Citation Nr: 21022936 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 13-32 922 DATE: April 19, 2021 ORDER Entitlement to service connection for a left ankle disability, to include as secondary to service-connected traumatic brain injury (TBI), is denied. Entitlement to service connection for a right ankle disability, to include as secondary to a left ankle disability or service-connected TBI, is denied. FINDINGS OF FACT 1. The Veteran’s left ankle disability did not begin during service, is not related to an in-service injury, event, or disease, and is not caused or aggravated by a service-connected disability. 2. The Veteran’s right ankle disability did not begin during service, is not related to an in-service injury, event, or disease, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle disability have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a right ankle disability have not been satisfied. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 2003 to May 2004 and on active duty for training from November 2000 to June 2001, with additional service in October 2007, to include service in Southwest Asia. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, the Veteran testified at a hearing. Due to a recording error, a transcript of that hearing could not be produced, and the Veteran elected to have another hearing. In July 2016, the Veteran testified at another hearing before a Veterans Law Judge. A transcript of that hearing is of record. In September 2015, October 2016, and September 2017, the Board remanded the right ankle issue for additional development. In June 2018, February 2019, and September 2020, the Board remanded the right and left ankle issues for additional development. These issues have now returned to the Board for adjudication. Unfortunately, some of the Veteran’s service medical records are unavailable. The Veteran has been properly notified of the unavailability of these records. See August 2010 VA Memo. The Board notes that VA’s duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, are therefore heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993). However, the heightened duty does not lower the legal standard for proving a claim; rather, the Board’s obligation to discuss and evaluate evidence is heightened. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Service connection may additionally be granted for disability resulting from injury incurred in or aggravated while performing active duty for training (ADT) or inactive duty for training (IADT) or a disease incurred or aggravated while performing ADT. 38 U.S.C. §§ 101(24), 106. VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Left Ankle Disability The Veteran contends that he has a left ankle disability that was caused by his active duty service, to include as due to his service-connected TBI. See March 2018 Substantive Brief. The Veteran has a current left ankle disability. For example, at his November 2020 VA examination he was diagnosed with left ankle sprain. Thus, the remaining question is whether the current left ankle disability is related to service or a service-connected disability. Service treatment records (STR) show a March 2001 note where the Veteran complained of a left ankle pain after twisting his ankle. It was assessed as a left ankle sprain. A left ankle disability is not shown by medical evidence until approximately 2010, several years after the Veteran’s separation from service. A February 2020 VA medical opinion was provided regarding the Veteran’s left ankle. The examiner opined that the left ankle disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner opined that there was no information in the STR to indicate that the Veteran developed a left ankle disability during service. The same examiner provided an opinion addressing secondary service connection. The examiner opined that the left ankle disability was less likely than not proximately due to or the result of the Veteran’s service-connected TBI. In support of this conclusion, the examiner explained that all relevant documents have been reviewed and there was no information to indicate that the Veteran developed his left ankle disability as a result of TBI. Addressing aggravation, the examiner opined that there was no information in the medical records to indicate that the Veteran’s left ankle disability was worsened beyond its natural progression as a result of TBI. Thus, the examiner opined that after reviewing the medical record, the left ankle disability was less likely than not aggravated beyond its natural progression by TBI. The Veteran presented for a VA examination in November 2020, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the left ankle condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner explained that the records document a left ankle sprain in March 14, 2001 with pain that had been present for 1 day. The examiner noted that chronic pain reported at that time was expected. The examiner indicated that there was no additional treatment, complaint, or diagnosis for the left ankle while in active service. The examiner noted that the April 2004 report of medical assessment which was filled out and signed by the Veteran was negative for any ankle injury, symptoms, or diagnosis. The examiner noted that there was no bruising of the ankle at the time of the 2001 sprain which suggests that the sprain was mild. The examiner further noted that the sprain is assumed to have been resolved. In making this determination, the examiner explained that there were no left ankle issues reported until October 13, 2010, 3 years after the Veteran left active service. The examiner noted that during the October 2010 hospital visit, it is documented that the Veteran had a steady gait, could heal/toe walk without difficulty and walked 2 