Citation Nr: 21013877 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-06 559 DATE: March 10, 2021 ORDER Entitlement to service connection for a right ankle disorder is denied. FINDING OF FACT A preponderance of the evidence is against finding that the Veteran’s right ankle disorder had its onset during active service or within one year of separation; and is against finding an etiological relationship between the Veteran’s service-connected degenerative joint disease of the left ankle and her current right ankle disorder. CONCLUSION OF LAW The criteria for entitlement to service connection of a right ankle disorder, to include as secondary to a service-connected left ankle disability, have not been met. 38 U.S.C. §§ 1110, 1154, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159(a), 3.303, 3.304, 3.307, 3. 309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from March 1973 to March 1977, with subsequent periods of reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2012 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a July 2017 video conference hearing, a transcript of which has been attached to the record. In a December 2017 decision, the Board found new and material evidence had been submitted and reopened the claim, remanding the issue for further development in both December 2017 and January 2020. Entitlement to service connection for a right ankle disorder The Veteran asserts that her current right ankle disorder is due to an inservice ankle injury, or in the alternative, was caused or aggravated by her service-connected left ankle disability, diagnosed as left ankle degenerative joint disease (DJD). Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, during active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disability. See 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists; and (2) the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Finally, certain chronic diseases, such as an arthritis, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. When a chronic disease is shown as such in service (or within the presumptive period) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are also service connected unless clearly attributed to intercurrent causes. Moreover, if chronicity in service is not adequately supported, a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall afford the benefit of the doubt to the claimant. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. When a claimant seeks benefits and the weight of the evidence amounts to relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Therefore, a preponderance of the evidence must weigh against the Veteran’s claim in order for service connection to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). The Veteran’s service treatment records, to include entry and separation examinations, are silent for complaints of or treatment for right ankle issues. Additionally, July 1981, July 1983, and November 1987 reserve examinations are silent for complaints of or treatment for right ankle difficulties. August 1989 VA treatment records indicate the Veteran complained of right ankle pain, swelling and stiffness since May of that year. She reported injuring her right ankle while playing softball in the Navy but that it had been relatively asymptomatic even after heavy exercise. The treating clinician suspected arthritis but was unsure if it was DJD or pseudogout. The Veteran reported continuing ankle pain into 1990, and June 1990 VA imaging confirmed a diagnosis of mild DJD of the right ankle. August 2001 VA treatment records note the Veteran complained of swelling, stiffness and pain in her right ankle. Concurrent imaging revealed probable pes planus with a calcaneal spur. During an April 2004 VA examination, the Veteran reported she sprained her left ankle while in the military but did not injure her right ankle inservice. She described a four to five year history of right ankle pain. Imaging revealed right foot pes planus and a talar neck spur of the ankle mortise. At a January 2014 VA examination, the Veteran clarified that it was her left, and not her right, ankle that was injured during an inservice softball game. The attending physician noted the Veteran’s service treatment records only note a left ankle sprain in 1973. In a February 2014 Form 9 appeal, the Veteran described experiencing bilateral ankle pain post-service. She stated that a doctor told her that as a result of favoring her left ankle she subsequently injured her right ankle and that she felt this was the cause of her bilateral ankle DJD. June 2017 VA imaging revealed degenerative spurring of the medial tibiotalar joint and anterior talus, as well as plantar calcaneal spurring. Concurrent VA treatment records note an altered gait caused by increased toe-out angle on the right foot and ankle. At the July 2017 Board hearing, the Veteran reported injuring her right ankle during an inservice baseball game. She indicated that she went to sick call and stated the ankle was still painful on separation from service, with worsening over time to include the manifestation of heel spurs and increased soreness. The December 2017 Board decision remanded the claim to the AOJ for further medical opinion regarding the possibility of secondary service connection. This decision also included a finding of fact: that the Veteran did not incur an inservice right ankle sprain as claimed. The Board confirms this finding of fact based on the Veteran’s inconsistent statements regarding which ankle she injured during a ball game inservice as well as service treatment records confirming a left ankle injury. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (notwithstanding the declarant’s intent to speak the truth, statement may lack credibility because of faulty memory). The Veteran was afforded a VA examination in February 2018, which noted degenerative arthritis and guarding of the ankles bilaterally as well as regular use of a cane. The examiner opined that the Veteran’s right ankle disorder was less likely than not related to her active service, as there was no documentation of an inservice right ankle injury, and her right ankle degenerative arthritis was noted long after her separation. Noting the Veteran’s claim that her right ankle disorder was due to her service-connected left ankle disability, as well as the absence of a secondary service connection opinion from the February 2018 examiner, the Board remanded the claim in January 2020 for an addendum opinion. The examiner was informed that the Veteran was competent to report her symptoms and history. The AOJ obtained an addendum opinion in March 2020. After reviewing the medical evidence of record, the VA examiner opined that