Citation Nr: 21013824 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-06 259 DATE: March 10, 2021 ORDER Entitlement to service connection for a left ankle condition is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's diagnosed left ankle condition was incurred during active service; it was not caused by active service, was not caused or aggravated by service-connected disability, and did not manifest to a compensable degree within one year of separation from active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left ankle condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1980 to October 1983. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in September 2016 at the RO before a decision review officer (DRO). Thereafter, in January 2017, the Veteran testified again at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). Entitlement to service connection for a left ankle condition The Veteran contends that he injured his ankle while on active duty and is entitled to service connection. 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, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) 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, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (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. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of degenerative joint disease and degenerative arthritis, the preponderance of the evidence weighs against finding that the Veteran’s left ankle disability began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records are silent for any complaints or treatment for an ankle injury. VA medical records show the Veteran reported left ankle pain since 2012. An x-ray of the Veteran’s left ankle from May 2012 showed no acute fracture and no significant degenerative changes. July 2012 magnetic resonance imaging (MRI) of the Veteran’s left ankle showed a small amount of edema, abnormal Achilles tendon consistent with a rupture, and suspected tear of the anterior talofibular ligament and anterior tibial. VA medical records also show the Veteran was suggested an outside referral for achilles surgery. In a November 2012 VA Form 21-4138 Statement in Support of Claim, the Veteran stated that he hurt his ankle and knee when road marching and running. In the September 2016 hearing, the Veteran stated that he injured his left ankle playing company and battalion basketball during his time on active duty. The Veteran stated that he received treatment on active duty for his ankle injury sustained while stationed in Germany. In the January 2017 hearing, the Veteran testified that he had ankle problems while on active duty. The Veteran stated that he played basketball while on active duty. The Veteran testified that cold weather also causes his ankle to hurt. Additionally, the Veteran stated that he experienced swelling of the ankle, which required elevation. The Veteran stated that he can take pain medication to keep the swelling down. The Veteran also stated that he tripped while running an obstacle course on active duty and irritated his ankle. The Veteran was afforded a VA examination in April 2018. The examiner noted a diagnosis for degenerative arthritis in the left ankle. The Veteran reported that he injured his ankle while running in a course drill. He stated that he told his platoon sergeant, and they took him to sick call. The examiner opined that the claimed ankle injury was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner found there was insufficient evidence to warrant or confirm diagnosis of a left ankle condition while on active duty. The examiner stated that the degenerative joint disease in left ankle was more likely as not is a primary degenerative process with aging. In the examiner’s aggravation opinion, she stated that the preponderance of medical evidence does not support that one joint is the cause or direct and proximate cause of another joint or causes an aggravation of a joint beyond natural progression. The examiner stated that current medical literature does not support a disease process present in one joint or appendage causes a disease process in contralateral or different part. Additionally, the examiner stated age and genetics are predictors of degenerative joint disease. However, the examiner included questionable language in her aggravation opinion when she stated, “[i]t is this by, related to, or aggravated by Veteran subjective claim of left ankle condition due to a lumbar spine condition.” This caused the Board to remand this case in November 2018 for a new examination. As a result of the November 2018 remand, the Veteran was afforded a VA examination in September 2019. However, the Board found the September 2019 examination was copied and pasted from the prior April 2018 examination. The Board remanded the claim again for another VA examination. The Veteran was afforded a new VA examination in October 2020. The examiner noted a left Achilles tendon rupture in 2012 and a diagnosis for degenerative joint disease. The examiner wrote that the Veteran reported a fall in 1981 during training in Germany on an obstacle course which led to his left ankle condition. The Veteran was also found to have foot drop of the left leg due to a back condition, and he wore a Richie brace. The examiner ultimately opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted no evidence of an ankle injury during service, whereas the Veteran was diagnosed with left Achilles tendon rupture in 2012. The examiner also stated that imaging revealed degenerative joint disease with findings suggesting prior left ankle trauma and that the findings were consistent with a prior ankle injury. The examiner found that the Veteran’s claimed ankle condition was less likely than not proximately due to or the result of the Veteran’s service-connected back condition. The examiner stated that no evidence existed to indicate that the service-connected residuals of lower back sprain with degenerative disc disease and lumbar radiculopathy could have caused the left Achilles tendon rupture and degenerative joint disease. The examiner also found no evidence to indicate that the service-connected lower back condition could result in significant stress on the left ankle to a degree to cause or aggravate the left ankle degenerative joint disease and left Achilles tendon rupture. The examiner found no evidence to indicate a nexus between the conditions. The Board notes the Veteran’s lay testimony in the record that he injured his left ankle while on active service. While he is competent to report having experienced symptoms since service, he does not have the training or credentials to provide a competent opinion as to a diagnosis or etiology in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the preponderance of the evidence is against the Veteran's claim. There are no documented complaints or records of treatment for an ankle injury or condition in the Veteran's service treatment records. The post-service treatment records do not reflect any treatment for an ankle condition until several decades after service and contain no medical opinions supporting his contentions. Finally, the October 2020 VA examiner found no nexus between the condition and his active service. The medical evidence similarly shows no basis for secondary service connection on aggravation or causation on account of the service-connected back disorder. Lastly, the medical evidence does not show he was diagnosed with left ankle arthritis by October 1984, one year from separation from active duty. The first evidence of an ankle condition of record was decades after service. Based on these facts, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.