Citation Nr: 21011558 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-33 886 DATE: March 2, 2021 ORDER Service connection for a left ankle disorder is denied. REMANDED Service connection for a back disorder is remanded. Service connection for a neck disorder is remanded. Service connection for a right arm disorder is remanded. Service connection for bilateral upper extremity radiculopathy associated with the neck disorder is remanded. Service connection for bilateral lower extremity radiculopathy associated with the back disorder is remanded. FINDING OF FACT 1. The Veteran’s arthritis was not chronic in service, the disorder did not manifest to a compensable degree within one year of service separation, and symptoms were not continuous from service to diagnosis, and the ankle disorder is otherwise not related to service. CONCLUSION OF LAW The criteria for service connection for a left ankle disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to May 1971. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision. The Board filed his initial claim for service connection for a back disorder in April 2015, and the RO denied his claim in a March 2016 rating decision. The Veteran filed to reopen his claim in April 2016, which was denied again in June 2016. The Veteran requested reconsideration of his claim in June 2016 and submitted evidence that was new and material in October 2016. As this evidence was received within one year of the March 2016 rating decision, the original claim never became final and is the claim on appeal. See 38 C.F.R. § 3.156(b). Similarly, the Veteran filed his claims of service connection for a neck disorder, right arm disorder, left ankle disorder, and bilateral upper and lower extremity radiculopathy in April 2016, which were denied in June 2016. He requested reconsideration of his claims in June 2016 and submitted evidence that was new and material in June and October 2016. As this evidence was received within one year of the June 2016 rating decision, the original claims never became final and are the claims on appeal. See 38 C.F.R. § 3.156(b). 1. Service connection for a left ankle disorder is denied. The Veteran seeks service connection for an ankle disorder related to an in-service injury. He has been diagnosed with degenerative joint disease and an old medial malleolus fracture during the period on appeal. Because arthritis is a “chronic disease,” the Board considered entitlement to presumptive service connection as well as direct service connection. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309. The Board finds, however, that service connection is not warranted for an ankle disorder. First, the Board finds that presumptive service connection is not warranted for the Veteran’s arthritis. The Veteran’s service records, which appear to be complete, show treatment for a sprained ankle in February 1971. X-rays only showed soft tissue swelling and he was diagnosed with soft tissue trauma. The records do not show subsequent treatment and his separation examination was normal. Post-service medical records do not show ankle-related complaints until June 2015. X-rays taken in September 2015 documented an old medial malleolus fracture and degenerative joint disease was later noted in a December 2015 record. Thus, the evidence does not show that his arthritis was chronic or diagnosed in service nor manifested to a compensable degree within one year of separation from service. Furthermore, the more persuasive evidence does not show a continuity of symptomatology from service to diagnosis. During a November 2010 VA treatment visit, the Veteran denied “any medical [history] or problems from his military service.” When the Veteran sought treatment for his ankle in June 2015, he reported that his pain began four weeks before the visit and he denied any known injury. At a follow-up visit in September 2015, he contradicted his earlier statement and reported experiencing symptoms “for years” and that he had a severe sprain in service but denied any other known injury. The Board considered the Veteran’s testimony that he has experienced left ankle pain since his in-service injury for which he sought treatment. The Board finds, however, that the Veteran’s contention that he has experienced ankle pain since that injury is not credible because it is contradicted by the medical evidence and his statements made seeking treatment in November 2010 and June 2015. Notably, despite seeking treatment for numerous musculoskeletal conditions at VA since 2003, the Veteran did not seek treatment for his ankle until June 2015 at which time he reported symptoms began only four weeks before the visit. This is not a situation where there is a lack of evidence; rather, this is one where the Veteran was actually receiving medical care for years without any complaints about the ankle whatsoever. This weighs quite heavily against his testimony, as it is reasonable to assume that if a person were experiencing chronic pain for many years, it would have been reported at some point while seeking treatment and discussing medical history. The Board also considered the Veteran’s testimony that he never fractured his ankle and his only ankle injury took place in service. The competent evidence contradicts this testimony, however. X-rays taken in September 2015 reveal an old medial malleolus fracture and the old fracture is documented in several VA treatment records. Indeed, the first record documenting the old fracture was authored by Dr. M, referenced by the Veteran in the Board hearing. Moreover, after discovery of the old ankle fracture, VA treatment records show that he related his left ankle pain to an in-service ankle fracture. He did not, however, fracture his ankle during service, as conclusively shown by the in-service x-rays. Thus, the Veteran’s recollection of his medical history, including that he has experienced ankle pain since service, is not reliable or probative evidence. Because the ankle arthritis was not chronic in service, the disorder did not manifest to a compensable degree within one year of service separation, and symptoms were not continuous from service to diagnosis, presumptive service connection is not warranted. The Board further finds that service connection is not warranted for an ankle disorder on a direct basis. In making this determination, the Board relied on the above evidence, including the service records, the normal separation examination, the extensive period between separation from service and symptoms, and the post-service treatment records and statements made therein. As discussed above, despite the Veteran stating now that he had ankle pain ever since the in-service injury, the fact is he received medical care for many years without raising any ankle complaints and, when he did, he initially reported onset a few weeks prior to the 2015 visit. The Board also relied on the June 2016 VA medical opinion. After examination and a review of the claims file, the examiner concluded that the Veteran’s ankle disorder was not related to service. In support of this conclusion, the examiner relied on the service treatment records, which showed an ankle sprain in 1971 and a normal separation examination, and post-service treatment records which showed an ankle fracture. The Board finds that the medical opinion is probative because it was based on an accurate review of the claims file and included a rationale. As x-rays taken of his ankle injury in service showed no fracture, it is evident that an intervening injury occurred which caused the left ankle fracture documented in the September 2015 x-rays. Thus, after reviewing the probative lay and medical evidence, the Board finds that the Veteran’s ankle disorder is not related to service, to include the in-service ankle injury, and the claim is denied. REASONS FOR REMAND Unfortunately, the Board finds that the matter must be remanded to obtain all available relevant evidence prior to rendering a decision on the merits. The Veteran has contended on several occasions that VA has records of his neck surgery that took place in the 1980s, but no such records are associated with the claims file. The Veteran only authorized the RO to obtain records from the Mayo Clinic. In March 2017, during the DRO hearing, he mentioned that he underwent surgery at Sacred Heart and those records were associated with the claims file. No attempts have been made to obtain records from Sacred Heart and, based on the Veteran’s statements that VA has records from Sacred Heart, it is unclear whether there are outstanding records that can be obtained. Thus, a remand is necessary to attempt to obtain those records from the hospital and/or the Veteran. As the claims of service connection for a right arm disorder and bilateral upper extremity radiculopathy are inextricably-intertwined with the claim of service connection for a neck disorder, those claims must be remanded. While the surgery related to the neck only, any records obtained may corroborate the Veteran’s claims regarding his back; therefore, the claims of service connection for a back disorder and bilateral lower extremity radiculopathy must be remanded as well. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Sacred Heart Hospital, where he underwent his neck surgery in the 1980s. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Ask the Veteran to submit any records in his possession related to his neck surgery to VA. 3. Obtain medical records from the VA in Sioux Falls from June 2019 to present. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lavan, 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.