Citation Nr: 21022504 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 15-32 708 DATE: April 16, 2021 ORDER Service connection for a left ankle condition is denied. Service connection for bilateral foot calluses is denied. FINDINGS OF FACT 1. The Veteran’s left ankle condition, diagnosed as left ankle degenerative arthritis, did not manifest during active service and is not otherwise related to active service. 2. The Veteran’s calluses of the feet are in a different location than those identified during active service and are not otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a left ankle condition, diagnosed as left ankle arthritis, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for establishing service connection for bilateral foot calluses have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1973 to September 1976. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision. In November 2018, the Veteran testified before a Veterans Law Judge (VLJ) at a live videoconference Board Hearing. A transcript of the hearing is of record. In February 2021, the Veteran was informed that the Veterans Law Judge who conducted the November 2018 hearing was no longer at the Board, and he was afforded the opportunity to request another Board hearing. The Veteran did not respond to this correspondence, and it is presumed that he does not desire another Board hearing in place of the November 2018 hearing. These issues were previously before the Board in June 2019 when they were remanded for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for a disability shown after service, when all the evidence, including that pertinent to service, shows it was incurred in service. 38 C.F.R. § 3.303 (d). To establish direct service connection for a disability, the record must reflect: (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Shedden v. Principi, 381 F.3d 1163 (2004). There is a rebuttable presumption of service connection for certain chronic diseases, including arthritis, if the disease manifested during service or to a compensable degree (a degree of 10 percent or more) within one year of separation from active service. 38 U.S.C. §§ 1101, 1113; 38 C.F.R. §§ 3.307, 3.309(a). If a chronic disease is shown in service or within the requisite time period described in 38 C.F.R. § 3.307(b), subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Where chronicity during service or within the presumptive period is not, in fact, shown, then a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third elements of service connection. See Savage v. Gober, 10 Vet. App. 488, 495-496 (1997). The theory of continuity of symptomatology does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Service connection for a left ankle condition is denied. The Veteran is seeking service connection for a left ankle disability which he believes is related to his active service. He reported suffering an injury to his left ankle during service in Kentucky when he fell down a ravine. He stated that he sought medical attention and was diagnosed as having a sprain; his ankle was reportedly wrapped and casted. The Veteran testified that he had a second left ankle injury when he slipped on snow and fell down some steps, but did not seek treatment. After that, he reportedly ran with a limp. He testified that with the Airborne Rangers, he was “not allowed to go out on sick call and stuff unless it was matter of life and death,” so he just lived with the condition. He stated that the pain never resolved and he now experiences constant pain in his left ankle. See VA examination report, dated August 2012; Hearing transcript, dated November 2018. Further, the Veteran stated that he was always advised to wrap his ankle with an ace bandage and to ice it, so for many years he treated himself as he did not have insurance. Since being advised that he was eligible for VA healthcare, he enrolled and received care from VA. The Veteran’s service treatment records show that he sprained his right ankle in May 1974 and was provided ace wraps and a crutch. In January 1976, he was seen for a sprained left ankle which was wrapped with bandage, and elevation and light duty were recommended. A January 1976 x-ray of the left ankle was normal. On separation from service in August 1976, the Veteran denied any foot trouble and examination of his feet and lower extremities was normal. Post service, VA treatment records show that the Veteran complained of ankle pain in October 2012 and May 2013. A May 2013 x-ray evaluation of the ankles exhibited no acute abnormality. The assessment was pain in the ankles of uncertain etiology. The Veteran was afforded with a VA examination in January 2020. The examination report notes a diagnosis of left ankle degenerative arthritis. The examiner found it is less likely than not the Veteran’s left ankle condition was incurred in or caused by military service. The examiner noted that during service the Veteran was diagnosed with left ankle sprain in January 1976 and treated with Ace wrap and light duty for five days. The examined noted that there were no further entries found documenting a left ankle condition or pain, or other complaint while Veteran was serving on active duty. The examiner noted that per Harvard Health guidelines, a typical grade two ankle sprain which has