Citation Nr: 21074385 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-23 555 DATE: December 15, 2021 ORDER Entitlement to service connection for a left ankle disability, characterized as residuals of a laceration of the left ankle and degenerative joint disease, is denied. REMANDED Entitlement to service connection for a back disability is remanded. REFERRED The issue of entitlement to service connection for a right ankle disability was raised by the record in May 2014. The Veteran was afforded VA examinations in May 2014 for his left ankle disability. The examiner noted that the Veteran stated that he had a right ankle disability with constant pain surrounding the front and back of his right ankle. The issue of entitlement to a right ankle disability has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). FINDINGS OF FACT 1. The preponderance of the evidence of record reflects that the Veteran does not have residuals of a left ankle laceration, which is due to a disease or injury in service. 2. The preponderance of the evidence of record reflects that the Veteran's degenerative joint disease of the left ankle was not incurred in and is not otherwise related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for left ankle disability, characterized as residuals of a left ankle laceration and degenerative joint disease, are not met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1137, 5107, 38 C.F.R. §§ 3.102, 3.303(a)-(c), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Army from August 1970 to February 1972. These matters came before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in June 2012. In a November 2018 decision, the Board denied the Veteran's application to reopen the previously denied claim for entitlement to service connection for a back disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In February 2020, the Court reversed the November 2018 decision and remanded the matter to the Board for further proceedings consistent with the decision, including adjudication of the reopened back disability claim on its merits. Pursuant to the February 2020 Court decision, the Board reopened the claim of service connection for residuals of a back injury and remanded the issues of entitlement to service connection for residuals of laceration of the left ankle and a back disability to the AOJ for additional development. Subsequently, the issues were returned to the Board in April 2021 for further appellate action, at which time, the issues were remanded to the AOJ for additional development. This case has now been returned to the Board for further appellate action. Service Connection Entitlement to service connection for a left ankle disability The Veteran seeks service connection for a left ankle disability, to include residuals of a laceration, which he asserts is related to service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military 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 disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. 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 discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted based on chronicity or continuity of symptomatology for a disability which is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a), including arthritis. See 38 C.F.R. § 3.303(b). The Board has carefully reviewed the evidence of record and finds that, based upon a preponderance of the evidence, the criteria for service connection for a left ankle disability on any basis are not met. At the outset, the Board notes that a current diagnosis of degenerative joint disease of the left ankle has been established. See March 2014 VA examination. However, the Board notes that the preponderance of the evidence is against a finding of a left ankle scar. See March 2014 VA examination (no scar visualized); September 2019 VA examination (no left ankle scar); But see May 2012 VA examination (s/p left ankle laceration). Although the May 2012 VA examiner indicated that the Veteran had a scar, the examiner did not indicate that the scar was examined, nor did the examiner provide any details regarding the scar, including its location or size. Notably, the Veteran has also denied having a left ankle scar. See September 2019 VA examination. Thus, the Board finds that based upon a preponderance of the evidence, the Veteran does not have a current left ankle scar for VA purposes. Based on the evidence as outlined below, the Board finds that the presumption of soundness has not been rebutted, and the Veteran is presumed to have been in sound physical condition as to his left ankle prior to service. Although, a July 1970 medical history report for enlistment reflects that the Veteran reported that he had sprained his ankle prior to service; the July 1970 medical examination report for enlistment revealed a normal clinical evaluation of the Veteran's feet. The medical examiner noted that the Veteran had a rating of 1 for his physical capacity and lower extremities under the PULHES rating system, which was the highest rating and indicated that his ankle would not result in any limitations in military assignments. See McIntosh v. Brown, 4 Vet. App. 553, 555 (1993); Horn v. Shinseki, 25 Vet. App. 231 (2012). Thus, the Board finds that the examination report for enlistment and the PULHES rating system reveal that the Veteran had normal physical condition of his ankle. The presumption of soundness has not been rebutted and the Veteran is presumed to have been in sound physical condition as to his ankle. Service treatment records reflect treatment for a right ankle condition from at least November 1971. A November 1971 service treatment record reflects that the Veteran had a laceration on the posterior foot over the Achilles tendon. A treatment provider noted that there was a blistered area near the laceration, and it did not produce any drainage. A treatment provider noted that there had been a boil-like lesion over the posterior aspect of the right ankle, which appeared to have been drained previously and was currently resolved. The Veteran's service treatment records do not indicate that the Veteran received treatment for his left ankle. The Veteran was afforded a VA examination in May 2012, which reflected a diagnosis of status post (s/p) left ankle laceration. The VA examiner noted that the Veteran confirmed that