Citation Nr: 21071262 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-18 739A DATE: November 30, 2021 ORDER Restoration of service connection for the residuals of a right ankle fracture with traumatic arthritis (right ankle disability) is denied. FINDING OF FACT The grant of service connection for right ankle disability in a June 2007 rating decision was clearly and unmistakably erroneous. CONCLUSION OF LAW The criteria for restoration of service connection for residuals of a right ankle fracture with traumatic arthritis are not met. 38 U.S.C. §§ 1131, 5109A; 38 C.F.R. §§ 3.103, 3.105, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1980 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ). The Veteran appeared at a hearing before the undersigned on November 18, 2020. The Board remanded the issue in August 2021 for additional development and it now returns for adjudication. Propriety of the March 2017 severance of service connection for the residuals of a right ankle fracture with traumatic arthritis. The Veteran contends that the March 2017 severance of service connection for the right ankle disability was improper, and service connection should be restored. Specifically, the Veteran's representative disputed the VA determination that he did not fracture his right ankle while he was absent without leave (AWOL). However, the primary contention is that the right ankle disability is secondary to the service-connected bilateral flat feet. Upon review of the record, the grant of service connection was related to an injury suffered while the Veteran was AWOL, and therefore he did not have the requisite service for that injury. Further, the record does not show that service-connection would have been granted on a separate theory of entitlement but for the error. Accordingly, restoration of service connection for a right ankle disability is denied. Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). VA must assure both that due process has been observed in the process of severance and that CUE exists in the award of service connection. 1. Due Process When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). The initial question for the Board is whether the AOJ followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The AOJ originally granted service connection for residuals of a right ankle fracture with traumatic arthritis in a June 2007 rating decision effective July 20, 2004. In a December 2016 rating decision, the AOJ proposed to sever service connection for this disability. The AOJ stated that the decision to grant service connection for a right ankle disability was clearly and unmistakably erroneous because the Veteran injured his ankle while he was AWOL, and thus the injury did not occur in the line of duty. The AOJ noted that service connection could not be granted for an injury incurred in a period that is not qualifying service. In a March 2017 rating decision, the AOJ severed service connection for a right ankle disability. The AOJ reiterated the findings from the December 2016 rating decision and concluded that severance was proper. The AOJ followed the proper due process steps for severing service connection. The AOJ issued the proposed rating in December 2016, and the Veteran was notified at his latest address of record of this contemplated action and furnished detailed reasons therefor and was given 60 days for the presentation of additional evidence to show that service connection should be maintained in a December 2016 notice letter. The AOJ issued the March 2017 rating decision, which severed service connection prospectively effective June 1, 2017. The resulting period for which the Veteran was in receipt of service connection began on July 20, 2004 and ended June 1, 2017. Importantly, this period is greater than ten years; and thus, service connection cannot be severed "except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge." 38 C.F.R. § 3.957. The error in the instant case is that the Veteran did not have "requisite service" as he was AWOL when the disability was incurred, as will be discussed below. Therefore, the protection of service connection under 38 C.F.R. § 3.957 is not applicable. Notice of this rating decision, plus his appeal rights, was sent to the Veteran on March 22, 2017. The June 1, 2017, date was greater than the last day of the month in which a 60-day period from the date of the March 2017 notice expired. Thus, all due process requirements were met in the severance of service connection for a right ankle disability. 38 C.F.R. § 3.105(d). 