Citation Nr: 21076223 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 14-11 894 DATE: December 22, 2021 ORDER Service connection for a low back disability is denied. Service connection for a left ankle disability is denied. FINDINGS OF FACT 1. The Veteran's low back disability was not shown as chronic in service and 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. 2. The Veteran's left ankle disability was not shown as chronic in service and 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. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). 2. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to October 1978 and from July 1980 to March 1988. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. In May 2018, August 2020, and January 2021, the Board remanded the Veteran's appeal to the RO for further evidentiary development. A. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claims. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). B. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to direct service connection requires evidence of three elements: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In some cases, when a disease listed in 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When 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). The Veteran has been diagnosed with degenerative disc disease and degenerative joint disease of the back. The Veteran has also been diagnosed with left tarsal tunnel syndrome, status post-release and mild degenerative changes of the left ankle. Thus, the Veteran has a current disability of the low back and left ankle. The Veteran's service treatment records (STRs) document lumbar strain and repeated instances of low back pain, including in July 1975, November 1977, January 1978, June 1978, and multiple times in 1983. Similarly, the Veteran's STRs show that he had pain in his ankles. The Veteran testified at the Board hearing that part of his duties during service included driving an amphibious vehicle. The Veteran added that he lifted heavy objects such as the tracks and the hood of an amphibious vehicle. The Veteran explained that he suffered a back injury when he attempted to lift and hold the hood of an amphibious vehicle. The Veteran stated that he hurt his ankles as a result of playing football at Camp Pendleton. The Veteran is competent to provide evidence regarding the facts or circumstances of what he experienced in service. The Veteran's DD-214 shows his military occupational specialty to be an assault amphibian crewman and infantry weapons repairer. Additionally, his DD-214 documents that the Veteran was stationed at Camp Pendleton. The Board finds the Veteran's statements regarding an injury to his low back and left ankle during service to be credible, as they are consistent with the circumstances of his service as reflected by his STRs and DD-214. 38 C.F.R. § 3.159(a)(2). Therefore, the second element of the claims of service connection is met. What remains to be established is whether there is a relationship between the Veteran's service and his disabilities. In February 2021, a VA examiner concluded that it was less likely than not that the Veteran's low back disability was incurred in or caused by the claimed in-service injury, event, or illness, including the noted episodes back pain while in service. The examiner also stated that the Veteran's complaints in service were not caused by a hood slamming down on him as reported since any such injury would have been readily apparent at the time of the injury. The examiner noted that imaging findings are not consistent with such an injury. The examiner further discussed the Veteran's multiple episodes of in-service treatment for back pain and noted that the Veteran was re-accepted for active duty in 1982 after the complaints of back pain during his first period of service and that he served five additional years after the multiple 1983 complaints without evidence of a chronic back condition. The examiner noted that the separation examinations were thorough and that it was unlikely a significant back condition would have gone unnoted or unreported on those examinations. The examiner further explained that it is accepted medical knowledge and practice that back strain does not cause degenerative spine disease. The examiner noted that the events in service were almost certainly related to muscle spasm or strain and were acute and self-limited. The examiner explained that the Veteran's diagnosed back conditions were the result of age-related normal wear-and-tear. The examiner specified that greater than 50 percent of the men over age 50 will have evidence of degenerative spine disease with the percentage increasing rapidly after 60 years of age. In February 2021, a VA examiner provided a negative nexus opinion concerning the Veteran's left ankle disability. The examiner explained that the Veteran's in-service football injury and pain in his ankles were acute and self-limiting and did not result in his current left ankle disability. The examiner reported that the degenerative changes in the Veteran's left ankle were the result of the normal aging process. As part of the rationale provided, the examiner noted that the absence of a problem during six years of active duty or at separation strongly suggests resolution of the conditions that arose earlier during service and that they were acute, self-limited and had resolved by the time of his last active duty period. The examiner noted that the tarsal tunnel is inferior to the medial malleolus and is unlikely to be involved in an eversion injury typical of ankle sprains. The examiner further explained that in the absence of joint disruption an inversion injury is unlikely to involve the tarsal tunnel and that there is no evidence of a chronic ankle injury, left or right, while in service to cause any impingement, medially or laterally. The Board concludes that a preponderance of the evidence is against a finding that the Veteran's service caused his low back or left ankle disability. In reaching this conclusion, the Board assigns substantial weight of probative value to the February 2021 opinions. The Board affords the February 2021 examiner's conclusions that it was less likely than not that the Veteran's low back and left ankle disabilities were caused by the Veteran's service significant weight of probative value because the examiner's opinions are based on a thorough review of the evidence of record, are well-reasoned, and supported by medical evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The only other medical evidence in support of the Veteran's claims is a February 2018 opinion from a private provider. The provider stated that the Veteran suffered back and heel contusions during service and that the Veteran's pain was the result of the Veteran's service. The Board affords this opinion no weight of probative value. The provider's rationale is limited to a conclusory statement. As such, this opinion is not entitled to any weight of probative value. See Nieves-Rodriguez, 22 Vet. App. 295; Stefl, 21 Vet. App. 120. The only other evidence in support of a relationship between the Veteran's service and his current low back and left ankle disabilities are lay statements. The Board finds that the Veteran's and other lay evidence causally relating his low back disability and his left ankle disability to his service are not entitled to any probative weight. The question of whether the Veteran's service resulted in his current low back and left ankle disabilities is a complex medical question not capable of lay observation and is not otherwise the type of medical question for which lay evidence is competent evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Generally, lay testimony is not competent to prove that which would require specialized knowledge or training."). The Board has also considered whether the Veteran is entitled to service connection under presumptive service connection or based on continuity of symptomatology. The Board recognizes that arthritis is listed as a chronic disease in § 3.309 and is therefore subject to presumptive service connection. However, there is no indication that the Veteran's low back or left ankle arthritis manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran was discharged from active duty in March 1988, and the earliest indication of back and ankle disabilities occurred approximately 18 years after, during VA treatment in 2006. Consequently, the Veteran's arthritis did not manifest to a compensable degree within one year of discharge from service. Likewise, the Board has considered and rejects continuity of symptomatology. As explained above, approximately 18 years lapsed since the Veteran's honorable discharge from active duty to the first indication of a low back or left ankle disability. The Board acknowledges that the Veteran indicated that he suffered from low back pain and left ankle pain for many years. Additionally, the Veteran's STRs document the presence of low back and left ankle pain. However, conditions indicative of low back or left ankle arthritis were not noted in service. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). The evidence does not sufficiently identify a disease entity or establish chronicity in service; thus, it is not necessary to further address the evidence regarding continuity of symptomatology. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1339. In conclusion, the criteria for service connection for a low back disability or a left ankle disability have not been met. The Board has considered the benefit of the doubt doctrine, but as the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Patel, Associate 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.