the left ankle was the one that had been lacerated by a piece of metal he stepped on while in the field during a unit maneuver in November 1971. The Veteran reported that he sought treatment a few days later when he could not put on his boot. The examiner noted that the Veteran had a scar related to the above condition. However, the examiner did not provide any details regarding the nature of the scar. The examiner opined that it was less likely as not that the Veteran's left foot condition was related to the injury which he sustained and had been treated for in service. The examiner inaccurately noted that the Veteran was treated for a left ankle laceration with infection and noted there were no further notes available. The examiner did not provide any analysis to support their finding that the Veteran sustained a left ankle injury in service, and the examiner did not discuss the November 1971 service treatment record which indicated that the Veteran had a boil-like lesion on his right ankle, which had been previously drained. The Veteran was afforded VA examinations in March 2014, which reflects a diagnosis of degenerative joint disease of the left ankle. The VA examiner noted that no scar could be visualized. The examiner noted that imaging studies of the left ankle revealed degenerative or traumatic arthritis. The examiner opined that it was less likely than not that the Veteran's claimed laceration and left ankle condition were incurred in or caused by the claimed in-service injury, event, or illness. The Veteran was afforded a VA examination in September 2019. The VA examiner noted that the Veteran did not have a left ankle scar. The September 2019 VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted there was no scar and signs of laceration on the left ankle on examination. The examiner also noted that the Veteran denied having a scar on his left ankle. The examiner noted that based upon a review of the Veteran's chart, the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. VA obtained an addendum opinion in March 2021. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that there was no evidence of a left ankle condition, acute or chronic, while in service. The only indication of an ankle condition was a right, posterior laceration/blister, which was treated in November 1971. The examiner opined that there was clearly no nexus for a left ankle condition established in service and it was less likely than not that the Veteran had a left ankle condition which was attributable to service. Furthermore, the examiner noted that in the absence of a traumatic injury of the joint itself or another chronic ankle condition, degenerative joint disease was a naturally occurring condition; and was due to normal wear and tear over time. Therefore, the examiner opined that it was less likely than not that the Veteran's left ankle degenerative joint disease was due to or incurred in service, including the undocumented, claimed injury in service. Additionally, the examiner noted that the separation examinations were notably thorough, and it was unlikely a significant ankle condition would have gone unnoted or unreported. Based on a preponderance of the evidence, the Board finds that there is no nexus between the Veteran's current degenerative joint disease of the left ankle and service. Further, the Board finds that based upon a preponderance of the evidence, the Veteran does not have a current left ankle scar. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges the statements of the Veteran in support of his claim, and notes that lay statements may be competent to support a claim of service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran asserts that in approximately June 1971, he injured or cut his left foot around his Achilles tendon and was treated several times for his foot condition in service; and he has continued to have problems with that injury to the present. See May 2016 Form 9 Substantive appeal. In adjudicating this claim, the Board must assess not only competency of the Veteran's statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (Fed. Cir. 2006). The evidence of record indicates that the Veteran is an unreliable historian. The Veteran has made contradictory statements regarding which ankle had been injured during service. Initially, in December 1977, the Veteran asserted that he injured his right ankle in service. Then more than 30 years later, the Veteran asserted that he had injured his left ankle in service. However, his service treatment records do not document any complaints or treatment for a left ankle condition; they only document complaints and treatment for a right ankle condition in November 1971. Moreover, the Board notes that in a January 1979 rating decision, the AOJ denied service connection for residuals of a lesion on the right ankle. The AOJ noted that the service treatment records indicated that the Veteran had been treated for a boil like lesion on the right ankle in November 1971; and the condition was not found on the Veteran's last examination in January 1972. Although the Veteran disagreed with the findings of the AOJ with regards to the Veteran's claim of entitlement to service connection for a back injury, the Veteran did not appeal the January 1978 rating decision with regards to the Veteran's right ankle condition. Notably, more recently, in September 2019, the Veteran denied that he had had a left ankle scar. The above tends to demonstrate that the Veteran's lay assertions regarding his in-service history of a left ankle injury to be unreliable, and therefore not credible. Based on the foregoing, the Board finds the Veteran has not presented any competent and credible evidence that he had an in-service left ankle injury, including a laceration of the left ankle, or that his current degenerative joint disease of the left ankle had its onset during service. As such, the Veteran has not met the criteria for either presumptive or direct service connection for his claim of entitlement to service connection for a left ankle disability. See 38 U.S.C. §§ 1110, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317; Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. The Board notes that under the provisions of 38 U.S.C. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence regarding a material issue. