Citation Nr: 21014279 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-40 328 DATE: March 11, 2021 ORDER Entitlement to service connection for bilateral ankle disability is denied. FINDING OF FACT The Veteran’s current bilateral ankle disability did not have onset in service, did not manifest to a compensable degree within one year of discharge, and is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1990 to August 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision from the Department of Veterans (VA) Regional Office (RO). By way of history, in a May 1994 rating decision, the Veteran was denied service connection for a left ankle injury and a right ankle injury. The Veteran’s claim was reconsidered and denied again by the RO in January 1997, June 2007, September 2010, and April 2014. The April 2014 rating decision was reconsidered in March 2015, which is the rating decision on appeal. In September 2018, the Board reopened the claim and remanded it for further development. In July 2019 the Board remanded the claim again for further development. The required development has been completed and the matter is properly before the Board at this time. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board apologizes to the Veteran for the delays in the full adjudication of his claim. The Service Connection Claim Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection for certain chronic diseases, including arthritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service (for Hansen’s disease (leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 years). 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The term “chronic disease” refers to those diseases listed under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) of the VA regulations. See also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was “noted” during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where a diagnosis of chronicity may be legitimately questioned (“ i.e., “when the fact of chronicity in service is not adequately supported”), then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Importantly, the Veteran bears the burden of presenting and supporting his claim for benefits. See 38 U.S.C. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for a bilateral ankle disability The Veteran contends he fractured his right ankle in service and has had residual symptoms of pain, tightness and swelling since service. See e.g., VA 21-526 Veterans Application for Compensation or Pension, December 1993; Statement in Support of Claim, April 2010; Statement in Support of Claim, August 2013; HUD-VASH Intake Note, May 2017. Alternatively, the Veteran contends that due to pain from an in-service fracture of his left ankle, he has shifted weight onto his right ankle and since then, for the last twenty years, he has had pain in the right ankle. See VA Examination, July 2019. The Veteran also contends he fractured his left ankle in service and has had residual symptoms of pain when standing and during prolonged walking since service. See e.g., Statement in Support of Claim, April 2010; VA Examination, July 2019. Service treatment records show the Veteran suffered a left ankle sprain during service while playing basketball. See March 1991 Radiological Consultation Note. The Veteran’s service treatment records are silent for diagnosis, treatment or complaints of a right ankle injury. On separation from service, the Veteran reported no broken bones, no bone, joint or other deformity, and no foot trouble. See July 1991 Separation Examination. Following service, there is no diagnosis of an ankle disability until 2014, nearly twenty-five years after discharge, where the Veteran was diagnosed with bilateral ankle tendonitis. See Private Ankle DBQ by Dr. M.F., June 2014. Importantly, the Veteran did not complain of left ankle pain until April 2010, which was nearly twenty years after service discharge. See Statement in Support of Claim, April 2010 (Veteran first reports problems with both ankles, but mainly his right ankle). The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many, many, years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). Accordingly, competent evidence linking the current right ankle disability to service is needed to substantiate the claims. Initially, the Board notes that the Veteran was not shown to have arthritis of either ankle in service or within one year following discharge from service, as such, service connection cannot be established for arthritis on a presumptive basis. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran underwent a VA examination in April 1994 for his right ankle disability. The Veteran reported that while exercising in the gym during training he turned his ankle and sustained a fracture. The Veteran also stated that he had x-ray’s in service which showed a hairline fracture and that he was placed in a cast while in service for 4 – 6 weeks. The examiner noted that there was no record of the Veteran having this injury in service. The examiner also noted that there was no evidence of injury, no swelling and no tenderness on palpation upon examination. On examination, the Veteran could walk, stand, squat and even jump on his right foot without limitation or notation of pain. The Veteran had full range of motion in dorsiflexion and plantar flexion but could not supinate or pronate his right foot at all. The examiner further