symptoms of pain with weight bearing and walking, will recover in three to six weeks. The examiner stated that no records were found to establish a chronic condition, and ankle sprains are presumed acute as more than 60 percent of sprains heal without complications. Additionally, there are no records found to establish continuity with a current diagnosed ankle condition as the only condition noted in records is degenerative arthritis, which is degenerative and attributed to aging, and it is present in both ankles. Given these findings, the examiner stated that it was less likely than not that the claimed ankle condition was incurred in or caused by military service. The January 2020 VA medical opinion is probative, as it represents the conclusion of a medical professional based on review of the Veteran’s pertinent medical history, and is supported by an explanation that is sufficient for the Board to make an informed decision. The Board has considered the Veteran’s statements that he has experienced left ankle symptoms ever since his in-service injuries. These statements are not sufficient in themselves to establish the fact, as he may have misremembered or misrepresented the history of his left ankle problems. They are outweighed by the service treatment records, which were made contemporaneous in time to his military service. While the Veteran has reported suffering two left ankle injuries during service, the first of which required that he use crutches, his service treatment records clearly document that his injury in May 1974 was to his right ankle, not his left ankle. He was provided a crutch following his right ankle injury in May 1974. In January 1976, the Veteran suffered a sprain of his left ankle which was wrapped with an ace bandage. For the remaining eight months of service, he did not seek treatment for any left ankle complaints. Further, on separation examination in August 1976 he specifically denied any foot trouble, lameness, arthritis, rheumatism or bursitis, and any bone, joint or other deformity. Clinical evaluation of his feet and lower extremities was normal at that time. The Board finds it implausible that the Veteran would not have reported left ankle symptoms, which he described as causing him to run with a limp, in any of these records, had such been present, when he readily sought treatment for or reported other conditions, including calluses on his feet in July 1976, irritation of his chest muscle in August 1976, and tooth and gum trouble on separation examination in August 1976. Further, the Board does not find that the Veteran’s statement that he did not seek treatment because as an Airborne Ranger he was “not allowed to go out on sick call and stuff unless it was matter of life and death” to be credible, as his service treatment records document treatment for numerous conditions, including rashes, headaches, stomach pains, head colds, dysuria, and a right finger injury. The Veteran’s suggestion that his current left ankle symptoms or condition are related to his in-service injury are predicated on the assertion that he has had recurrent left ankle symptoms since then. Because the evidence does not establish that premise, as explained above, there is no support for a link on that basis. The Veteran has not otherwise provided an explanation or evidence supporting a link to service. The issue of whether a left ankle sprain could result in degenerative arthritis or other ankle problems years later is a medical determination, as such a relationship cannot be perceived through lay observation alone. Accordingly, as a lay person in the field of medicine, the Veteran’s statements that his current left ankle disability is related to his in-service injury are not competent evidence. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). They are outweighed by the January 2020 VA medical opinion, which the Board finds is probative on the issue. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, as a nexus to service is not established, the criteria for service connection on a direct basis are not met. See Holton, 557 F.3d at 1366. The evidence does not show that the Veteran had arthritis of the left ankle during service. To the contrary, a January 1976 x-ray of the left ankle was normal. The evidence does not show that arthritis manifested or was noted during service or until years after separation, service connection under the presumptive provisions applicable to chronic diseases may not be established. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Considering the foregoing, the Board finds the preponderance of the evidence weighs against entitlement to service connection for a left ankle condition. In reaching the above conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not for application in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 56-57. 