Citation Nr: 21009313 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 190405-8225 DATE: February 22, 2021 ORDER Service connection for right ankle disability, diagnosed as osteoarthritis, is denied. FINDING OF FACT The Veteran’s right 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. CONCLUSION OF LAW The criteria for service connection for right ankle disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1964 to March 1968. A rating decision was issued under the legacy system in July 2018. In October 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the supplemental claim lane. The agency of original jurisdiction (AOJ) issued a RAMP supplemental claim decision in January 2019, which is the decision on appeal. In the April 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the RAMP supplemental claim decision on appeal. 38 C.F.R. § 20.301. In an October 2019 decision, the Board, in pertinent part, denied service connection for a right ankle disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claim (Court), and in an August 2020 order, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), vacated the Board’s October 2019 decision as it pertained to the service connection for a right ankle disability, and remanded the matter back to the Board for adjudication consistent with the JMPR. Entitlement to service connection for right ankle disability, diagnosed as osteoarthritis. The Veteran contends that service connection is warranted for a right ankle disability. Specifically, the Veteran asserts that he sprained his right ankle during service in 1965, and that he has had persistent pain every day since 1965. See June 2018 VA examination. 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, 5107; 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The January 2019 RAMP decision found that the Veteran has a current diagnosis of right ankle osteoarthritis, and that he suffered a right ankle sprain in June 1965. The Board is bound by these favorable findings. 38 C.F.R. § 3.104 (c). The question for the Board is whether the Veteran’s currently diagnosed right ankle osteoarthritis began during service or is at least as likely as not related to an in-service injury, event, or disease. Turning to the evidence of record, the Veteran’s March 1964 enlistment examination report noted normal feet and lower extremities. In the March 1964 report of medical history, the Veteran denied arthritis, foot trouble, and bone, joint, or other deformity. The reviewing physician noted fracture of right forearm in 1959 and fracture of left knee in 1960. A June 1, 1965 service treatment record (STR) noted that the Veteran jumped off a lifeguard stand to answer phone and twisted his ankle. It noted x-ray showed no fracture, and that he was admitted to ward. It further noted, “It is my opinion that the above injury was incurred in line of duty, was not the result of the patient’s own misconduct and that the resulting disability will be temporary in nature.” A June 4, 1965 STR noted the Veteran was discharged to duty. A June 8, 1965 STR noted, “short leg walker [ineligible] for duration of cast.” A June 17, 1965 STR noted the cast was removed, and that there was considerable swelling and tenderness still present. A new cast was put on. A June 28, 1965 record noted the Veteran’s cast was removed. The STRs are silent for any further treatments or diagnoses related to the June 1985 ankle injury. A June 1967 STR noted, “U.S.S. [ineligible] (PCE-880). Examined this date and found physically qualified for transfer.” No defects were noted. The Veteran’s February 1968 separation examination noted normal feet and lower extremities. Post-service treatment records first document a foot problem in 2001. A March 2001 VA treatment record noted past medical history of plantar fasciitis in the bilateral heels. In a December 2001 VA treatment record, the Veteran reported chronic left Achilles heel pain for the last three years, and that he now experiences it in the right heel. The assessment was bilateral Achilles tendonitis. A January 2002 VA treatment record noted a complaint of bilateral Achilles pain. The Veteran stated he began having problems with his left Achilles tendon in April of 1998. The assessment was chronic bilateral Achilles tendonitis. A May 2003 VA treatment record noted complaint of left heel pain. The Veteran reported pain is worse when he spent extended time standing or walking. The assessment was Achilles tendon pain. In a June 2003 VA treatment record noted pain in left Achilles tendon. The Veteran requested an injection to his left ankle area. In an October 2007 VA treatment record, the Veteran reported stepping on a pointed rock 4-5 weeks earlier. He reported that since then, the dorsum of the right heel has been very painful to walk on as if it was badly bruised. The assessment was right heel pain, and x-ray and podiatry consultation were ordered. In a November 2007 VA podiatry note, the Veteran reported right foot pain for the past 5 weeks. He reported he had periods of less pain when he had a decrease in activity. He denied recent trauma or systemic signs of infection. He reported he has pain with first step out of bed. The assessment was plantar fasciitis, and he was recommended to exercises daily. Heel cups were dispensed. In a January 2008 VA podiatry note, the Veteran reported improvement in his pain with use of the heel cups but that he still had pain with the first step out of bed. The assessment was plantar fasciitis and heel arthralgia was noted as an active problem. He was recommended to continue exercises