Citation Nr: 21006979 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-02 721 DATE: February 8, 2021 ORDER Entitlement to service connection for a left ankle condition is denied. Entitlement to service connection for a right ankle condition is denied. Entitlement to service connection for kidney disease as secondary to a bilateral ankle condition and a service-connected low back disability is denied. FINDINGS OF FACT 1. The Veteran’s left ankle condition is not related to service. 2. The Veteran’s right ankle condition is not related to service. 3. The Veteran has not had a current kidney disease disability throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ankle condition have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for a right ankle condition have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for entitlement to service connection for kidney disease as secondary to a bilateral ankle condition or a service-connected back disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty service from December 1970 to July 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) pertaining to service connection for bilateral ankle condition, and from a March 2017 rating decision pertaining to service connection for kidney disease. In the April 2020 Board remand, the RO was requested to provide examinations for the Veteran’s disabilities. In July 2020, he underwent VA ankles and kidney examinations and medical opinions were provided. The examinations were adequate because the Veteran was examined, the record was reviewed, and the opinions were accompanied by well-reasoned rationales. Therefore, there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board remanded the Veteran’s claim for service connection for a back disability. In the September 2020 rating decision, the RO granted service connection for the Veteran’s back injury. Because that decision represents a full grant of the benefit sought, that issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Neither the Veteran nor his representative have 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). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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 of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A veteran is entitled to the benefit of the doubt, standard of proof for benefit claim decisions. 38 U.S.C. § 5107(b). The benefit of the doubt is applicable when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a left ankle condition is denied. 2. Entitlement to service connection for a right ankle condition is denied. The Veteran contends his bilateral ankle condition is related to service. In particular, in the February 2020 Board hearing, he testified that he fell 10 feet from monkey bars resulting in sprained ankles during basic training. VA treatment records from October 2008, December 2008, and November 2009 note diagnoses of degenerative joint disease (DJD) of both ankles. Other treatment records also note diagnoses of ankle sprain and instability. The nexus requirement of a service connection claim may be satisfied by evidence that a chronic disease subject to presumptive service connection (here, arthritis) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The most probative medical evidence of record does not show that the Veteran had arthritis within one year of separation from service. The Veteran does not assert that he had arthritis within one year of his separation from service. The Veteran asserts that he fell from monkey bars during basic training and that he injured his ankles. The Board finds his assertion credible but for reasons discussed below, concludes that his current ankle disabilities are not due to his in-service injury. In September 2008, the Veteran had a podiatry consultation at the Wade Park VA medical facility. He reported bilateral ankle pain, right worse than left. The podiatrist noted, "[p]atient relates that he injured and sprained his right ankle from jumping out of trucks when he was in service." In a December 2008 podiatry follow up note, he stated that his pain had decreased. The podiatrist noted, “[h]e admitted to history of use and abuse during service in the military and states he has sprained his ankle multiple times in the past.” Diagnoses were bilateral ankle pain and DJD of the ankles. In February 2009, the Veteran’s treating VA physician stated that the Veteran has been treated by Wade Park Podiatry for “ankle arthritis setting in after ankle injuries while in the military.” An October 2011 VA primary care note shows that the Veteran reported hearing loss, ankle arthritis, low back pain “from injuries he claimed to have received in the military in basic training, he slipped off the monkey bars during an exercise while in the military and claims he injured his back and ankles.” The provider noted that the Veteran made the appointment because he wanted an increase in benefits and otherwise the provider was “… not sure why p[atien]t was here today, except as above.” In May 2016, the Veteran told his VA nurse practitioner that he thought his ankle disabilities were due to his fall from monkey bars in service. The Veteran underwent a VA examination in July 2020. In the July 2020 VA medical opinion, the VA examiner opined that the Veteran’s bilateral ankle condition was less likely than not incurred in or caused by the claimed in-service injury. The VA examiner explained that the Veteran served from December 1970 to July 1972, and that he sustained