Citation Nr: 21020725 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-23 203 DATE: April 8, 2021 ORDER Entitlement to service connection for a right ankle disability is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right foot disability is remanded. FINDING OF FACT The Veteran’s right ankle disability did not originate in service or until years thereafter and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1982 to September 1987. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in April 2019. The hearing transcript is associated with the claims file. The Board notes that this matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). The appeal was last remanded by the Board in December 2020 for additional development. Regrettably, more development is still necessary for the claims for entitlement to service connection for a right shoulder disability and a right foot disability. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). The Board notes that a VA examination or opinion was not obtained in this appeal. As discussed below, the evidence does not establish an event, injury or disease in service. Accordingly, a VA examination or opinion is not necessary. See 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Entitlement to service connection for a right ankle disability In June 2017 correspondence, the Veteran stated that in March 1983, while pregnant, she experienced her right ankle “twisting and going out” underneath her. She further stated that by the time she was six months pregnant she was in a cast up to her knee for two months in an attempt to stop the ankle from going out of the joint while walking. During her April 2019 hearing, the Veteran testified that she twisted her ankle while she was pregnant and stationed in New Mexico. She testified that both her ankle and her foot were injured. She stated that she was told there were a couple of hairline fractures in her right ankle. She further testified that she sought treatment at a hospital and her ankle was placed in a cast for six weeks, during which time she was put on light duty. The Veteran testified that her right foot and ankle were still painful and that she was prescribed a cane by VA. Service treatment records include an August 1987 report of medical examination noting that the Veteran did not have swollen or painful joints nor bone or joint deformity. The report notes complaints of foot injuries, however, no complaints, treatment, or diagnosis related to the right ankle is noted nor is any injury involving a cast. An August 1987 separation examination noted that evaluation of the Veteran’s lower extremities was normal. VA treatment records note that the Veteran had arthralgia and mild arthritis in her right ankle. An October 2015 VA treatment record notes that the Veteran had a history of a right foot surgery in 1982 that was not related to her ankle. A November 2015 VA treatment record notes that the Veteran had a long history of “twiddling” her ankles since her youth and that she continued to roll, feel, pops, and have pain in her ankle. An October 2016 VA treatment record notes that the Veteran had a right ankle cast during active duty service due to instability. The record also notes that the Veteran reported that she had two surgeries but that she later changed her story and denied such. A subsequent October 2016 VA treatment record notes that the Veteran recently sprained her ankle. Another October 2016 VA treatment record notes the Veteran’s reports of a right ankle cast during service due to instability. An April 2017 private treatment record notes that the Veteran reported right ankle instability with a history of trauma during service. The record again notes that the Veteran changed her story regarding whether she had two prior surgeries. At the outset, the Board finds that the Veteran’s reports of in-service instability and the placing of her ankle in a cast in 1983 lacks credibility. The Veteran’s service treatment records are completely silent for any complaints, treatment, or diagnosis related to her right ankle. The Veteran’s August 1987 separation examination was silent for any right ankle injury or disability. In addition, the Veteran has reported that her right ankle and right foot were injured simultaneously, however, the Veteran’s service treatment records note specific injuries to her foot that were unrelated to the ankle. Here, the absence of any mention of ankle injuries or treatment in service undermines the credibility of her account, as she specifically described receiving substantial treatment measures, such as casting, that are not reflected anywhere in the service records. The October 2015 VA treatment record also explicitly noted that a 1982 right foot injury was unrelated to her right ankle. Lastly, the Board notes that the November 2015 VA treatment record documented the Veteran’s reports of pre-service “twiddling” of her ankles during her youth and that the October 2016 VA treatment record documented a recent sprained ankle further supporting that the Veteran’s right ankle disability was unrelated to service. Moreover, with regard to the years-long evidentiary gap in this case between the 1983 in-service injury and the earliest manifestations of a right ankle disability in October 2015, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In sum, there is no credible evidence of right ankle injury or right ankle disorder symptoms in service or until decades after service, and no medical evidence linking the current disorder to service. As to the Veteran’s own lay