Citation Nr: 21010644 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 12-11 534A DATE: February 25, 2021 ORDER Entitlement to service connection for a right ankle disability is denied. FINDING OF FACT The Veteran has been diagnosed with a right ankle sprain during the appeal period, but the preponderance of the evidence is against finding that his right ankle disability is etiologically related to his active military service. CONCLUSION OF LAW The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1101, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to February 1973, and from February to May 1980. The second period of service was under less than honorable conditions and was deemed a bar to benefits. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. By way of history, in June 2017, the Board denied service connection for the right ankle condition. The Veteran subsequently appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC/Court). In October 2018, the Court issued a memorandum vacating and remanding the case back to the Board. The order stated that the Board erred by not providing a sufficient statement of reasons or bases in finding the Veteran’s right ankle condition was not related to service, as the decision relied on the absence of medical records to find that there wasn't a continuity of symptomatology since service. In May 2019, the Board remanded the claim to obtain the Veteran’s private medical records and to then obtain an addendum medical opinion. Specifically, the remand directives requested the RO contact the Veteran and ask him to identify the names, addresses, and approximate dates of treatment from any private provider regarding the right ankle and ask him to complete releases authorizing VA to obtain those records. Then, the RO was to request an opinion regarding whether his current right ankle condition is related to the right ankle injury in service. The claim was again remanded in October 2020, as the post-remand development letters were sent to the wrong address, so following the 2020 remand, the RO sent the Veteran a development letter in October 2020 requesting the aforementioned information, but the Veteran did not respond. As discussed in Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), “[t]he duty to assist is not always a one-way street” and if the Veteran desires help with his claims, he must cooperate with VA’s efforts to assist him. As such, the Board finds the RO complied with the remand directives to the extent possible. To the extent the record is incomplete in any way, that is a direct result of the Veteran’s failure to cooperate with developing his claim. Other than as immediately discussed, the Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. 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). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens, 814 F.3d at 1361, that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1381. Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Here, the Veteran contends he is entitled to service connection for a right ankle condition. As such, the question for the Board is whether the Veteran’s current right ankle disability began during service or is at least as likely as not related to an in-service injury, event, or disease. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 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). Elements of service connection may also be established by showing continuity of symptomatology under 38 C.F.R. § 3.303 (b). Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316 ; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). However, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309 (a), such as arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, at 53. Upon review of all the evidence of record, both lay and medical, the Board finds that the preponderance of the evidence is against finding that the current ankle disability is related to or caused by the Veteran’s military service. First, the January 2016 VA examination showed a current diagnosis for lateral collateral ligament sprain of the right ankle since 2012. However, ankle sprains are not included on the list of chronic diseases under 38 C.F.R. § 3.309(a), so service connection for that condition may not be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service. Walker, 708 F.3d 1331, 1338-39. That notwithstanding, the Board acknowledges that the record contains some evidence of “very mild arthritis near the ankle joint area.” See August 2015 VA Radiology Report; January 2016 VA Examination (noting that diagnostic imaging studies indicate that “degenerative or traumatic arthritis” is present). As arthritis is included on the list of chronic diseases under 38 C.F.R. § 3.309(a), service connection for that condition may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service. Walker, 708 F.3d 1331, 1338-39. Here, the Veteran has claimed continuous right ankle pain since the initial injury. See, e.g., June 2015 Board Hearing. However, the Board finds that there is no persuasive evidence showing the condition became chronic during service or manifested to a compensable degree within a presumptive period, and continuity of symptomatology is not established. Specifically, while the Veteran is competent to report having experienced symptoms of ankle pain in service and since service, he does not have the requisite medical knowledge or expertise to be deemed competent to provide a diagnosis in this case or determine that these in-service symptoms were manifestations of the later diagnosed ankle disorder. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d 1372, 1377. Further, the record is devoid of complaints or treatment for right ankle pain until several decades after his active service and the Veteran’s private treatment records from 2007-2009 affirmatively indicated that he had normal joints and no complaints of joint pain other than “a stiff right shoulder.” While he has testified that he sought treatment for right ankle pain (and removal of a cast) within one year after service, VA has been unable to locate any records and the Veteran has supplied none. Even accepting this testimony as evidence of right ankle pain, the available treatment records show significant gaps in time between complaints of right ankle pain and also include explicit denials of a continuous right ankle problem. See, e.g., Private Treatment Records; VA Treatment Records, generally; 38 C.F.R. § 3.303(b) (“This rule does not mean that any manifestation of joint pain...in service will permit service connection of arthritis...first shown as a clear-cut clinical entity, at some later date.”). Most importantly, the evidence establishes that the Veteran was first diagnosed with arthritis of the right ankle roughly three decades after