the Veteran’s right ankle disorder was less likely than not due to her active service, reasoning that while the Veteran was deemed competent to describe her medical history, she was not competent to establish the diagnosis of a right ankle disorder during service. The examiner concluded that as there was no evidence of a right ankle injury inservice or immediately following service, there was no nexus between the Veteran’s current right ankle disorder and her active service. With regard to secondary service connection, the examiner opined that the Veteran’s right ankle disorder was less likely than not proximately due to her service-connected left ankle disability. Stating that arthritis in one joint does not cause arthritis in another joint, the examiner noted that medical literature does not supporting a relationship between DJD of the left ankle and the development of DJD in the right ankle. The March 2020 VA examiner also opined that the Veteran’s right ankle DJD was less likely than not aggravated beyond its natural progression by her left ankle DJD. He stated that degenerative changes of the left ankle have no effect or any etiological relationship to the progression of degenerative changes in the right ankle. The examiner noted that April 2004 and June 2017 VA medical records indicate that the Veteran’s chronic right ankle pain was related to pes planus and a toe-out stance and gait of the right foot and ankle. Additionally, the examiner stated that medical literature does not support aggravation of an opposing joint except when there is a significant injury to the affected joint resulting in a leg length discrepancy of one to two centimeters. Noting the absence of such an injury, the examiner concluded that there was no medical nexus between the Veteran’s left and right ankle disorders. While the Board acknowledges that the Veteran manifests a right ankle disability, a preponderance of the evidence is against finding that this disability had its onset in or is otherwise related to her active service. The Board finds the VA examiner opinions to be the most probative evidence, as they are the only medical opinions of record and were provided by VA examiners possessing the necessary education, training and expertise, utilized to provide opinions based upon a review of the Veteran’s medical record. Additionally, the Board finds that both direct service connection opinions provide adequate rationale supported by the medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008); 38 C.F.R. § 3.159(a)(2) (“most of the probative value of a medical opinion comes from its reasoning”). The Board further observes that while arthritis is a chronic disease per 38 C.F.R. §§ 3.307 and 3.309, there is no evidence that the Veteran’s DJD of the right ankle had its onset during her active service or within one year of separation. As noted above, the Veteran’s left ankle was injured and treated during service, while the record is silent for medical evidence of an inservice right ankle injury and the Veteran’s own lay statements on the matter are inconsistent, lowering their probative value. The objective medical evidence indicates the initial manifestation of right ankle DJD symptoms occurred in 1989, over a decade after the Veteran’s active service ended. Similarly, the Veteran is not competent to associate any symptoms experienced inservice or within one year of separation with the manifestation of arthritis, as the issue is medically complex and requires medical training and knowledges of the internal workings of the human body. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). With regard to secondary service connection, the Board finds the opinion of the March 2020 examiner to be highly probative. The examiner carefully reviewed the Veteran’s in and post-service treatment records and cited to these as well as medical literature in opining that the Veteran’s right ankle disorder was less likely than not caused or aggravated by her left ankle disability. See Nieves-Rodriguez, 22 Vet. App. at 302. The U.S. Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when the lay person is reporting a contemporaneous medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, the Board finds the Veteran’s February 2014 statement recounting an opinion on the etiology of her right ankle disorder less probative than the March 2020 VA examiner opinion. The Board observes the Veteran has indicated that all of her post-service care has been through VA, but this etiology opinion is not recorded in her VA treatment records, and she has provided prior inconsistent lay statements regarding the history of her right ankle disorder, lowering their overall probative value. See Seng, F.3d at 19. Finally, while the Board does not doubt that the Veteran is sincere in her belief that her right ankle disorder was proximately caused or aggravated by her service-connected left ankle disability, she lacks the competency to provide a probative opinion regarding the etiology of her right ankle DJD. As a lay person, she does not possess the education, training or experience to competently opine on the matter. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Although lay persons are competent to provide opinions on certain medical issues, determining the etiology of the Veteran’s right ankle disability falls outside the realm of matters that are capable of being observed and described by a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Similarly, it is not the place of the Board to substitute its own inadequate lay knowledge for that of the Veteran. Id. (Lance, J. concurring). On the contrary, a competent opinion regarding the etiology of the Veteran’s right ankle disability requires knowledge of the complexities of the neurological and musculoskeletal systems and is thus a complicated medical issue upon which a lay person may not competently opine. Jandreau, 492 F.3d at 1376. Thus, the Board finds the VA opinions, formulated by competent examiners and based on objective medical evidence, to be the most probative evidence of record. Accordingly, in light of the forgoing, the Board finds that a preponderance of the evidence weighs against finding that the Veteran’s right ankle disorder first manifested in or is otherwise due to her active service; and is against finding that it is causally related to or aggravated by her service-connected left ankle disability. As such, there is no doubt left to resolve in the Veteran’s favor, and entitlement to service connection for a right ankle disorder on both a direct and secondary basis must be denied. See 38 U.S.C. § 7105; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-54. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.