1992 private radiology x-ray report noted a "tiny chip fracture at the tip of the lateral malleolus." The August 1993 radiology x-ray report noted "an old avulsed fracture at the medial aspect of the talus bone. A complete rationale must be provided for all opinions expressed and conclusions reached. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Young, 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.