miles a day. Regarding secondary service connection, the examiner opined that the left ankle condition was less likely than not proximately due to, the result of, or aggravated by the Veteran’s service connected TBI. In support of this conclusion, the examiner explained that the first left ankle injury occurred prior to the TBI. The examiner further explained that the records indicate that the left ankle sprain in March 2001 was resolved. The examiner noted that during the November 2011 TBI disability benefits questionnaire, it was determined that the Veteran’s motor activity was normal. The examiner noted that the Veteran has had normal activity regarding jobs since the presumed TBI as the type of jobs he held involved active thought process and normal physical use of the body. The examiner further noted that when discussing the physical deficit residuals, the problems are typically a result of more severe brain trauma that can result in mobility problems, spasticity, weakness or paralysis, ataxia, and sensory impairment. The examiner indicated that the Veteran had mild brain trauma and none of these conditions have been experienced by the Veteran. The Board finds February 2020 VA medical opinion addressing direct service connection to be less probative as it did not take into consideration the Veteran’s report of left ankle sprain in March 2001. In contrast, the Board finds the remaining VA medical opinions highly probative as they were made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinions are also supported by other evidence of record. There are no medical opinions or competent and credible evidence in significant conflict with the VA medical opinion. Upon consideration of the evidence of record, the Board finds that the evidence is against a finding of service connection for a left ankle disability based on a direct and secondary theory of entitlement. As noted above, the Board gives less probative weight to the February 2020 medical opinion as it did not address the March 2001 left ankle sprain. The record is absent of any medical opinion that supports either a direct or secondary service connection. The Board gives significant probative weight to the February 2020 medical opinion that addressed secondary service connection, and the November 2020 medical opinion that addressed both theories of entitlement as they were given by medical professionals after conducting an examination and reviewing the record. Notably, the medical evidence of record shows that while the Veteran did report left ankle sprain in March 2001, the remaining records do not document any left ankle problems until 2010, several years after his military service. The examiners considered the Veteran’s in-service reports but found that the left ankle sprain was mild in severity and the record indicate that condition resolved as there were no reports concerning the left ankle until 2010. Furthermore, the examiners found that secondary service connection was not warranted. In making this finding, the examiners reviewed the record, to include articles related to TBI, and found that the left ankle was not caused or aggravated by the service-connected TBI. Of note, the examiners opined that examination findings for TBI did not indicate any symptoms that would have an effect on the left ankle. As the evidence of record is against the claim, service connection based on direct and secondary service connection is not warranted. The Board has considered the Veteran’s statements, to include his assertions that his left ankle disability was caused by his military service. Specifically, the Veteran asserts that his duties as a combat veteran, military training, repetitive use, overuse of ruck marches, and twisting of his left ankle in March 2001. See November 2015 Third Party Correspondence, March 2018 Substantive Appeal, January 2021 Third Party Correspondence. The Veteran further argues that the November 2020 VA medical opinion is inadequate as the examiner had assumed that the left ankle sprain had resolved. See January 2001 Third Party Correspondence. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., ankle pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. The Board notes that the examiner considered the record to include the Veteran’s reports and his in-service complaints, and determined that the left ankle was not the result of his military service. The Board further notes that the medical examiner supported the conclusion that the left ankle in March 2001 had resolved by explaining that the Veteran did not report, and record is silent, as to any issues related to the left ankle until 2010, about 3 years after leaving service. This was also 8 years after suffering the March 2001 sprain. The examiner also noted that an April 2004 report of medical assessment was silent of any indication of a left ankle injury or symptoms. The Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. The Board acknowledges the articles submitted by the Veteran and his representative. See March 2018, July 2020, January 2021 Correspondence. However, the articles were not accompanied by any probative opinion from a medical expert, nor were they specific to the facts of the Veteran’s case. As noted above, while the Veteran is competent to describe experiencing symptoms related to his left ankle disability, he is not shown to possess any medical expertise and his opinion as to the etiology regarding left ankle disability is not competent medical evidence. The Board finds the VA medical opinions more probative than the Veteran’s lay statements and the articles submitted, as they were offered by medical professionals after examination of the Veteran and consideration of the history of the disability, and as the opinions are supported by a clear rationale. Given the Veteran’s service