daily, and to use heel cups. Generally, VA treatment records note heel arthralgia as an active problem from March 2010 to December 2018. The Veteran underwent a VA examination in June 2018. The Veteran reported that he jumped off a lifeguard stand to answer phone and twisted his right ankle on June 1, 1965. He reported the ankle was not broken but had a bad sprain and his ankle was put on a cast until it was removed sometime later. He reported he has had persistent pain in the right ankle every single day since 1965. The examiner diagnosed the Veteran with osteoarthritis of right and left ankles and also noted that he had Achilles tendonitis that flares off and on in both ankles over the last 20 years. The examiner further noted the Veteran’s treatment records documented body mass index (BMI) of: 3/27/01 BMI 43.6; 10/15/07 BMI 45; 03/29/10 BMI 46; 4/17/18 BMI 45.4; and 5/10/18 BMI 45. Imaging studies of the right ankle reflect mild osteopenia, osseous elements appearing in alignment, and moderate degenerative changes and imaging studies of the left ankle reflect mild diffuse osteopenia, osseous elements appearing in alignment, and moderate degenerative changes. After examining the Veteran and reviewing his medical history and the medical literature, the June 2018 examiner opined that the Veteran’s claimed right ankle disability was less likely than not incurred in or caused by the claimed in-service right ankle sprain. The examiner explained that while the Veteran suffered a major right ankle sprain during service, his records did not show a chronic right ankle disability. Specifically, the Veteran claimed that his pain in his ankle since service was in the lateral ankle, but since the Veteran began VA care in 2001, he had reported very specific complaints of left and right Achilles tendon pains but had not complained of pain in lateral right ankle. The examiner also explained that imaging studies of the right ankle showed degenerative joint disease (DJD) of moderate severity, his left ankle also shows DJD of equal severity and that it was less likely as not that the right ankle DJD was due to the in-service ankle injury as the condition of the left ankle was the same. The examiner then opined that it was more likely that the Veteran’s bilateral ankle DJD was due to age, general wear and tear, and morbid obesity, with his current BMI of 45 and his BMI over 40 for at least 15 years. The examiner explained that the daily strain to the ankles year after year due to obesity was more likely to be the major driver in the findings of DJD rather than the remote injury to the ankle in 1965. Given the foregoing, the Board finds that the Veteran’s right ankle disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran has a current diagnosis of right ankle osteoarthritis as evidenced by the June 2018 VA examination. Osteoarthritis is an enumerated condition under 38 C.F.R. § 3.309(a). However, VA treatment records show the Veteran was not diagnosed with right ankle osteoarthritis until June 2018, decades after his separation from service and decades outside of the applicable presumptive period. While the Veteran is competent to report experiencing symptoms of pain since 1965, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s separation examination is silent for complaints of right ankle pain and his assertions that he has had right ankle pain are internally inconsistent with his contemporaneous treatment records which show numerous complaints of heel pain, plantar fasciitis, and Achilles pain but no complaints of the lateral ankle pain he described during the VA examination. Rather, the earliest complaints of right lateral ankle pain the Veteran states he has had since service is the filing of his claim in December 2017. While the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, the Board may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Service connection for right ankle disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s current right ankle osteoarthritis and the right ankle sprain during service. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Board finds the June 2018 VA examiner’s opinion is persuasive. The opinion is informed by a thorough review and analysis of the Veteran’s service treatment records, post-service treatment records, and medical literature. The examiner's opinion reflects clear and unequivocal conclusions regarding the relationship between the Veteran’s in-service right ankle sprain and his post-service complaints of pain in his lateral right ankle. Thus, the opinion carries significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no medical opinion of record to the contrary. While the Veteran believes his current right ankle disability is related to an in-service injury, event, or disease, including the 1965 ankle sprain, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education and knowledge of the interaction between multiple organ systems in the body. Jandreau, 492 F.3d at 1377 n.4. Consequently, the Board gives more probative weight to the June 2018 VA examiner’s opinion as discussed above. In short, the preponderance of the evidence is against finding that the Veteran’s right ankle disability began in service or is otherwise related to an in-service event, injury, or disease. There is no doubt to be resolved and service connection for right ankle disability, diagnosed as osteoarthritis, is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. STEPHANIE M. OWEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jake Choi 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.