Citation Nr: 21023426 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-11 483A DATE: April 20, 2021 ORDER Entitlement to service-connection for subtalar arthritis following left ankle strains is denied. FINDING OF FACT The preponderance of the evidence establishes that the Veteran’s left ankle condition was not present until more than one year following discharge and is not etiologically related to active duty service. CONCLUSION OF LAW The criteria for establishing entitlement to service-connection for subtalar arthritis following left ankle strains have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 1966 to November 1970. The Veteran also had additional service in the Army National Guard of Idaho from June 1988 to July 2003 This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in August 2019, it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with a VA examination by a qualified podiatrist to determine the etiology of his claimed left ankle condition. The Board notes that the RO made several attempts to fulfill this remand directive. The Veteran cancelled one such examination because he could not travel the distance to where it was located. He was then scheduled for a contract examination which was performed by a Family Practice specialist, not a podiatrist. However, the Veteran noted that he was unable to travel the distance for an examination with a podiatrist, as per the Remand orders, and preferred to submit the report of the family practice doctor as is. The Board notes that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, it was incumbent upon him to cooperate with the VA in developing his claims. The Veteran was provided with opportunities to receive an examination by a podiatrist which he cancelled. He was then provided a December 2020 VA ankle conditions examination by a family practice specialist and waived the requirement that a podiatrist examine him. As such, the Board finds that the AOJ substantially complied with the directives in the August 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection—Legal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran seeks service connection for his left ankle disability which he contends is etiologically related to his active duty service. The Board notes that the Veteran has a current diagnosis of left ankle degenerative arthritis. See December 2020 VA Ankle Conditions examination. Therefore, the central issue that must be resolved is whether the Veteran’s current disability originated in service or are otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially the Board notes that the Veteran’s service treatment records (STRs) do contain treatment for a left ankle injury. Specifically, the treatment notes indicate that during a National Guard annual physical fitness test in April 2003 he twisted his left ankle. Further, during a May 2003 make up test he injured his ankle again and was diagnosed with left ankle sprain. The Board notes that in a May 2003 note dated after his second injury, the physician indicated that the Veteran called and reported he was “doing fine.” Multiple references are also made to a motorcycle accident in 1975, prior to the Veteran’s active duty service. Additionally, the Board notes that references are made in later VA treatment records to an additional fracture of the left foot and ankle in 1976 that required a cast for 4 to 6 weeks, also during a break period in the Veteran’s service. The Veteran’s private and VA treatment records indicate that he has received treatment for his left ankle condition since at least 2007. As the record contains evidence of a current disability and, an in-service injury, the evidence needs to reflect a nexus between his in-service ankle sprains and his currently diagnosed left ankle disability. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician’s statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). The following evidence has been afforded little weight for the reasons described below. In the March 2008 VA examination, a VA orthopedic surgeon opined that the Veteran's severe osteoarthritis was not the result of his 2003 ankle injuries. The examiner noted the Veteran had a left foot fracture in 1975 that required a cast for 4 to 6 weeks and that in 1976 he fractured his left foot and ankle and again required a cast for 4 to 6 weeks. The examiner noted that the 1975 fractures were significant and required skin grafting. The examiner opined that the Veteran’s current osteoarthritis is not caused by the 2003 ankle injuries noting that the motorcycle accident from the 1970's was probably the original source of the condition. However, The examiner’s comments that "the simple running of a PT test might exacerbate the condition resulting in forefoot and hind foot pain" - could be read to suggest that there is the possibility that the condition was aggravated during service. Though the examiner does not offer an opinion on this matter. The examiner also does not opine as to whether any pain during service was acute or entailed a permanent worsening of the condition. For these reasons, the opinions are afforded little probative weight. The Veteran submitted a November 2007 private medical opinion from a Dr. C.C. In this opinion, Dr. C.C., based on a history provided by the Veteran, noted that the Veteran had an injury during a physical training test with no previous complaints of ankle or foot pain. Dr, C.C.’s opinion does not address the fact that the Veteran sustained a left foot injury as a result of a motorcycle accident in 1975 or an additional fracture in 1976. As a result, the Board finds that the opinion from Dr. C.C. is premised on an inaccurate factual basis and entitled to no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-6 1 (1993) (finding that a physician's opinion based on an inaccurate factual premise has no probative value). A July 2010 VA examiner opined that the Veteran’s progressive arthrosis was most likely caused by, or the result of, injuries during his period of INACDUTRA. However, in an August 2010 addendum, the examiner indicated that he believed he erroneously relied on a report that was not in the record, and that he now must heavily weigh the opinion offered by the March 2008 VA examiner. Given the conflicting opinions offered by the examiner, and the absence of a rationale for his later addendum opinion, the opinions offered by this examiner are afforded no probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value from such opinions come from their reasoning). There are multiple probative opinions regarding the Veteran’s left ankle disability which will now be discussed below. In August 2007, the Veteran was afforded a VA examination regarding his ankle disability. The examiner opined that the Veteran’s left foot and ankle disabilities were less likely than not (less than a 50 percent probability) caused by or a result of his running injuries in 2003. The rationale provided was that an x-ray in 2003, taken shortly after the twisting injury, documented the presence of pre-existing degenerative changes. The examiner noted that prior to the 2003 injury the Veteran could pass physical fitness tests involving running and could not pass that portion of the physical fitness test after the injury, which could support a hypothesis of aggravation in 2003. However, the examiner opined that the Veteran’s condition was not aggravated by his in-service injury. The examiner explained that the Veteran