Citation Nr: 21006754 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 17-44 303 DATE: February 5, 2021 ORDER Service connection for a right ankle disability is denied. Service connection for a right knee disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a right ankle disability began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a right knee disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1968 to February 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision. In an April 2019 decision, the Board remanded the claim to obtain relevant medical records that were not associated with the Veteran’s file as well as a VA examination. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Right Ankle Disability Regarding the first element, a current disability, medical records for the Veteran establish a diagnosis of osteoarthritis in the right ankle. This finding was confirmed in a January 2020 Disability Benefits Questionnaire (DBQ) completed by a VA examiner regarding the Veteran’s right ankle claim. Therefore, the Board finds that the Veteran has a current disability satisfying the first element of a service connection claim. However, the second element, an in-service incurrence or aggravation of a disease or injury, has not been met. The Veteran’s service treatment records show a podiatry note in January 1970. This note documents very tender area dorsum of the right side. Further, it was noted that the Veteran showed ¾” shortness of the right leg and an insert was provided. A follow up note in February 1970 stated that the Veteran was pain free. These notes were addressed in the January 2020 DBQ. The examiner stated that it was less likely than not that the Veteran’s current osteoarthritis was related to the Veteran’s service. Specifically, the examiner stated that there was no evidence of any injury that incurred in-service, nor does the Veteran claim that they suffered an ankle injury in-service. Rather, the Veteran’s claim focuses on the finding of leg length discrepancy. However, the examiner stated that there is no evidence to support leg length discrepancy will cause arthritis. Additionally, the Veteran reported in the January 2020 DBQ that she started having right ankle pain in 1989, 18 years after her active service. Further, the Veteran’s medical records show that the Veteran was not diagnosed with osteoarthritis of her right ankle until September 2012, 23 years after the Veteran’s service. This evidence shows that the Veteran’s ankle pain began at the latest 18 years after she left active duty service rather than being the result of some in-service event. This further establishes that there was no in-service injury needed for a service connection claim. As a result, the preponderance of the competent medical evidence is against a finding that there was an in-service incurrence or aggravation of a disease or injury of the Veteran’s right ankle. The claim is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran’s claim. Right Knee Disability Regarding the first element, a current disability, medical records for the Veteran establish a diagnosis of degenerative arthritis of the right knee. This finding was confirmed in a January 2020 Disability Benefits Questionnaire (DBQ) completed by a VA examiner regarding the Veteran’s right knee claim. Therefore, the Board finds that the Veteran has a current disability satisfying the first element of a service connection claim. However, the second element, an in-service incurrence or aggravation of a disease or injury, has not been met. There is no evidence of record showing any injury of the right knee occurring in-service. Rather, the January 2020 DBQ noted that the Veteran first reported knee pain symptoms in 1995, 24 years since service. Further, the Veteran reported that she had no known injury to her knee in-service. The examiner ultimately concluded that the Veteran’s right knee arthritis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the examiner noted the above reports from the Veteran regarding no in-service injury. Further, the examiner also addressed the claim from the Veteran regarding her leg discrepancy. However, the examiner noted that her leg discrepancy was less than 1 centimeter at the time of exam, which is not significant enough to cause chronic problems of the knee. Neither the Veteran nor her representative have submitted any evidence or argument as to why it is believed the Veteran’s right knee arthritis is related to service. Therefore, the Board finds that service-connection is not warranted. As a result, the preponderance of the competent medical evidence is against a finding that there was an in-service incurrence or aggravation of a disease or injury of the Veteran’s right knee. The claim is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran’s claim. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jorge Barroso, 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.