Citation Nr: 21007940 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-25 925 DATE: February 11, 2021 ORDER Service connection for right ankle instability is denied. FINDINGS OF FACT 1. The Veteran has a current disability of right ankle instability. 2. There was an in-service right ankle injury. 3. The current right ankle instability did not have its onset during service and is not otherwise related to active duty service, including the right ankle injury during service. CONCLUSION OF LAW The criteria for service connection for right ankle instability have not been met. 38 U.S.C. §§ 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army during Peacetime from February 1988 to February 1990. Service connection for right ankle instability is denied Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. The Board finds that the Veteran has a current disability of right ankle instability. A VA examination performed in December 2011 diagnosed right ankle instability. See December 2011 C&P Examination. The Veteran contends that the current right ankle instability is the result of wear and tear from basic training during service. See July 2014 Veteran’s Statement. The evidence shows a single ankle strain during service that resolved prior to service separation. During the pursuit of this compensation claim, though inconsistent with multiple other histories presented for treatment purposes, the Veteran has asserted that he experienced pain in the right ankle from 1988 to the present. The evidence shows that when on a run during service around September 20, 1988, the Veteran twisted the right ankle. See September 1988 Service Treatment Records. The injury was diagnosed as a mild strain. The service examiner found no edema or dislocation; no tenderness; no injury to the achilles tendon; good range of motion, including against resistance; and no laxity of the joint. The pain lasted for 10 days. On a periodic physical examination performed during service in October 1989, the Veteran reported no problems with the feet, lower extremities, or other musculoskeletal areas and none were found. See October 1989 Service Treatment Records. The record does not contain a service separation examination; however, the October 1989 periodic examination was performed within four months of separation from service. After weighing all the evidence, lay and medical, the Board finds that the weight of the evidence shows no causal relationship between the current right ankle instability and the mild right ankle strain in service. In the December 2011 VA examination, the examiner opined that the current right ankle instability is not related to the in-service right ankle injury. The rationale was that the injury in service was a minor sprain and that the Veteran had not received any treatment for the ankle for 25 years after the minor sprain. Except for the single mild right ankle strain in September 1988 that resolved without chronic symptoms during service, the service treatment records, which are complete, show no other right ankle complaints or treatment. The Veteran had ample opportunity to seek treatment for other ankle complaints, and similarly did so for joint pain. The service treatment records contain the Veteran’s complaints of back pain, a bee sting, and diarrhea, amongst other reasons for seeking treatment. While the Veteran brought complaints for these other issues, he did not seek treatment for the right ankle after the September 30, 1988 injury and for the rest of service, as evinced by the October 1989 periodic examination within four months from separation. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The span of the medical records – the service treatments records and post-service VA and private treatment records – including histories reported and findings, is consistent with the picture that the ankle disability consisted of a limited, isolated right ankle incident during service, and that right ankle symptoms did not continue after service. The weight of the evidence shows no right ankle symptoms or complaints for years after service. After service the Veteran received private treatment from June 2007 to January 2010 for pain management. The record includes four treatment reports from June 2007 to August 2007; one report in November 2007; two reports in August 2008; and one each in September 2008, November 2008, February 2009, April 2009, July 2009, September 2009, October 2009, and January 2010. All these reports note orthopedic complaints of back pain, but are silent for any right ankle complaints. These histories were presented for treatment purposes and so are of significant probative value, because a person would be expected to give an accurate medical history in order to receive efficacious treatment. See Fed. R. Evid. 803(7). Post-service treatment records from 2011 to 2013 similarly show back complaints and treatment, but no complaints or treatment of a right ankle disorder or even a history of right ankle symptoms since service. A private treatment record from May 2011 notes that the Veteran complained of chronic back pain. The record is silent for any mention of the right ankle. See May 2011 Private Treatment Record. A January 2012 VA treatment record notes that the Veteran has been suffering lower back pain since 1989, but is silent for any mention of the right ankle. See January 2012 VA Treatment Record. VA treatment records from January 2012 through February 2014 are silent for any ankle complaints. Private treatment records in August 2013 include reports by the Veteran that he has suffered back pain since service but are silent for any complaints of ankle pain at any time, including since service. See August 2013 Private Treatment Records. These histories were presented for treatment purposes and so are of significant probative value, because a person would be expected to give an accurate medical history in order to receive efficacious treatment. See Fed. R. Evid. 803(7). While at a March 2014 VA examination the Veteran reported constant use of a brace on his right ankle, the March 2014 VA examiner