a left ankle sprain in June 1975. The injury was reported on a quadrennial examination. The VA examiner noted that the left ankle sprain incurred at work, and there is a lack of sufficient information noting ankle sprains having been incurred during his period of service. Overall, the VA examiner reasoned that the left ankle sprain was outside the Veteran’s period of service, and there is no sufficient information supporting left ankle instability incurred in service. Similarly, the VA examiner referenced that the Veteran was seen for bilateral ankle pain in June 2008 by Primary Care where bilateral degenerative ankle joint disease was noted. However, the VA examiner reasoned that the Veteran’s medical record lacks sufficient information to support a right ankle sprain that incurred during the period of service. Based upon review of the record, the Board finds the Veteran’s bilateral ankle condition is not related to service, including due to his fall from monkey bars during basic training. The July 2020 VA medical opinion is probative because it is based on examination of the Veteran and complete review of the medical record. Also, the VA examiner provided a sufficient rationale for the negative etiology of the Veteran’s bilateral ankle condition. Less probative weight is given to the VA treatment records from 2008 and May 2016 and the February 2009 statement from the Veteran’s physician because they do not provide a rationale for the conclusion that the Veteran’s bilateral ankle condition incurred during service. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The Veteran is competent to report he injured his ankles during service resulting in pain. While the Veteran is competent to report symptoms and observations, he is not competent to provide an opinion as to the etiology of his bilateral ankle condition because such a question is not answerable by the application of knowledge within the realm of a lay person. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cr. 2007). This determination requires medical inquiry into biological processes, anatomical relationships, and physiological functioning. The record does not show that the Veteran has the training, skills, or expertise needed to provide a competent opinion for his ankle disabilities. Therefore, the Board assigns low probative weight to the Veteran’s lay statements. Given that the preponderance of the evidence is unfavorable to the claim, VA’s benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.1. Accordingly, the Board finds the preponderance of the evidence is against the claim and service connection is denied. 3. Entitlement to service connection for kidney disease as secondary to service-connected back injury, and bilateral ankle condition is denied. The Veteran contends his kidney disease is due to his service-connected back injury, and bilateral ankle condition. In particular, in the February 2020 Board hearing, he testified that he took a blood test at a VA medical clinic and was informed that his kidney disease is due to medicine he took for his back and ankles pain—ibuprofen. Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection for a bilateral ankle disability has been denied above in this decision. Therefore secondary service connection cannot be granted for a kidney disability that is caused or aggravated by the bilateral ankle disability. The Board will consider whether the Veteran has a kidney disability that is caused or aggravated by his service-connected back disability. In the May 2016 VA treatment record, the Veteran expressed concern that more pain medications may cause kidney problems. The Veteran underwent a VA kidney examination in July 2020. The Veteran “notes that he was told that he had kidney problems. He states that he was told the ibuprofen that he was taking causes kidney problems.” The examining physician noted that diagnostic testing was done in July 2020 and all tests were normal. The examiner concluded that he did not have, and had never been diagnosed with a kidney condition. In the July 2020 VA medical opinion, the VA examiner opined that the Veteran does not have an established kidney disease, and there is a lack of evidence to support a chronic kidney disease diagnosis. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the record does not indicate the Veteran has a confirmed kidney diagnosis; only a noted concern for future kidney problems due to increased pain medication. Service connection is not precluded solely when there is no diagnosis, if there is nevertheless functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Here, there is no probative medical evidence to establish the Veteran had problems with his kidneys that cause functional impairment of earning capacity, nor has the Veteran so asserted. Lastly, the Veteran does not contend, nor does the evidence show, that his kidney disease is directly related to service. Throughout the appeal period, he has specifically requested service connection for kidney disease, secondary to his back injury and bilateral ankle condition and has not advanced any other theory of entitlement. Therefore, service connection for kidney disease is not warranted. (Continued on the next page)   Accordingly, the Board finds the preponderance of the evidence is against the claim and service connection is denied. See Alemany, 9 Vet. App. at 519 (1996); 38 C.F.R. § 3.102. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, 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.