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a back disability is remanded. The Veteran seeks service connection for a back disability, which he asserts is related to service or to his service-connected neuropathy of the bilateral lower extremities. See August 2021 Correspondence. In January 1978, the Veteran stated that at the time of his injury in service, he did not seek medical attention, but shortly after being released from service, when he had been working in the laundry at the VA hospital, he sought medical attention at a VA hospital. In January 2018, a fellow service-member (Buddy) stated that the Veteran injured his back in July 1971 when a pallet of ammunition fell on top of him. He reported that he took the Veteran to a dispensary; and later that afternoon, the Veteran was brought to the barracks where he was given bed rest and pain medication. The next day, the Veteran returned to the dispensary after experiencing more back pain. The Veteran was released to return to work the following day; and after returning to duty, the Veteran would often complain about his back pain. The Veteran was afforded a VA examination in February 2021, which reflects a diagnosis of degenerative arthritis of the spine and intervertebral disc syndrome (IVDS). The Veteran reported that he injured his back in 1971 when pallets fell on him. The Veteran stated that he sought medical attention at that time, and he was given pain medication and released back to duty. The Veteran also stated that his back condition had continued since his injury. See also August 2021 VA examination (Examination by the February 2021 VA examination). Although the record contains VA examinations and a VA opinion regarding the Veteran's low back disability, the Board finds that it is unable to decide the Veteran's claim based upon the findings of the January 2021 and August 2021 VA examinations and opinion. In February 2021, the VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted that the Veteran reported a back injury during service in 1971 when a pallet of ammunition fell on him. In addition, the VA examiner noted that a buddy statement was submitted in support of the Veteran's complaints of back pain and stiffness following the injury; and that the Veteran sought medical attention for ongoing back pain. The examiner noted that imaging of the lumbosacral spine in 1974 indicated transitional S1 vertebra, with an impression of a normal spine. In addition, imaging of the thoracic and lumbar spine performed in 1977 indicated transitional lumbarized S1, with satisfactory alignment and no spondylosis or spondylolisthesis. The VA examiner noted that lumbosacral transitional vertebrae (LSTV) were congenital spinal anomalies, in which an elongated transverse process of the last lumbar vertebra fuses with varying degree to the "first" sacral segment. In addition, the examiner noted that a January 1972 discharge examination indicated a normal spine. The examiner noted that the Veteran was not diagnosed with lumbar spondylosis until 2017. The examiner opined that there was no evidence that the Veteran's diagnosis of a back disability to include lumbar spondylosis was related to service, including his report of sustaining injury to the back from a pallet that fell on him. The February 2021 VA examiner did not discuss whether the Veteran's lumbosacral transitional vertebrae was a congenital defect or a congenital disease. In addition, as noted the Veteran asserts that his low back disability is related to his service-connected peripheral neuropathy of the bilateral lower extremities. No VA examiner has provided an opinion regarding whether the Veteran's back disability is related to his service-connected neuropathy of the bilateral lower extremities. The Board finds that a supplemental VA opinion is warranted to determine the nature and etiology of the Veteran's back disability. The matter is REMANDED for the following action: 1. Obtain a VA addendum opinion from an appropriate examiner to determine the nature and etiology of the Veteran's back disability. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, including a copy of this Remand, and the examiner should indicate that the record was reviewed in connection with the examination. Based upon a review of the record, the examiner should address the following: 1. whether lumbosacral transitional vertebrae is a "congenital disease" or "congenital defect," (generally, a congenital abnormality that is subject to improvement or deterioration is considered a disease); (a.) If lumbosacral transitional vertebrae is a congenital disease, is it at least as likely as not (a 50 percent or greater probability) that the congenital disease was aggravated by service? (b.) If lumbosacral transitional vertebrae is a congenital defect, was it subject to a superimposed chronic disability (as opposed to an acute increase in pain) during service? If so, please identify the superimposed injury. 2. For any non-congenital low back disability diagnosed, the examiner should address the following: (a.) whether it is at least as likely as not (50 percent or greater probability) that a non-congenital back disability manifested during active duty service, that arthritis was manifest to a compensable degree within one year of active duty service, or that it, is otherwise causally or etiologically related to a period of active duty service. (b.) whether it is at least as likely as not (50 percent or greater likelihood) that a non-congenital back disability is proximately due to a service-connected disability to include radiculopathy of the bilateral lower extremities; (c.) whether it is at least as likely as not (50 percent or greater likelihood) that a non-congenital back disability is aggravated (increase in severity beyond the natural progression of the disorder) by a service-connected disability to include neuropathy of the bilateral lower extremities. In rendering the opinions, the examiner must consider and discuss the statements of the Veteran and his Buddy regarding the onset and continuity of the symptoms of his back disability. The examiner should provide a complete rationale for all opinions expressed and conclusions reached, including a discussion of the facts and medical principles involved. M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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.