Citation Nr: 21006265 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-16 596 DATE: February 3, 2021 ORDER Service connection for a left ankle disability is denied. FINDING OF FACT The Veteran’s left ankle disability, status post history of left medial malleolus fracture and left ankle sprain was not manifest in service, is unrelated to service, and was not caused or aggravated by his service connected left knee disability. CONCLUSION OF LAW The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1997 to August 2004. The Board thanks him for his service. He appeals from an August 2010 agency of original jurisdiction determination based on a claim filed in October 2009. He provided testimony during an October 2015 hearing before the undersigned, a transcript of which is being considered in this decision. His appeal was remanded in March 2016 and March 2020. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current left ankle disability. A 2016 VA examiner diagnosed a 2009 left medial malleolus fracture and left ankle sprain. Private medical records show a left ankle medial malleolus fracture in 2009 along with left ankle pain/sprains, including in January 2011, June 2011, and January 2012. VA medical records from 2018 also show that the Veteran underwent left ankle surgery with an arthrotomy for exostosis and achilles tendon debridement surgery in October 2018, after he had complaints or being barely able to walk in June 2018 and a notation in February 2018 that he had a left equinus with a hard stop due to an anterior ankle exostosis impinging on the talar neck. The preponderance of the evidence is against a finding that these disabilities were manifest in service or that they are related to service, including the left ankle injury the Veteran reported occurred while he was working on airfield lighting while deployed to Saudi Arabia in late 2000. See October 2015 hearing testimony. Service treatment records show no left ankle problems. There were right ankle problems reported prior to the Veteran's deployment to Saudi Arabia, incurred in association with playing basketball in January 1999. However, service treatment records are silent for reference to any left ankle problems. Furthermore, on post-deployment health assessment in November 2000, shortly after the claimed in service left ankle injury in Saudi Arabia, the Veteran reported that he was in good health and denied any unresolved medical problems from deployment. Then later, in March 2002 and May 2003, the Veteran denied any recent problems that bothered him. Then, in September 2004, the Veteran claimed service connection for a right ankle strain, saying that it began in February 1999. On VA examination in November 2004, he reported that it occurred while playing basketball 4 years earlier. His left ankle was examined, with no evidence of pain on range of motion being reported. He also had left ankle dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. Per Plate II, 38 C.F.R. § 4.71a, these are normal ranges of motion for the ankle. No left ankle diagnosis was made, but a right ankle diagnosis was made. On VA examination in May 2016, the Veteran reported that he first injured his left ankle while stepping out of a truck in 2000 and that he was able to bear weight following that injury. The first clinical evidence of any current left ankle disability is in August 2009, when the Veteran suffered a strain/sprain of his left ankle associated with a medial malleolus fracture. This assessment was made after the Veteran had been riding his 4-wheeler in August 2009, when he had a crash and sustained a left ankle injury. When the Veteran filed his claim for service connection for left ankle disability in October 2009, he requested that it be considered as related to his service connected left knee disability. Then in December 2009, indicated that he wanted to base his claim on direct service connection, saying that medical evidence would show that his left medial malleolus was broken previously. In April 2014, he stated that he thought back and remembered that in the Air Force, he badly injured his ankle (not specifying which) during physical training, sometime in 1999, he believed. He went to the clinic where they wrapped it and gave him crutches. He asserted that he believed that this was misdiagnosed as a sprain when it was an actual break as evidenced by an X ray Dr. Campbell examined. The Veteran argued that it was misdiagnosed, and that because of that, his ankle never healed correctly, and that this led to the 2009 ankle fracture. His service treatment records, however, correlate this testimony with the occurrence of his right ankle injury in 1999. The Veteran testified in October 2015 that he twisted his left ankle while getting out of his truck while he was going to the airfield lighting vault in Saudi Arabia in 2000. They told him to stay off of it and to ice it, but he was able to limp on it. In July 2020, he reported that he severely sprained his left ankle in Saudi Arabia in late 2000, that he was evaluated at a troop medical clinic where it was wrapped, and that he spent 2-3 weeks on crutches before resuming weight-bearing activities. This is inconsistent with his earlier report in May 2016 that he could bear weight on his left ankle after the injury, and it is noted that he only mentioned this after the Board's remand in March 2020 informed him that weight-bearing ability or not could result in a difference in the outcome of the question of whether there was a prior fracture. Based on the inconsistencies in the Veteran’s statements, when compared with each other and with the other evidence of record noted above, the Board finds the Veteran’s statements with respect to the origins of his left ankle disability are not credible. The preponderance of the evidence is against a finding that the ankle disability noted in and