was unable to find any evidence of a current right ankle disability. The March 2014 VA examination contained a report by the Veteran of no flare-ups of the right ankle; range of motion was normal, and no painful motion was noted; no limitations after repetitive use; no pain on palpation; no functional loss; full muscle strength; no instability; no surgical procedures; no abnormal findings on imaging studies; and a finding that the right ankle was normal. See March 2014 C&P Examination. The imaging studies performed for the March 2014 VA examination noted no degenerative changes in the ankle joint, no fracture, and a tiny spur at the Achilles insertion. See March 2014 VA Treatment Records. The Veteran was examined in December 2014 for compensation purposes for the left ankle, which also included testing on the right ankle. The history, complaints, and findings from the examination regarding the right ankle include: no limitation of motion; no pain with motion; no functional loss with repetitive use; no reported flare-ups; full muscle strength; no ankylosis; no instability; no reported shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus or talus, or a talectomy; no use of an ankle brace on the right ankle as opposed to left; and no crepitus. VA treatment records for 2017 and 2018 are silent for any complaints of right ankle pain. 2019 treatment records include a single mention of bilateral swollen ankles, which resolved themselves the same day. See March 2019 VA Treatment Records. VA treatment records from January to April 2020 are similarly silent for any complaints of right ankle pain. The Veteran was examined in April 2020 for compensation purposes. The VA examiner was unable to make a diagnosis due to a lack of pathology. The examination did show a reduction in range of motion in the plantar flexion as limited to 25 degrees, with some localized pain or tenderness on palpation; however, no pain was noted during motion. There was additional limitation with repetitive use, with limitation to 20 degrees in plantar flexion and to 10 degrees in dorsiflexion. The examiner noted slightly weaker muscle strength in dorsiflexion, but no evidence of atrophy. The VA examiner found no ankylosis, shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus or talus, or evidence of a talectomy. The Veteran did not report use of an ankle brace. In sum, the medical treatment reports do not indicate any chronic or continuous symptoms of ankle disability. The Veteran received constant treatment from 2011 to the present for PTSD and back pain, but never sought treatment for right ankle symptoms. These histories reporting other symptoms but not mentioning right ankle symptoms were presented for treatment purposes and so are of significant probative value, because a person would be expected to give an accurate medical history in order to receive efficacious treatment. See Fed. R. Evid. 803(7). The Board finds that the Veteran’s more recent reports of right ankle symptoms since service are inconsistent with, and outweighed by, other, more contemporary lay and medical evidence of record, so are not credible. The Veteran provided a statement in May 2012 claiming that he was experiencing pain and weakness of the right ankle, and that he had never injured his right ankle except for a right ankle injury during service. See May 2012 Veteran’s Statement. In this same statement, the Veteran did not say that he had experienced right ankle pain since service. Similarly, at the March 2014 examination, the Veteran told the examiner that his right ankle gives out about four times a year. As noted above, the Veteran never sought treatment for either ankle, and during years of treatment for back and other symptoms after service made no mention of right ankle symptoms, and did not seek any treatment for the right ankle. While the March 2014 (right ankle) examination shows the Veteran reported occasional use of a brace on his right ankle, the December 2014 (left ankle) examination shows that the occasional use of a brace was actually for the left ankle. In addition, the Veteran reported to the examiner that he was not prescribed the brace, but had purchased the brace himself. The Veteran received psychological treatment with a private examiner from 2008 to 2014. The Veteran communicated with his doctor by email at times. In a treatment note from September 2012, the Veteran reported to the doctor a torn rotator cuff and a broken ankle (the record does not clarify if it was the left or right ankle). The medical treatment records do not show any complaints or treatments of a torn rotator cuff or a broken ankle. Further, imaging studies performed in March 2014 show no evidence of fractures of either the left or the right ankle. Regardless, this would be a report of post-service right ankle injury, if accurate, so does not support any relationship of current right ankle injury to service. The Veteran’s spouse provided a statement in support of his claims for compensation. The spouse mentions seeing chronic symptoms of PTSD and back pain, but, notably, makes no mention of any ankle symptoms. Weighing all the evidence, lay and medical, the Board finds that there is no causal relationship between the current right ankle instability and the mild right ankle sprain in service that was treated and did not result in chronic symptoms in service or any symptoms after service. The mild ankle sprain was an acute injury, and the Veteran made no complaint, nor sought treatment for, an ankle issue until a diagnosis of ankle instability in December 2011, 21 years after separation from service. After the 2011 diagnosis, the Veteran only complained once of bilateral swollen ankles, in March 2019, and the swollen ankles resolved the same day. For the reasons described above, the Board finds that a preponderance of the lay and medical evidence is against the Veteran’s claim for service connection for right ankle instability, and the appeal must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Charles Plambeck 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.