2. Existence of CUE in the Award of Service Connection Having met the due process requirements, the remaining question before the Board in this case is whether the grant of service connection for a right ankle disability was clearly and unmistakably erroneous. The Board concludes that the severance of service connection was proper because the AOJ mistakenly believed the Veteran's right ankle injury occurred in the line of duty; therefore, the grant of service connection was clearly and unmistakably erroneous. To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007) (internal citations omitted). A clear and unmistakable error is one about which reasonable minds could not differ. See 38 C.F.R. § 3.105(a)(1)(i). In most respects, the CUE standard for severing service connection under 38 C.F.R. § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006). The original June 2007 grant of service connection for residuals of a right ankle fracture was based on a May 2007 VA examination, wherein the Veteran reported he had right ankle pain that occurred after he jumped from a truck while in service. The examiner opined that the right ankle pain the Veteran occasionally has is at least as likely as not secondary to the ankle fracture [in service], as degenerative joint disease can be due to a fracture, and it causes pain. Turning to the evidence from his service, his service treatment records (STRs) include a note from April 1982 that he had right ankle pain on ambulation and on active range of motion. It noted that he had a past medical history of a fracture to his right ankle after falling off a car on February 17, 1982, and that he had a cast removed on March 31, 1982. The impression was overuse syndrome. A later April 1982 STR noted he had continuing pain, and an x-ray showed spurring in the joint. In July 2013, the Veteran underwent another examination to determine the severity of his then-service-connected ankle disability. The examiner noted that he was diagnosed with a right ankle fracture with residual traumatic arthritis but did not otherwise provide any etiological information. In an August 2013 VA treatment record, the Veteran reported that he was in a motor vehicle accident in 1981 while in service, where he was thrown from a vehicle and fractured his right ankle. In May 2016, the Veteran filed an application for an increased rating for his right ankle residuals. While developing the claim, the AOJ noted that the Veteran had in fact been AWOL for 164 days during his period of active service, including from November 10, 1981 to March 15, 1982. See September 2016 Rating Decision. The AOJ further noted that while in AWOL status, he injured his right ankle jumping off a car. Id. He then took himself to Fort Dix hospital to get treatment, where he admitted to medical staff that he had broken his ankle on February 17, 1982. While there, it was noted he was in AWOL status, he was apprehended, and a summary court-martial was convened. He was then confined and sent to a retraining brigade from April 1, 1982, to April 22, 1982. Id. In connection with separate compensation claims, the Veteran submitted a December 2017 private medical opinion from Dr. Ellis, in which Dr. Ellis noted he had service from January 1980 to June 1982. Dr. Ellis also noted that the Veteran fractured his ankle while in service, and that the Veteran began having pain in his feet while marching, that went into his ankles. Dr. Ellis then opined, among other things, that the Veteran fractured his ankle in service, and it was more likely than not that the service-connected flat feet and knee instability have contributed to more arthritis in the right ankle than the left. Then, again in connection with the left ankle, the Veteran submitted another private medical opinion from Dr. Ellis from June 2019. Therein, he stated that the Veteran had abnormal left ankle biomechanics from favoring his flat feet. He continued that the abnormal gait put more stress on the left ankle causing ligamental tears, and frequent sprains caused injury to cartilage which in turn caused osteophytes and laxity in ligaments. Dr. Ellis opined that it was more likely than not that his left ankle pain and instability were secondary to his service-connected flat feet. In September 2021, the AOJ obtained a medical opinion regarding the relationship between the Veteran's right ankle disability and his service-connected flat feet. The clinician noted a review of the record and opined that the right ankle disability was less likely than not caused or aggravated by the service-connected flat feet. In this regard, the clinician noted that bilateral pes planus does not cause conditions of the ankle, especially impingement and degenerative joint disease. The clinician continued that the gait accomodation for pes planus would also be minimal, as it was bilateral and therefore would affect each ankle equally. Moreover, the clinician opined that a condition of one joint does not cause a condition of another joint of joint system, except for the rare cases of an exaggerated leg length discrepancy and Trendelenburg gait, neither of which are present in the instant case. The clinician noted that same opinion applies for aggravation, as there was no evidence of aggravation of the right ankle disability beyond its natural course due to any cause, including the bilateral, equal pes planus. The clinician specifically noted that the opinion by Dr. Ellis was broad and general, and it did not consider the pathophysiology of the Veteran's right ankle conditions and established orthopedic principles. Initially, the original grant of service connection was a clear error. In this regard, the grant was based on the Veteran's assertions that he fractured his right ankle in the line of duty, while in active service. However, the record clearly and unmistakably refutes his assertion as it shows he fractured his right ankle while he was AWOL in February 1982. The record also shows he returned to service and immediately received treatment for his injury. Having found a clear error, the Board must also inquire as to whether the error manifestly changed the outcome of the decision that granted service connection. Allen, 21 Vet. App. at 58-59. In this regard, the Board turns to the Veteran's argument that service connection is also warranted on a secondary basis. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). The Veteran contends that Dr. Ellis's June 2019 shows by analogy to the left ankle that secondary service connection is warranted. While the Veteran did not cite to the December 2017 opinion from Dr. Ellis, that opinion was directly related to the right ankle, also indicating that the flat feet "contributed to more arthritis" in his right ankle. However, the Board does not afford great probative weight to either opinion from Dr. Ellis. Initially, Dr. Ellis seemingly relied overwhelmingly on the Veteran's statements for his medical history. Notably, while he is competent to report on his own medical history, the record reflects that the Veteran's statements regarding his right ankle injury and course are not credible. Specifically, he continuously reported that he injured his ankle while in active service, however it is shown that he was AWOL when the injury occurred. Further, initially, he related his ankle disability and current symptoms to his in-service fracture, but then only argued in alternative when it was shown the injury occurred when he was AWOL, and his service-connected compensation was severed. See Cromer v. Nicholson, 19 Vet. App. 215 (2005) (finding that a veteran's recent post-service account of in-service events was not credible because the veteran had previously given other histories and theories that did not mention the alleged in-service event, and first "came up with the story" years after service and in connection with the compensation claim); see also Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). Dr. Ellis's opinions show a reliance on this information, as he stated multiple times that the Veteran "[w]hile stationed at Seneca Army Depot in Seneca, New York, he fractured his ankle." This is erroneous. He also included numerous references to the Veteran's ongoing symptomatology after service, a time period for which there are no medical records in the file. Therefore, as the Board finds that Dr. Ellis's opinions were based on statements given by the Veteran, which the Board finds not credible, his medical opinion is given little probative weight. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Furthermore, the September 2021 VA opinion considered Dr. Ellis's June 2019 opinion. In this regard, the clinician did not reference a specific opinion, but it appears in response to the later opinion. The VA clinician refuted Dr. Ellis's opinion, finding it broad and general, and noting it did not consider the pathophysiology of the right ankle or established orthopedic principles. Rather, the clinician provided a complete rationale that the right ankle disorder was not caused or aggravated by the service-connected flat feet. The Board finds the September 2021 opinion highly probative, as it provided clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, the opinion considered and contradicted the earlier opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Board did not err in finding unfavorable medical opinions more probative because the unfavorable opinions discussed why the favorable opinions were not persuasive). Accordingly, the only probative medical evidence of record shows that the Veteran's bilateral flat feet did not cause or aggravate his right ankle disability. Therefore, service connection is not warranted for a right ankle disability as secondary to the service-connected flat feet. In this regard, the Board considered the Veteran's arguments that his bilateral flat feet caused or aggravated his right ankle disability, and notes that he is competent to report experiencing pain and identifying the onset of symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds the Veteran's reports specific to his right ankle injury to be not credible, as discussed. Further, the Veteran is not shown to have any medical training that would qualify him to diagnose a musculoskeletal disorder or provide an opinion regarding the etiology of a musculoskeletal disorder. Here, this question involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, i.e., the etiology of musculoskeletal disorder, such falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Veteran's opinion as to the etiology of his right ankle disability is not competent evidence and, therefore, is afforded no probative weight. As a result, the Veteran's statements are themselves, apart from the medical evidence, not sufficiently probative to rise to the level of equipoise. Given the foregoing, the Board must conclude that the award of service connection for the residuals of a right ankle fracture with traumatic arthritis did involve clear and unmistakable error, as the grant was based on an incomplete review of the record, and the evidence of record does not otherwise support such a grant. Accordingly, the severance of service connection for the residuals of a right ankle fracture with traumatic arthritis on the basis of clear and unmistakable error was proper, and the appeal is denied. D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.