Citation Nr: 21068139 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 13-13 408 DATE: November 9, 2021 ORDER Entitlement to service connection for a bilateral ankle disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's bilateral ankle disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1977 to May 1986. This matter was last before the Board in June 2020, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in a July 2021 supplemental statement of the case. The Board finds that VA has substantially complied with the June 2020 Board remand. The Board also notes that the Veteran has been in receipt of a total disability individual unemployability effective April 9, 2014. Service Connection 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. In order to establish service connection for the claimed disorder, 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). Certain chronic diseases, such as organic diseases of the nervous system to include tinnitus, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792 -67793 (Nov. 7, 2002). Service connection can also be established on the basis of continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). However, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). Entitlement to service connection for a bilateral ankle disability The Veteran contends that he suffers from a bilateral ankle condition that is etiologically related to service. At the outset, the Boards notes that the Veteran has been diagnosed with a bilateral ankle disability. See January 2019 and July 2021 VA ankle examinations. Service treatment records show that the Veteran complained of ankle conditions sporadically throughout service. He was diagnosed with cellulitis of both ankles in April 1977. In March 1978, the Veteran was treated for a mild sprain of his right ankle. In July 1979, the Veteran was treated for a left ankle sprain. However, on separation examination in April 1986, the Veteran's lower extremities were deemed to be normal. Post-service treatment records are silent for any complaints concerning the ankle until approximately 2015, nearly three decades following service. The Board notes that the Veteran was examined and sought and underwent care for other conditions with multiple providers noting no issues involving his lower extremities. Following the June 2020 Board remand, the Veteran underwent another VA examination of his ankles in July 2021. He was diagnosed with bilateral lateral collateral ligament sprain. The Veteran reported the onset was during service and that he gets sharp aching pain after a few minutes of walking. Range of motion testing showed plantar flexion to 35 degrees and dorsiflexion to 15 degrees bilaterally. There was evidence of pain on the right with active and passive motion and with passive motion on the left. There was no objective evidence of crepitus or muscle atrophy and the Veteran was not using any assistive device. The examiner opined that it was less likely than not that the Veteran's bilateral ankle disability was incurred in or caused by an in-service injury, event, or illness. The examiner noted the isolated nature of the Veteran's in-service complaints and the decades of time between service and any evidence of the Veteran's current condition. The Board finds the opinion of the July 2021 examiner to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran's bilateral ankle disability is a result of service. The examiner's findings were based on a review of the evidence, including the service treatment records and examination report, which did not substantiate a finding that the Veteran's current ankle disabilities are a result of service. The examiner considered the complete record and the Veteran's contentions, and provided an explanation as to why the evidence does not support a finding that his current disabilities were due to service. Additionally, the VA examiner provided reasoning that is supported by the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Importantly, there is no competent medical evidence to the contrary, and an earlier VA examination in January 2019 also found no nexus. Accordingly, the July 2021 opinion is of significant probative value. Additionally, to the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record. Particularly, post-service treatment records fail to support his contentions. Based on the contents of the Veteran's service and post-service records and his reported history, the Board finds that any contentions regarding continuous symptoms since service are not accurate, and thus, those assertions in this regard are afforded little probative value. Furthermore, the Board has considered the statements from the Veteran asserting, that his bilateral ankle disability is due to service. While the Veteran is certainly competent to report as to the observable symptoms he experienced and his history, he is not competent to diagnose an ankle disability or render an opinion as to the etiology of his current disability since service, because of the medically complex nature of such a diagnosis or opinion. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Put simply, there is no competent, credible, or probative evidence to find that a left ankle disability, first medically diagnosed decades after his separation from service is etiologically related to his active duty service. The best evidence in this case provides evidence against this claim. Accordingly, the Board has considered the benefit of the doubt rule, however, since the preponderance of the evidence is against the claim, the rule is not applicable, and the claim for a bilateral ankle disability must be denied. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see Gilbert, 1 Vet. App. at 54. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.