statements, the Board again points out that her account of injury and treatment lacks credibility. As the predicate for her opinion lacks probative value, so does her ultimate conclusion. In any event, the Board finds that under the facts in this case, the determination of the origin of an ankle disorder that the credible evidence establishes first arose decades after service is beyond the competency of a layperson such as the Veteran to assess. Since the competent and credible evidence on file does not establish an in-service right ankle injury or disorder, and the competent evidence does not establish a link between the current disorder and service, the Veteran’s claim for entitlement to service connection for a right ankle disability is denied. REASONS FOR REMAND By this remand, the Board makes no determination, express or implied, concerning the credibility of the Veteran’s statements and contentions. 1. Entitlement to service connection for a right shoulder disability is remanded. Remand is required for a VA examination. VA did not provide the Veteran with an examination for her claimed right shoulder disability, though such development is necessary in this case. Here, VA treatment records note the Veteran’s reports of right shoulder pain that began during service when a wall fell on her. See, April 2017 and July 2017 VA treatment records. The Veteran also testified during her April 2019 hearing that she continued to experience occasional pain and weakness in her right shoulder that began during active duty service. Accordingly, competent evidence of symptoms of a disability has been presented. The record indicates that the Veteran’s suffered an in-service injury to her right shoulder although conflicting evidence exists in regard to when and how the injury occurred. The Veteran has reported that she injured her shoulder in 1984 when a wall fell on it. See, April 2017 VA treatment record, July 2017 VA treatment record, June 2017 correspondence, and April 2019 hearing transcript. The Veteran’s August 1987 report of medical history notes that the Veteran had a painful or trick shoulder that began in 1978 and was caused by lifting her arm overhead. Regardless, the evidence of record has established the Veteran suffered an in-service injury. The Board finds that a VA examination is required to determine the etiology of the Veteran’s claimed right shoulder disability. 2. Entitlement to service connection for a right foot disability is remanded. Remand is also required for a VA examination for the right foot disorder claim. Here, VA treatment records not various disabilities relate to the Veteran’s right foot. November 2015 and October 2016 VA treatment records note a history of painful calluses. And, a January 2019 VA treatment record notes that the Veteran had hyperkeratoses on her right foot and documented sensory neuropathy. Service treatment records support multiple right foot injuries. A July 1987 service treatment record notes that the Veteran had a puncture wound to her right foot. And, an August 1987 report of medical history indicates that the Veteran had foot trouble. The report notes that the Veteran fractured her right toe in 1981 when she walked into an object while barefoot and was treated with a splint and made a full recovery. The record also noted that in 1980 the Veteran had a corn on the bottom of her foot that grew around her bone and that the Veteran had it shaved down each year. The Board finds that a VA examination is necessary required to determine the etiology of the Veteran’s right foot disabilities. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of her claimed right shoulder disability. The Veteran’s electronic claims file must be made accessible to and reviewed by the examiner in conjunction with the examination. This review should include the Veteran’s service treatment records, post-service medical treatment records, the April 2019 hearing transcript and the assertions of the Veteran and her representative, along with any other information the medical professional deems pertinent. A note that this information was reviewed should be included in the opinion. The examiner must identify any right shoulder disability present. For any such right shoulder disability identified, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or more probability) that the Veteran’s right shoulder disability is etiologically related to service. 2. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of her right foot disability(ies). The Veteran’s electronic claims file must be made accessible to and reviewed by the examiner in conjunction with the examination. This review should include the Veteran’s service treatment records, post-service medical treatment records, the April 2019 hearing transcript and the assertions of the Veteran and her representative, along with any other information the medical professional deems pertinent. A note that this information was reviewed should be included in the opinion. The examiner must identify each right foot disability present. For each such right foot disability identified, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or more probability) that the right foot disability is etiologically related to service. 3. Then, readjudicate the claim. If the determination of the claim remains unfavorable to the Veteran, then issue a Supplemental Statement of the Case and afford her a reasonable period of time to respond before returning the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, 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.