reported the Veteran’s did not have flat foot, deformity, and his ligaments seemed stable during the examination. The Veteran was shown to have a normal gate and reporting jogging during exercise. X-rays taken of the Veteran’s right ankle at this time did not reveal any abnormalities, fractures or subluxations. The examiner diagnosed the Veteran with “inability to pronate and supinate” his right foot. The examiner also noted that there was no evidence of an injury in service and the reports of fracture in service were unconfirmed. The Board finds the April 1994 VA examiner’s report to be highly probative evidence against the claim that the Veteran sustained an in-service right ankle fracture (or any injury to his right ankle in service). Here, the examiner had an opportunity to review the Veteran’s service treatment records shortly after discharge, and reviewed his prior medical history, considered his lay statements, examined the Veteran in person, and reviewed diagnostic records for signs of a prior fracture. The examiner concluded there was no evidence of an in-service injury or event in service that would cause the Veteran’s right ankle condition. In June 2014, the Veteran submitted a private Disability Benefits Questionnaire (DBQ) filled out by Dr. M.F., a Doctor of Podiatric Medicine (DPM). In the report, the Veteran was diagnosed with tendonitis in both ankles. Here, the Veteran reported flare ups in both ankles that became painful, with recurrent spasms that were extremely painful. No range of motion or repetitive use testing was conducted during the examination and no prior medical history, service treatment records, or diagnostic reports were reviewed by the examiner. The Board notes the private DBQ has many inconsistencies, which reduce its credibility a great deal. The report expressly stated that no range of motion or repetitive testing was conducted during the examination, but then concluded that there was pain on range of motion and repetitive use testing. Moreover, the report stated that there was ankle instability or dislocation bilaterally but then there was a written note stating the examiner was “Unable to test” stability. Additionally, there is a handwritten note on the report stating that the Veteran’s bilateral ankle disability functionally impacted him “due to chronic gastrol [sic] equines [sic], and pes planus deformity bilaterally.” The Veteran, however, was diagnosed only with tendonitis by the examiner (in a separate section of the report) and there is no evidence of record showing a diagnosis for the other conditions mentioned. The ambiguity of the meaning and of the author in this particular section of the private DBQ render such statements self-serving and not probative in the Veteran’s claim. Therefore, the Board concludes that the private DBQ is untrustworthy as a reliable report of the Veteran’s bilateral ankle condition at that time and cannot serve as credible or probative evidence in the Veteran’s appeal. Specifically, it is based almost entirely on the Veteran’s own statements without evidentiary support to sustain most of the medical conclusions it makes. In certain cases, the report contradicts itself. The Veteran next underwent a VA examination in July 2019. Here, the Veteran was diagnosed with a deltoid ligament sprain in his right ankle and a lateral collateral ligament sprain in his left ankle. During the July 2019 examination the Veteran reported that he fractured his left ankle while running during exercise in service. The Veteran stated he twisted his left ankle as he was running in boots but was not sure about all the events surrounding the incident. He reported that he was carried off on a stretcher and was treated for a left ankle injury. He also reported being placed in a walking cast for a few months. As to his right ankle pain, the Veteran reported that due to the pain in his left ankle, he had shifted weight onto his right ankle and since then, for the last twenty years, he has had pain in the right ankle as well. It is important to point out that for nearly thirty years the Veteran claimed that he fractured his right ankle during service, which caused his current right ankle disability. Also, important to the credibility of the Veteran as an historian of his own medical history, the Board notes that this is the first report made by the Veteran in the same thirty year time span that his left ankle (rather than his right ankle) was the ankle he fractured in service. In any event, the July 2019 examiner went on to opine that there was not sufficient medical evidence to state whether the Veteran’s right ankle condition was at least as likely as not related to service. The examiner noted the inconsistencies in the history of his ankle disability. Additionally, the examiner highlighted the Veteran’s statement in support of his claim from April 2010 that did not mention a fracture in either ankle and reported the problem as mainly in his right ankle, with the left ankle only hurting when the Veteran stood for too long or if he did a lot of walking. The examiner here found that there was a conflicting account of which ankle was the fractured ankle, as reported by the Veteran, throughout the claim, but there was no evidence in the record to support such a claim. Further, the examiner opined, if the problem had been significant and interfering with his work and activities, “one would think the Veteran would have