his active service with long periods without complaints in the interim. The evidence is against finding that the Veteran had a continuity of symptomatology of right ankle arthritis since his active service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding that the Board may consider failure to report symptoms for many years). While he is competent to report symptoms, his allegations are not credible in light of the medical records showing treatment for other joint-related complaints and a denial of any other joint problems prior to his filing of a VA compensation claim. The Board notes that the Veteran’s service treatment records (STRs) show evidence of an event in service of care in March 1980 for ankle pain of two weeks duration. Achilles tendonitis with crepitus was diagnosed, and it was treated with hot soaks, heel lifts and elastic anklet. In a follow up, it was noted that he had no swelling, no crepitus, and normal active range of motion. The diagnosis was mild Achilles tendonitis and he was advised to continue with moist heat and heel pads. The Veteran has argued this injury caused him pain and continuity of symptoms to the current condition. However, in March 1980, the same month of this treatment, the Veteran was undergoing separation recommendations due to his fraudulent entry when re-enlisting and for his learning disability (NOT for any physical disability reason). Importantly, when it was determined he was to be separated from service, in March 1980, it was noted that the Veteran himself elected to not undergo a medical examination before separation, and it was noted that his medical records were reviewed and it was determined that a medical examination would not be required. If he had indeed been in a leg cast and broken his ankle as he stated during his sworn testimony, his medical records would have indicated this and not stated the above. This is such a significant event that it surely would have been noted in the contemporaneous medical records, and it is inconceivable that the service would have determined an examination was not needed if he were, in fact, in a cast at his discharge. Further, there is simply no indication that the Veteran was ever in a cast or that he broke his leg, or ankle, for that matter. Regardless, the Board must also consider whether service connection for the ankle disability may still be granted on a non-presumptive direct-incurrence basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s ankle condition and an in-service injury, event or disease. See 38 U.S.C. § 1110; Holton, 557 at 1366; 38 C.F.R. § 3.303(a), (d). In the January 2016 VA examination, it was noted that the Veteran had a current right ankle sprain. The examiner noted that the Veteran reported that he had fallen into a fox hole during military service and that his current condition is due to this injury. The examiner noted that there “is evidence of an acute right ankle injury in 1980 while in military service” but also noted that there “is no evidence of a chronic right ankle disability after his separation from military service until documentation of right ankle pain in 2009.” The examiner discussed the Veteran’s post-service job working in a carpenter shop and driving a truck for 20 plus years “which would require climbing into and out of the truck [but] there is no evidence of limited activity nor treatment for his right ankle until…30 years after his discharge.” As such, the examiner opined that the Veteran’s injury in 1980 had no permanent residuals or chronic disability as shown by the evidence, and therefore, the right ankle condition is less as likely as not due to the remote acute right ankle injury in service. Following the Court memorandum, an addendum opinion was requested, with consideration of the Veteran’s reports of having pain since service and that he had been in a cast and worn a brace since. In January 2020, a VA examiner noted a review of the medical evidence as well as the conflicting medical evidence and the 2019 Board remand. The examiner stated that after reviewing the Veteran’s contentions, that the Veteran had reported sustaining a fracture in service, but that the STRs actually show that he was seen for ankle pain in 1980 and was seen a month later when the pain had not resolved and was then diagnosed with mild Achilles tendonitis with conservative treatment advised and use of modalities. However, the examiner explicitly stated that “there was no documentation of a fracture to the ankle in the [Veteran’s] service treatment record.” The examiner further opined that the condition that is in the STRs of mild Achilles tendonitis “is not expected to have residuals in the ankle 30 years from injury” and therefore, the current condition is less likely than not related to his military service.” In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this case, the Board finds that the above VA opinions are probative. Specifically, the Board finds that the examiners were aware of the Veteran’s medical history, provided a fully articulated opinion, discussed the in-service condition, noted the post-service labor related-job with no complaints to the ankle, considered the conflicting evidence, and furnished a reasoned analysis for the conclusions. The examiners also accepted the circumstances of the in-service ankle pain as described by the Veteran and shown in his service records, but still found such ankle pain was not related to the current condition. The Board therefore attaches significant probative value to these opinions. There are no other opinions to the contrary. In favor of the claim is the June 2015 sworn testimony from the Veteran during the Board hearing. He stated that he broke his leg during basic training in his second period of service. He also stated that he had been in a cast for 4-6 weeks, and was told he could not finish boot camp until that was healed but then he was released before that happened. Regarding the Veteran’s testimony that he experienced an ankle injury wherein he was in a cast during service, he is competent to report in-service injuries based on his recollections and first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Regarding credibility, the Veteran’s assertion that he experienced an in-service ankle injury is not on its face incredible. Rather, it must be weighed in light of other evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); King v. Shinseki, 700 F.3d (Fed. Cir. 2012). To the extent that the Veteran’s STRs fail to corroborate his contentions that he experienced an in-service ankle/leg break and had residuals thereafter, the Board notes that the absence of evidence does not automatically constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Buchanan, 451 F.3d at 1336-37 (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). In order to find that silence in the record contradicts lay testimony, the Board “must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.” Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231, 239, n.7 (2012) for the proposition that “the absence of evidence cannot be substantive negative evidence without ‘a proper foundation... to demonstrate that such silence has a tendency to prove or disprove a relevant fact.’”). That foundation may be laid by a finding that the fact at issue would ordinarily have been recorded, in which case the Board may legitimately infer from the absence of such a record that it did not occur. See id.; Buczynski, 24 Vet. App. at 224 (noting that under Federal Rule of Evidence 803(7), “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”); Cf. AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013) (noting that the Federal Rules of Evidence, including section 803(7), while not controlling in the adjudication of VA benefits claims, provide “useful guidance,” and quoting federal case law to the effect that “[t]he absence of a record of an event which would ordinarily be recorded gives rise to a legitimate negative inference that the event did not occur” (internal citation omitted)). In this case, as noted above, the Veteran’s lay testimony contradicts his STRs and military personnel records, which noted he had ankle pain and the diagnosis was Achilles tendonitis, with no mention of a fracture or a break. Further, there was no indication that he was in a cast but rather was advised conservative treatment with modalities – and when the Veteran himself waived a separation examination right after the injury, an officer reviewed his medical records and deemed one was not required. Had the Veteran been in a cast from a broken leg or ankle, this would have been noted and an examination would not have been waived. Again, this is such a significant medical finding that if it had occurred it would have been noted, and the absence of such a notation heavily weighs against the Veteran’s allegations. Further, although the Veteran has alleged that he believes his current right ankle condition is related to his service from the March 1980 injury; he is not competent to provide such a nexus opinion. Although lay persons are competent to provide opinions on some medical issues, the specific disability in this case falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d 1372. Musculoskeletal issues require specialized training and medical diagnostic testing for a determination as to diagnosis, and they are not susceptible of lay opinions on etiology. There are many different possible musculoskeletal issues, and a layperson is not competent to diagnose among them or to provide an etiology. The Veteran is not competent to provide a medical opinion. Furthermore, the benefit of the doubt rule is only for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. See 38 C.F.R. § 3.102. That evidence must be both competent and credible. Here, there is no such balance of evidence. The medical evidence is more probative as to onset of the ankle condition, since the earliest records of any ankle pain complaints did not begin until three decades after service. Specifically, the Veteran claimed he had been receiving VA medical care since service; but yet, VA treatment records are silent for diagnosis of or treatment for any musculoskeletal right ankle condition until May 2009 when he established as a new patient at that facility. Specifically, he reported complaints of back and leg pain that had begun 6 months earlier, and it was noted that the Veteran had a history of ankle pain from service, but the assessment was that the current complaints were different from the old ankle pain. His private medical records also consistently indicated he had normal joints and muscles and he denied any leg pain or joint issues other than the right shoulder. Moreover, with the exception of filing a claim, he has not put forth any details regarding how his right ankle condition is related to service other than asserting he has had continuous pain since the 1980 injury – but has not provided any other evidence to support his claim. These more contemporaneous medical records are far more credible than the statements he makes now, since it is reasonable to expect one would report chronic ankle pain and the need to constantly wear an ankle brace to their medical providers, if that were the case. Although he states he has had ankle pain ever since service, the fact is, based on the available records, the Veteran himself consistently reported not having ankle or joint or muscle pain until several decades after service. The Board also remanded his claim twice in order to provide him the opportunity to submit medical evidence to support his assertions, but he has not responded. Additionally, based on the above contradictory contentions, to the extent the Veteran has asserted continuity of symptomatology since service, the Board does not find him credible based on these contradictory assertions. The Board finds the documented medical history, to include the Veteran’s STRs, military personnel records, and ongoing VA medical records which showed that while his right ankle was injured in service, these records are in direct conflict with the Veteran’s statements that he broke his leg and was in a cast for weeks. Rather, that same month, his military personnel records show that based on the recommendation for separation due to fraudulent entry, he waived his right to a separation examination, and it was determined he did not need one. If he had in fact been in a cast and his condition had been as severe as he now claims, this would have been noted in his records. Finally, as discussed, the 2009 VA medical records when he presented as a new patient noted the 1980 ankle injury and specifically stated that his current symptoms were different from that old condition. Therefore, the Board concludes that the evidence is against finding any continuity of symptomatology. He simply has not provided credible assertions of such. The Board acknowledges that it must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, as discussed in detail above, the Board determines that there is simply no persuasive evidence that the Veteran’s current right ankle pain is related to service. There is no medical opinion to contradict the VA examiners’ opinions that his right ankle condition is not related to service, nor has the Veteran suggested a medical professional has ever told him such, nor is there an opinion to the contrary. Given the above and remaining evidence, the Board finds that service connection for a right ankle disability is not warranted on any basis, and the preponderance of evidence weighs against the claim. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.