2. Service connection for bilateral foot calluses is denied. The Veteran contends his bilateral foot calluses are related to his active service. He testified in November 2018 that he had calluses on his feet during service, but “a lot of times, like I said, once again by being a Ranger, we deal with the pain as best we could.” In a March 2013 Notice of Disagreement, regarding his active service and his bilateral foot calluses, the Veteran reported that during active service he was advised to just “tough it out,” to change his socks frequently, and walking in his boots made the condition worse. After service, he stated that he was first treated for his calluses by a private physician between 1995 and 1998. The examiner reportedly gave him a shot to relieve the pain. The Veteran’s service treatment records show treatment for bilateral foot calluses on the balls of his feet, as shown on a diagram, in July 1976. He was provided with innersoles and returned to duty. On separation from service in August 1976, the Veteran denied any foot trouble and examination of his feet was normal. The Veteran was established as a new patient at VA in February 2012. In March 2012, he complained of pain of both feet that had been present for about 35 years and “that some podiatrist had treated with a shot that made the pain worse.” The Veteran stated that he was told that he needed surgery then, but did not want it and that he now shaves down his callus with a “ped egg.” Examination showed two calluses at the areas of pain. The Veteran was afforded a VA examination in January 2020. A diagnosis of bilateral foot calluses was noted. The examiner stated that Veteran had evidence of calluses on the right and left plantar surface in July 976 and that, after review of available records, the next documentation of a foot callus is noted in 2012 when Veteran was evaluated by VA and treated by podiatry for a foot callus times two. The examiner noted that the Veteran is competent to report symptoms. However, per current Mayo clinic guidelines on corns and calluses, for most people simply eliminating the source of friction or pressure makes corns and calluses disappear. The examiner stated: For the Veteran the reported source of friction was performing physical training and duties while wearing issued boots, while on active duty. Between the years of 1976 and 2012, some 36 years, there is no evidence found of ongoing foot callus condition. When the Veteran established care at the VA in 2012 it was noted that he had diagnosis of Diabetes which increases risk of calluses. Upon examination of the feet it was noted that Veteran had calluses on the plantar surfaces underlying the left and right 5th MTP joints, not in the same location as documented when Veteran had calluses in 1976, which was underlying the 1st MTP joints. Given these findings, it is thus noted that there is no evidence for continuity; current guidelines note that eliminating friction resolves callus, thus the callus diagnosed while serving on active duty is presumed acute and resolved; the Veteran currently has a co-morbid condition which results in calluses and complications since at least 2012; and the location of calluses is not consistent between 1976 and 2020. Considering all evidence and lay statements, it is thus less likely than not that the claimed condition of bilateral foot calluses was incurred in or caused by foot calluses during service. The January 2020 VA medical opinion is probative, as it represents the conclusion of a medical professional based on review of the Veteran’s pertinent medical history, and is supported by an explanation that is sufficient for the Board to make an informed decision. The Board has considered the Veteran’s statements that he has experienced calluses on his feet ever since service. Calluses are an observable condition, and the Veteran is competent as to his observation of calluses. However, these statements are not sufficient in themselves to establish the fact, as he may have misremembered or misrepresented the history of his calluses. As noted above, the Veteran’s service treatment records show treatment for bilateral foot calluses on the balls of his feet, i.e., under the 1st MTP joints, in July 1976. However, the current calluses on his feet, documented since March 2012, are in a different location, i.e., under the 5th MTP joints. As the January 2020 VA examiner explained, current guidelines note that eliminating friction resolves calluses, thus, the callus diagnosed while serving on active duty is presumed acute and resolved. Because the in-service calluses and current calluses are in different locations on the Veteran’s feet, the Board finds his statement as to a continuity of symptomatology not to be credible. The issue of whether calluses in one location could result in calluses in a different location on the feet years later is a medical determination, as such a relationship cannot be perceived through lay observation alone. Accordingly, as a lay person in the field of medicine, the Veteran’s statements that his current calluses are related to his in-service calluses are not competent evidence. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). They are outweighed by the January 2020 VA medical opinion, which the Board finds is probative on the issue. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). In light of the foregoing, the Board finds the preponderance of the evidence weighs against entitlement to service connection for bilateral calluses of the feet. In reaching the above conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not for application in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 56-57. P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Denton, Buck 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.