been more active in seeking medical advice and treatment for it.” The July 2019 examiner also provided an opinion as to the etiology of the Veteran’s left ankle disability. However, the opinion did not consider a March 1991 treatment report of the in-service injury to the Veteran’s left ankle. As such, the July 2019 opinion regarding the Veteran’s left ankle disability was inadequate and an addendum opinion on the etiology of the Veteran’s left ankle disability was warranted. The addendum opinion in September 2020 opined that the Veteran’s right deltoid ligament sprain was not manifested in service or otherwise causally or etiologically related, including any injury or symptomatology therein. In support, the examiner cited to the relevant medical and lay evidence to show that the Veteran did not have a right ankle injury or fracture in service or within 1 year after leaving service. The September 2020 addendum further opined the Veteran’s left lateral collateral ligament sprain was not manifested in service or otherwise causally or etiologically related, including any injury or symptomatology therein. In support, the examiner noted the Veteran’s left ankle sprain in March 1991 was an acute sprain, which was treated with an ankle brace and resolved with no residuals and no documentation of chronicity thereafter. The examiner highlighted the Veteran’s separation examination, approximately four months later, which was silent for any ankle complaints, findings, or diagnoses of an ankle injury. Furthermore, the examiner reported that there was no documentation of continuity of complaints since active duty service, showing the condition was not a chronic problem for him after discharge. The Board finds the April 1994 and July 2019 VA opinions provide a preponderance of evidence against finding service connection for the Veteran’s right ankle disability. The examiners reviewed the Veteran’s claim file, examined the Veteran in person and considered his statements and made conclusions supported by the evidence and consistent with the record that there is no in-service injury connected to his right ankle disability. Moreover, the Board finds the September 2020 VA opinion to be the most probative evidence of record against finding service connection for the Veteran’s left ankle disability. Specifically, the September 2020 opinion was informed by the Veteran’s prior medical history and a review of the claims file, previous in-person examinations and statements made by the Veteran, including reviewing and citing to service treatment records and post-service treatment records and lay statements to support the conclusion that the Veteran’s current left ankle disability is not etiologically related to his military service. Furthermore, the Board has considered the statements from the Veteran asserting, in essence, that he fractured each ankle while in service and has had pain since to include tightness and swelling in his right ankle and pain while standing or walking in his left ankle. However, the Veteran’s statements, especially as to which ankle was fractured or injured in service, have not remained consistent throughout the appeal, thereby reducing the credibility and probative value of such statements. While the Veteran is certainly competent to report as to the observable symptoms he experienced and their history, he is not competent to diagnose a fracture of his ankle during service, or render an opinion as to the etiology of his current disability since service, because of the medically complex nature of such a diagnosis or opinion. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Put simply, there is no competent, credible or probative evidence to find that either ankle disability, first medically diagnosed in 2014 as tendonitis, and then as ligament sprains in 2019, is etiologically related to service. The best evidence in this case provides evidence against this claim. The Veteran does not have an event, injury, treatment or complaint of a right ankle condition shown while in service and both the best medical evidence and the facts of this case provide highly probative evidence against the claim that the Veteran’s left ankle disability, diagnosed many years after discharge, is etiologically related to an acute left ankle injury that resolved while in service. In some cases, the Veteran’s own statements provide evidence against the claim for service connection for a bilateral ankle disability. In summary, there is no competent evidence of arthritis of his either ankle, or any other disorder in service or within one year following discharge from service. Thus, the provisions regarding continuity of symptomatology are not applicable. See Walker, 708 F.3d at 1340 (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Moreover, the most probative and persuasive evidence of record is against a finding that either ankle disability is related to service. As such, the preponderance of the evidence is against the claim, and service connection is denied. Accordingly, the Board has considered the benefit of the doubt rule, however, since the preponderance of the evidence is against the claim, the rule is not applicable, and the claim for a bilateral ankle disability must be denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see Gilbert, 1 Vet. App. at 54. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Davidson 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.