in Southwest Asia, the Board has considered whether service connection could be awarded for an undiagnosed illness under 38 C.F.R. § 3.317. In this case, section 3.317 is not for application as the Veteran’s left ankle symptomatology is accounted for by a known clinical diagnosis – left ankle sprain. See November 2020 VA examination. For the above reasons, the Board finds the preponderance of the evidence is against a finding that the Veteran’s left ankle disability is related to his military service or a service-connected disability, and service connection must be denied. In reaching the above determination, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Right Ankle Disability The Veteran contends that he has a right ankle disability that was caused by his active duty service, or is secondary to his left ankle disability and service-connected TBI. The Veteran has a current right ankle disability. For example, at his November 2016 VA examination he was diagnosed with achilles tendon rupture of the right ankle, displaced calcaneal fracture of the right ankle, and arthritis of the right ankle. See also July 2017 VA Treatment Record. Thus, the remaining question is whether the current right ankle disability is related to service or a service-connected disability. Service treatment records show no complaints, diagnosis, or treatment related to a right ankle disability. A right ankle disability is not shown by medical evidence until approximately 2014, many years after the Veteran’s separation from service. As a right ankle disability is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of a right ankle disability is not shown, in-service incurrence of a right ankle disability cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). The Veteran presented for a VA examination in November 2016, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the right ankle disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner explained that the Veteran reported having a history of right ankle sprain and that he sprained his right ankle twice during basic training. He reported that it became easy to sprain his ankle and he sprained it a few times a year during and after service. He further reported that he shattered his right heel and completely tore his right Achilles tendon two years ago. The examiner noted that the history reported by the Veteran is consistent with his injury in 2015 and the medical records indicate a repair of his right calcaneus using open reduction and internal fixation to repair the fracture. The examiner reviewed the STR and noted that the STR does not support the Veteran’s verbal history of chronically recurring right ankle sprains. The examiner noted that the Veteran did not mention chronic right ankle condition in his DD 2697 on April 2004 and on his October 2007 pre-deployment assessment. The examiner noted that the Veteran medically separated in 2007 for syncopal episodes and seizure disorder, but no medical board summary was found on review that would be expected to have listed all potentially disqualifying medical condition at that time. The examiner noted that the Veteran’s right calcaneus and right Achilles tendon disruption are clearly due wholly to his having jumped from a wall and landing on concrete on October 2014. The examiner further explained that neither of these injuries is attributable to his reported history of recurrent ankle sprains. The examiner noted that the only reported medical procedure involved the right calcaneus and right Achilles tendon, and is unrelated to any prior condition. Regarding secondary service connection, a February 2020 VA medical opinion was provided to address the right ankle disability. The examiner opined that the right ankle disability is less likely than not proximately due to or the result of the Veteran’s service-connected TBI, or a left ankle condition. In support of this conclusion, the examiner explained that all relevant documents have been reviewed and there was no information to indicate that the Veteran developed a right ankle disability as a result of TBI or a left ankle condition. Further, the examiner opined that there is no evidence in the medical literature that suggest TBI causes right ankle disability. There was also no medical literature that suggests disability in one ankle causes disability in the opposite ankle. The examiner further opined that the right ankle was not at least as likely as not aggravated beyond its natural progression by TBI, or a left ankle condition. In support, the examiner explained that there was no information in the medical records to indicate that the Veteran’s right ankle disability was worsened beyond its natural progression as a result of TBI. Additionally, there was no evidence in the medical literature that suggests a disability in one ankle causes disability in the opposite ankle. Most recently, the Veteran presented for a VA examination in November 2020, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the right ankle condition was less likely than not proximately due to or the result of the Veteran’s service-connected TBI or the left ankle condition. In support of this conclusion, the examiner explained that the right ankle had a specifically identified event that caused the right ankle injury in 2014. The examiner noted that there was no impact of the left ankle whatsoever on the right ankle injury. The examiner further indicated that the left ankle sprain in March 2001 had resolved. Concerning aggravation, the examiner opined that the right ankle disability was not at least as likely as not aggravated beyond its natural progression by TBI or left ankle condition. In support, the examiner explained that the right ankle condition was an acute trauma with a specific event that was completely unrelated to the