reported “doing fine” shortly after his 2003 injuries and that he was able to run 3 miles in 2006 and his foot did "okay." The examiner opined that the Veteran suffered an acute exacerbation of his previous left foot and ankle fractures in April 2003 and again in early May 2003 that had resolved as of May 19, 2003. The Veteran submitted a May 2010 private medical opinion from a S.G., D.P.M. In this opinion, S.G. opines that there was no evidence of sequelae from the Veteran’s motorcycle accident in 1975 that can be directly related to his current left foot disability. The rationale he provides is that the Veteran was able to serve in the Marine Corps and the Army National Guard without lower extremity problems until 2003, and that he passed his PT without issue. The Veteran was provided with an April 2013 VA examination regarding his claimed condition. The examiner opined that the Veteran’s disability was less likely than not (less than a 50 percent probability) incurred in, or caused by, the Veteran’s claimed in-service injury. The examiner cited as support for his opinion records showing the Veteran reported he was "doing well" after his April 2003 and May 2003 ankle sprains. The examiner noted that the Veteran was seen after he left the National Guard for chest wall pain in December 2005, with no mention of ankle or foot pain, and left rib pain in September 2006, again with no reference to ankle or foot pain. The examiner also noted that the Veteran did not seek treatment for his left ankle until 2007, several years after he left service. The examiner concluded by noting that based on the report of the Veteran that he was "doing fine" on May 19, 2003, and the lack of treatment for his left ankle for almost 4 years after service, that it was less likely than not that the Veteran's arthritis of the foot and ankle are related to his ankle sprains in 2003. The Veteran submitted a May 2019 private opinion from a Dr. K.W.A. In this opinion, Dr. K.W.A. indicated that the Veteran rolled his left ankle while in service and that since that time he has had ankle instability. Dr. K.W.A. continued that the Veteran’s instability has worsened, and he is scheduled for ankle ligament surgery. However, Dr. K.W.A. does not provide an etiology opinion for the Veteran’s current ankle condition, nor does he indicate a review of the Veteran’s records. In response to the Board’s August 2019 Remand, the Veteran was provided with a December 2020 VA Ankle conditions examination. The December 2020 examiner opined that the Veteran’s currently diagnosed disability was less likely than not (less than a 50 percent probability) incurred in, or caused by, the claimed in-service injury. The rationale provided was that the Veteran has documentation of an injury to his foot with a motor vehicle collision in 1975, which is outside of his period of active duty. The examiner continued that although the Veteran did sprain his ankle in 2003 this isolated injury would not be likely to cause his significant chronic ankle issues. The examiner noted that the Veteran then had subsequent evaluations at the Boise VAMC in 2007 and with Idaho Foot and Ankle Clinic podiatrist in 2007 where the podiatrist opined that "[h]is ankle instability is more than likely a results of his past ankle sprain while in the military." However, the examiner noted that this opinion was given without any access to the Veteran's STRs and of note no awareness of the fact that only one injury was documented during active duty in 2003. The examiner stated that May 2003 injury was, in his opinion, still related to the Veteran’s April 2003 ankle sprain. Further, the examiner stated that the Veteran had an ankle injury in 1975 outside of active duty and then sprained his ankle in 2003 in an isolated event with the Veteran then having no documented ankle pain/condition until 2007 when seen by his primary care provider and referred to Idaho Foot and ankle clinic. Therefore, the examiner indicated he is unable to provide a nexus between the isolated ankle sprain in 2003 and his diagnosis with surgery 4 years later. The Board recognizes that the Veteran suggested that his pre-existing left ankle disability was aggravated during his 2003 period of INACDUTRA. Upon review, however, the Veteran was not afforded an examination prior to the relevant period of INACDUTRA service and the presumption of soundness does not apply. See Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). Furthermore, since the claim is based on the Veteran's period of INACDUTRA, the presumption of aggravation is also not applicable. Id at n. 7. As a result, in order to succeed in a claim based on aggravation, the Veteran must establish that the condition worsened during the period of INACDUTRA and that the worsening was caused by the period of training. Id. The Board finds that the Veteran has not met this burden. As described above, the most probative evidence of record indicates that the Veteran only suffered acute exacerbations of a pre-existing injury in April 2003 and May 2003. Here, the Board gives greater weight to the VA examiners’ opinions—particularly the August 2007 and December 2020 examinations—opining against a nexus over the opinions provided by S.G. and Dr. K.W.A. The VA examiners reviewed the entirety of the Veteran’s claims file and explained their opinions with appropriate rationale. Additionally, the August 2007 examiner, and the December 2020 examiner, took into account that the Veteran was able to serve in the reserves and pass physical fitness tests prior to his 2003 injuries and yet still offered adverse opinions. In contrast, Dr. K.W.A. did not indicate whether a review of the Veteran’s records had been undertaken. Additionally, S.G. did not account for the Veteran's self-report of "doing fine" in May 2003 and did not account for the spurring over the dorsum of the mid to hindfoot shown on x-ray in May 2003 which the August 2007 examiner described this as "pre-existing degenerative changes." The Board may afford greater weight to one opinion over another on the basis of such factors as the reasoning employed, whether the opinion is based on sufficient facts and data, and whether the opinion is based on medical principles applied to the facts of the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As stated previously, for the reasons noted above, the Board affords greater weight to the VA examiner’s opinions. The Veteran has provided lay statements where he has stated that he believes his disability is etiologically related to his active duty service, specifically his injury in 2003. The Board weighs the above-mentioned VA examinations against the Veteran’s lay contentions that his lumbar conditions are due to his service-connected disability. While the Veteran is competent to testify to his symptoms, he is not competent to provide a medical opinion as to the etiology of his disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds the VA examinations, which opined against a link between the Veteran’s currently diagnosed disability and his service, to be of high probative value. Additionally, the Board notes that the Veteran did not seek treatment for, or report any, ankle conditions until 2007, 4 years after he left active service. Given the above, the Board finds that the Veteran's claim for service connection for left foot subtalar arthritis must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990 T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.