Citation Nr: 21015434 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-04 611 DATE: March 17, 2021 ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for a right ankle disability is denied. FINDINGS OF FACT 1. It is as likely as not that the Veteran’s low back disability is related to in-service occurrences or events. 2. The preponderance of the evidence is against finding that the Veteran has a right ankle disability which is due to a disease or injury in-service or which was manifested by arthritis to a compensable degree within one year of separation from service. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 2004 to June 2009. Included among his many decorations and awards are the Marine Corps Good Conduct Medal, Combat Action Ribbon (Iraq), and Sea Service Deployment Ribbon with 2 Stars. In October 2016, the Veteran appeared at a hearing held at the San Antonio, Texas Satellite Office before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In September 2017, the Board remanded the Veteran’s appeal for evidentiary development. In November 2018, and in pertinent part, the Board denied the Veteran’s appeal with respect to the 2 issues listed above. A January 2020 Court of Appeals for Veterans Claims (Court) order vacated the Board’s decision and adopted a Joint Motion for Partial Remand (JMPR) for reconsideration of the Veteran’s claim. In June 2020, the Board remanded the Veteran’s appeal for additional evidentiary development. During development, a November 2020 rating decision granted entitlement to service connection for a right wrist disability and assigned a 10 percent rating, effective July 1, 2009. As such, it is no longer on appeal. The remaining issues, as they have been characterized above, have since been returned to the Board for further consideration. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain chronic diseases, including arthritis, may be presumed if they are manifest to a compensable degree within one year following the date of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in-service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word “chronic.” Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in-service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the “chronic” diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a low back disability To begin, the Board observes that the Veteran’s service records are silent as to any complaints of or treatment for a low back disability. It is noted that service treatment reports also show that he was placed on quarters for swollen, stiff, or painful joints after a fall, but the joints were not identified. His separation examination included complaints of back pain. The Board further observes that the Veteran has received ongoing VA treatment for several medical conditions, including back pain. As discussed in the previous section, a January 2020 Court order vacated the Board’s previous denial with respect to this issue. In essence, the Court found that the Board relied on inadequate reports from previous VA examinations when denying the claim. Specifically, it was noted that the record includes a December 2010 VA treatment note, where the Veteran’s treating physician documented a history “of back pain x 3-4 [years].” The Court remarked that this record documents a complaint of back problems approximately two years prior to what a prior examiner identified as the Veteran’s first such complaint, and this record also refers to the problems underlying the complaint as having been present for several years. Considering the Court’s findings, the Board will limit its discussion to the evidence added to the record since its November 2018 decision. Pursuant to the Board’s June 2020 remand, the Veteran received another VA back examination in September 2020, wherein he was diagnosed with degenerative arthritis of the spine. After a review of the Veteran’s claims file, the examiner determined that the condition is at least as likely as not attributable to service. The examiner provided the following rationale: The Veteran’s low back disability is diagnosed as degenerative arthritis of the lumbosacral spine with left lower extremity radiculopathy. In review of his available medical record there is documentation supporting complaints of back pain on his discharge/separation exam. On x ray dated: 01/18/2013 there is noted degenerative changes to the lumbosacral spine; given the Veteran’s age of 27 on x ray of the spine the noted degeneration is at least as likely as not related to his active military service requirements of lifting heavy loads. A nexus has been established. Curiously, the Agency of Original Jurisdiction (AOJ) found that there was conflicting information in the report, so an addendum opinion was obtained in December 2020. After a review of the Veteran’s claims file, a different examiner also determined that the condition is at least as likely as not attributable to service. The examiner provided the following rationale: There is objective evidence in the STR’s that the Veteran was seen and treated for low back pain within one year post separation. The veteran was seen on 12/24/2010 -25 y/o male with hx of lower back pain x 3-4 yrs and 05/2010- Active Problem Low Back Pain. A nexus has been established. The Board finds that, with resolution of the doubt in favor of the Veteran, service connection is warranted. The Veteran has a chronic disability of the low back. Symptoms of a low back injury were noted during service and a history of low back pain has been noted in post-service treatment records. Additionally, the Veteran has competently and credibly testified as to the onset of symptoms in service and the continuity of symptoms since service, which are supported by the contemporary treatment records. Finally, the etiological opinions provided by different examiners in June 2020 and December 2020 support a nexus to service. Therefore, the evidence of record is in relative equipoise concerning the etiology of the Veteran’s low back disability. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s low back disability is at least as likely as not etiologically related to his military service. Therefore, service connection is warranted. See 38 U.S.C. § 5107. 2. Entitlement to service connection for a right ankle disability Initially, the Board observes that the Veteran’s service records are silent as to any complaints of or treatment for a right ankle disability. It is again noted that service treatment reports also show that he was placed on quarters for swollen, stiff, or painful joints after a fall, but the joints were not identified. His separation examination included complaints of right ankle pain. The Board further observes that the Veteran has received ongoing VA treatment for several medical conditions. Again, a January 2020 Court order vacated the Board’s previous denial with respect to this issue. In this regard, the Court determined that the Board’s previous denial rested mostly on the fact that a right ankle disability for VA purposes was not established. However, the Court stated that the Board failed to explain why a November 2017 VA examination report documents localized tenderness and pain in the right ankle along with reported difficulty with lateral movement fails to satisfy the current disability element for the Veteran’s claim. The Court also discussed a November 2013 VA examination report that documents constant pain and functional loss in the right ankle. As such, the Board declines to discuss the previous examination reports and the etiological opinions provided because they have been deemed inadequate by the Court. Pursuant to the Board’s June 2020 remand, the Veteran underwent a VA examination in September 2020, wherein he was diagnosed with a right ankle strain. Diagnostic testing results showed no acute abnormalities or degenerative changes of the right ankle. After reviewing the Veteran’s claims file, the examiner determined that the condition is less likely than not attributable to service. The examiner provided the following remarks: The veteran’s right ankle disability is diagnosed as a right ankle strain. In review of his available medical record there is no evidence of an ankle injury or fall. Although there is noted pain on internal rotation of the ankle during his separation exam; there is no evidence of any ankle conditions/defects, nor is there evidence of the Veteran seeking medical attention for right ankle complaints. Furthermore, there is no evidence of ongoing complaints after separation concerning the right ankle. There is insufficient medical evidence to support the right ankle strain incurred during active military service; likely the strain occurred casually and due to age along with a current occupation which requires standing for prolonged periods. A nexus has not been established. After carefully considering the Veteran’s contentions and reviewing the evidence of record, the Board finds that the preponderance of the most probative evidence is against the claim of entitlement to service connection for a right ankle disability. While the Veteran clearly has a right ankle disability, the weight of the evidence is against finding that such disability is related to military service, or that arthritis manifested to a compensable degree within one year of separation from active duty. Here, the Board finds the opinion of the September 2020 VA examiner to be highly probative because the opinion was based upon a review of the Veteran’s entire electronic claims file, as well as other pertinent medical records, and a full examination, to include both history and clinical findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Notably, the September 2020 VA examiner clarified that the Veteran does have a diagnosis of right ankle strain. However, the examiner found no records concerning right ankle pain or treatment until several years after discharge. Instead, the examiner attributed the Veteran’s ankle condition to the natural aging process or his current occupation, which requires him to stand for long periods of time. The Board acknowledges several lay statements submitted in support of his claim. These statements, as well as his October 2016 testimony, essentially relate his joint pain to the fact that he often carried heavy loads during service, which caused increased wear and tear on his joints. The Veteran is competent to describe events that occurred during military service and any symptomatology regarding his low back pain. However, as a lay person, he is not competent to provide a medical diagnosis or to determine the etiology of his current right ankle disability. 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). Thus, the opinions of competent medical professional such as the VA examiner of record is entitled to greater probative weight, and is found by the Board to be far more probative than the Veteran’s lay assertions as to the etiology of his right ankle disability. There is also no evidence of a chronicity of symptomatology from the time of service to the present. While the Veteran complained of pain upon his separation from service, there is no indication that he had any clinically diagnosed right ankle disability until approximately a few years after discharge from service. The Board also notes that there is no basis to grant service connection for a right ankle disability, including arthritis, on a presumptive basis, as there is no evidence that arthritis manifested to a compensable degree within one year of discharge from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The first x-ray evidence of any abnormality in the Veteran’s ankle is from x-rays from several years after separation from service, and thus this presumption is not applicable. Moreover, the September 2020 x-ray impressions included findings of no acute abnormalities or degenerative changes in the right ankle. For the above reasons, the Veteran’s claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, 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.