left ankle, and there was severe pain that necessitated surgery. The examiner noted that the left ankle sprain that occurred during service was resolved, while the right ankle was a traumatic injury that had an expected course, including surgical repair with residuals. The examiner noted that during the November 2011 TBI disability benefits questionnaire, it was determined that the Veteran’s motor activity was normal. The examiner noted that the Veteran has had normal activity regarding jobs since the presumed TBI as the type of jobs he held involved active thought process and normal physical use of the body. The examiner further noted that when discussing the physical deficit residuals, the problems are typically a result of more severe brain trauma that can result in mobility problems, spasticity, weakness or paralysis, ataxia, and sensory impairment. The examiner indicated that the Veteran had mild brain trauma and none of these conditions, such as mobility problems, have been experienced by the Veteran. Further, the examiner noted that during the November 2020 examination, the left ankle had a very good function with no functional loss of the left ankle to include a limp or effect on gait. The examiner noted that without chronic, long term change of gait on the affected foot, the left, there is no effect on the opposite foot, the right. The Board finds these opinions highly probative as they were made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinions are also supported by other evidence of record. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinions. Upon consideration of the evidence of record, the Board finds that the evidence is against a finding of service connection for a right ankle disability based on a direct and secondary theory of entitlement. The Veteran’s STRs are silent for any reports related to the right ankle. The VA medical examiners considered the Veteran’s reports and found that the Veteran’s right ankle was not caused by his military service. Rather, the examiners noted that the Veteran’s right ankle had a specific onset which was the injury in 2014 that necessitated surgery. Since the Board is denying entitlement to service connection for a left ankle disability above, service connection for a right ankle disability as secondary to a left ankle disability is not warranted. 38 C.F.R. § 3.310. Moreover, the evidence of record is against finding that the right ankle disability is secondary to service-connected TBI. Upon reviewing the evidence of record to include the Veteran’s reports and articles submitted, the examiners found that the right ankle was not proximately due to or aggravated beyond its natural progression by service-connected TBI. The examiner reviewed the examination findings for TBI and found that it did not indicate any symptoms that would have an effect on the right ankle. As the evidence of record is against the claim, service connection based on direct and secondary service connection is not warranted. The Board has considered the Veteran’s statements, to include his assertions that he sprained his ankle on several occasions while in service, and has had to overcompensate with the right ankle as a result of the left ankle injury. See July 2016 Hearing Tr. at 7, 11. Again, the Veteran as a lay person is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. The Board notes that the examiners considered the record to include the Veteran’s reports, and determined that the right ankle was not the result of his military service. Despite asserting that he sprained his ankle multiple times during service, a review of the STR is silent for any right ankle complaints, treatment, or diagnosis. The examiner found that the Veteran’s right ankle onset in 2014. The Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. The Board acknowledges the articles submitted by the Veteran and his representative. See March 2018, July 2020, January 2021 Correspondence. However, the articles were not accompanied by any probative opinion from a medical expert, nor were they specific to the facts of the Veteran’s case. As noted above, while the Veteran is competent to describe experiencing symptoms related to his right ankle disability, he is not shown to possess any medical expertise and his opinion as to the etiology regarding right ankle disability is not competent medical evidence. The Board finds the VA medical opinions more probative than the Veteran’s lay statements and the articles submitted, as they were offered by medical professionals after examination of the Veteran and consideration of the history of the disability, and as the opinions are supported by a clear rationale. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility. Notably, a review of the STRs and the Veteran’s treatment records is silent for any right ankle issues until approximately 2014, many years after the Veteran left military service. As explained by the November 2016 examiner, STRs which would be expected to have documented right ankle problems during service did not do so. Given the Veteran’s service in Southwest Asia, the Board has considered whether service connection could be awarded for an undiagnosed illness under 38 C.F.R. § 3.317. In this case, section 3.317 is not for application as the Veteran’s right ankle is accounted for by a known clinical diagnosis – right achilles tendon rupture, displaced calcaneal fracture, and arthritis of the right ankle. See November 2016 VA examination. For the above reasons, the Board finds the preponderance of the evidence is against a finding that the Veteran’s right ankle disability is related to his military service or a service-connected disability, and service connection must be denied. In reaching the above determination, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.