Citation Nr: 21015929 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 14-25 455 DATE: March 18, 2021 ORDER Entitlement to service connection for a right ankle disability to include secondary to a service-connected left ankle disease or injury is denied. FINDING OF FACT A right ankle disability is not currently manifest and did not manifest at any point during the appeal period. CONCLUSIONS OF LAW 1. A right ankle disability was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303. 2. A right ankle disability is not proximately due to, the result of or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1988 to January 1990. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in December 2020. A transcript of the hearing has been associated with the record. Here, during the December 2020 Board hearing, the VLJ clarified the issues on appeal; questioned the Veteran on relevant subject matter; clarified the concept of service connection; and clarified the type of evidence that would support the Veteran’s position. Thus, the actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Pertinent Legal Criteria Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). Right Ankle Disability Direct Service Connection The Board notes that the Veteran has reported receiving treatment for right ankle sprains. To the extent that the Veteran contends that he has a right ankle disorder related to service, the Board finds that the objective evidence outweighs this assertion. Crucially, there was an in-service twist report. However, the Veteran’s service treatment records indicate no suggestion of continued treatment for or diagnoses of a right ankle disability. The Veteran has gone through multiple VA examinations where the examiners have concluded that Veteran does not have a right ankle disability despite Veteran’s subjective complaints of pain. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. The law i9s clear, there must be evidence of current disability and such disability must be due to in-service disease or injury. Here, there is a remarkable lack of credible evidence of post-service pathology (disease or residual of injury). In addition, we find a lack of credible evidence of current disability (impairment) despite his complaints. Secondary Service Connection The Board notes that service connection on a secondary basis may be granted for disability which is caused or aggravated by a service-connected disease or injury. Veteran has claimed that his right ankle condition was worsened by his left ankle disorder. The evidence of record establishes that the Veteran does not have a secondary service-connected disability of the right ankle. Specifically, the Veteran was afforded VA examination for his claimed right ankle disability January 2020. After examination of the Veteran, the VA examiner stated the Veteran has no objective evidence of a right ankle condition. Pertinently, the VA examiners documented normal range of motion, no pain, no flare-ups, and no functional loss of the right ankle. The examiner concluded that the right ankle was not at least as likely as not aggravated beyond its natural progression by his service-connected left ankle. The examiner reported that the Veteran has subjective complaints of pain, but that there is rarely pain in the contralateral ankle after an injury to the other. The Board has considered the Veteran’s statements that he has a right ankle disability. The Veteran is competent to provide evidence of that which he experience, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). However, competence must be distinguished from probative weight. Although the Veteran is competent to relate what he experiences through the senses, the lay evidence is lacking in detail and consistency to support the conclusion that there is a current right ankle disability. The lay assertions of the Veteran are therefore afforded less probative weight, and less credibility than the VA examination reports. The Board acknowledges the Veteran’s in-service treatment for a right ankle twist in July 1988. However, outside that incident the Veteran’s medical records were largely silent of right ankle pathology. During the December 2018 and January 2020 VA examinations, Veteran made subjective complaints of right ankle pain. However, both VA examinations noted normal range of motion, no pain and that the Veteran was able to perform repetitive-use testing with at least three repetitions. Both VA examinations did not note objective right ankle pain or a right ankle disability. As noted above there was a January 2020 VA examination. During that examination the examiner noted all normal range of motion, no evidence of pain with weight bearing on right ankle and no objective evidence of pain on non-weight bearing for the right ankle. The VA examiner concluded that there was no objective evidence of a right ankle disorder and the Veteran’s right ankle was not at least as likely as not aggravated beyond its natural progression by the left ankle condition. While there is a favorable September 2020 private medical opinion, it does not trump the previous January 2020 and December 2018 VA medical opinions. The private examiner states that he believes the proximate cause of all his ankle symptoms is the basketball injury occurring in 1989 during active duty. The examiner bases this opinion on MRI reports from June 2020 and August 2020, but does not have the actual imaging. Further it is not clear if the private examiner examined the Veteran’s medical record history or relied only on Veteran’s lay statements. In this case, the Board finds that the most probative evidence weights against finding that the criteria have been met for an entitlement to service connection of the right ankle secondary to the service-connected left ankle disability. Conclusion Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection under any theory of entitlement and service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Konieczny, Adam 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.