after 2009 is related to the claimed in service left ankle injury. The Board finds the medical opinion of the VA clinician in July 2020 to be highly probative as the clinician reviewed the Veteran's medical records and considered whether the Veteran's current left ankle disability is related to service, and concluded that it was probably not. That VA examiner noted that the Veteran had had a documented right ankle sprain in service in January 1999 as a result of playing basketball, but that the record does not reveal any documentation of the Veteran's claim that he suffered a severe left ankle sprain while deployed to Saudi Arabia in late 2000. Additionally, that VA examiner noted that the Veteran had denied in his service treatment records following deployment that he had any unresolved medical problems, and his deployment to Saudi Arabia was for a brief period of time. The VA examiner in July 2020 indicated that while X rays following the Veteran's August 2009 left ankle injury revealed a left malleolar fracture, and although an August 2009 comment was made by a health care provider that the fracture may have been old because the fragments were not sharp enough to be acute, the VA examiner noted that the X ray was not definitively assessed as such by the interpreting radiologist at the time. The Board notes, a few days later in August 2009, the assessment was of a left ankle strain with “associated new verses old medial malleolus fracture”. The VA examiner in July 2020 felt that the opinions of several health care providers that these X rays showed an old fracture (including because edges were not sharp enough to be acute) are opinions, and not documented facts. One private health care provider from August 2009 had felt that based on the Veteran's history of a severe sprain to the same ankle at a previous time, the fracture may be old, but there is no credible evidence of a left ankle sprain or fracture in service. Other private X rays from September 2009 contain no report of a possible old fracture. The VA examiner in July 2020 felt that the opinion of a May 2016 VA examiner who felt that the Veteran unlikely experienced a fracture of the left medial malleolus at the time of an in service incident because the Veteran reported the ability to bear weight is for the most part true, although a small avulsion fracture would conceivably allow for weight-bearing. The VA examiner in May 2016 had reported that it was unlikely that the Veteran fractured his left medial malleolus in service, because it is a weight bearing bone and it would be difficult to return to normal activity with a fracture. And the Veteran testified in October 2015 that after he twisted his left ankle in service in 2000, he was able to limp on it. He just loosely tied his combat boots and favored it. That being said, the VA examiner in July 2020 felt that the preponderance of the evidence argued against the Veteran experiencing a left ankle fracture in service. And the Board notes that the Veteran's in service declarations in service treatment records are not supportive of, but instead tend to work against a left ankle injury, and that the record shows a normal range of motion of his left ankle on VA examination in 2004, significantly with no left ankle complaints or history reported at the time, but instead with his claim for service connection for right ankle disability, and is silent for any left ankle trouble for years post service, until post-service left ankle injuries in August 2009 required immediate treatment, following a motocross accident. All in all, the preponderance of the evidence indicates that the Veteran did not have a left ankle injury in service. Regarding the question as to whether it is possible to clearly separate the Veteran's participation in competitive motocross from his left ankle fracture in August 2009 and the repeated left ankle pain/sprains in January 2011, June 2011, and June 2012, and whether the pain and sprains could be related to his claimed in service left ankle sprain, the preponderance of the evidence indicates that they are not. The VA examiner in July 2020 indicated that there is no in service sprain of the Veteran's left ankle documented in the service treatment records. Given the service treatment records document right ankle injury, it is expected that a left ankle injury would have likewise been documented. In addition, the 2004 VA examination report that finds normal ankle movement prior to the August 2009 motocross injury does not support a claim of left ankle disability and/or symptoms since service. Regarding the Veteran's October 2015 testimony that he was told that his ankle would not have fractured in August 2009 but for a prior fracture that occurred approximately 10 years prior, the Court has held that "the connection between the layman's account, filtered as it was through a layman's sensibilities, of what a doctor purportedly said is simply too attenuated and inherently unreliable to constitute 'medical' evidence"). Robinette v. Brown, 8 Vet. App. 69, 77 (1995), Beausoleil v. Brown, 8 Vet. App. 459 (1996), Epps v. Brown, 9 Vet. App. 341 (1996), aff’d sub nom. Epps v. Gober, 126 F.3d. 1464 (Fed.Cir. 1997). Last, there is also no basis in the record to permit service connection for the Veteran's current left ankle disability as secondary to his service connected left knee degenerative joint disease. While service connection for the left ankle disability was claimed as secondary to the Veteran's service connected left knee disability, there is no competent evidence of record indicating that the service connected left knee disability caused or aggravates his left ankle disability. As a result, further development responsive to this contention is not warranted.   The preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson 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.