Citation Nr: 21024408 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-07 338 DATE: April 22, 2021 ORDER Entitlement to service connection for a right leg disability, to include a disability of the tibia and fibula, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s right leg disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for a right leg disability, to include a disability of the tibia and fibula, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from October 1975 to March 1977. This matter comes to the Board of Veterans’ Appeals on appeal from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2020 at which time it was remanded for further development. The Board finds substantial compliance with the December 2020 remand directives. The Veteran testified before the undersigned Veterans Law Judge in a virtual hearing in October 2020. A transcript of the hearing has been associated with the file. Service Connection Service connection may be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a causal relationship between the two. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first 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). Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a right leg disability, is denied. The Veteran contends that his current right leg disability stems from a broken fibula in service. Taking the foregoing service connection elements in order, to satisfy the first element of Shedden the Veteran must show a current disability. The Veteran was diagnosed with a right tibia fracture. Therefore, element one of service connection has been met. As to the second element of Shedden, for service connection the Veteran must show an in-service incurrence or aggravation of a disease, event, or injury. The Veteran testified, and his service treatment records (STRs) confirm, he fractured his right distal fibula during a football game in-service. See Hearing Testimony, Page 3; VA 21-526, August 2014. Therefore, element two of service connection has been met. As to the last element of Shedden, for service connection the Veteran must show a causal relationship between the current disability and the in-service disease, event, or injury. A Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) was completed in October 2014. The VA examiner noted the in-service fibula fracture would not contribute to the development of a tibia fracture years later and a tibia fracture would not represent a refracture of the in-service fibula fracture. However, he went on to include that “it is difficult to associate the Veteran’s current right lower leg tibia condition with his military service.” This opinion is speculative, as evidenced by his phrasing “it is difficult.” See Polovick v. Shinseki, 23 Vet. App. 48 (2009) (a medical opinion is speculative when it uses equivocal language such as “may well be,” “could,” or “might.”). Therefore, the Board remanded for a new opinion. The Veteran was provided a Knee and Lower Leg Conditions DBQ in January 2021. A 1976 diagnosis of right distal fibula fracture was noted. The examiner concluded that it was less likely than not that his right leg disability was related to service. The rationale provided was that a review of the relevant records showed the Veteran sustained a fractured right distal fibula in service. Post-service he sustained a fracture of the tibia, which required surgery. Service treatment records are silent for right leg pain/disability from service until 1999 when he underwent the surgery for a fractured tibia. According to medical literature, many patients who undergo surgery to treat a tibial shaft fracture have life-long consequences. During the examination, no flare-ups were reported. The Veteran reported having right knee pain when he is ascending/descending stairs or with prolonged standing or hiking. Initial range of motion for both the right and left knee were normal, with no pain on examination. For muscle strength testing, the Veteran scored 5/5 on the right knee flexion and extension. No muscle atrophy, ankylosis subluxation, lateral instability, or effusion were noted. No joint instability of the right knee was noted. In this case, there is no established correlation, “nexus,” between the current disability and the Veteran’s military service. Despite his contentions to the contrary, the weight of the competent evidence does not attribute the Veteran’s current right leg disability to active military service. Specifically, no competent medical professional has opined that his right leg disability is related to service. The Veteran is not competent to relate his tibia fracture to the in-service fibula fracture as he has not been shown to have the medical experience to provide such an opinion. The Board finds the January 2021 medical opinion to be highly probative, as well as the portion of the October 2014 examiner’s opinion that the fibula fracture would not contribute to the development of a tibia fracture years later and a tibia fracture would not represent a refracture of the in-service fibula fracture. The examiners’ opinions, taken together, are probative because they are based on an accurate medical history, include consideration of the Veteran’s contentions, and provide an explanation that contains clear conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Veteran has a current diagnosis of a right leg disability, and evidence shows in-service complaints, the preponderance of the evidence weighs against finding that the Veteran’s right leg disability began during service or is otherwise related to an in-service injury, event, or disease. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Therefore, the claim for service connection must be denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Krista Johnson, 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.