Citation Nr: 21026900 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-33 688 DATE: May 4, 2021 ORDER Entitlement to service connection for a right ankle disability is denied. REMANDED Entitlement to service connection for a left ankle disability is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's right ankle disability began during his service or is otherwise related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a right ankle disability. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1980 to December 1990 and from October 2001 to July 2002. In addition, he retired from Air National Guard and the U.S. Air Force Reserve (USAFR) in August 2012. This appeal to the Board of Veterans' Appeals (Board) is from a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these claims back to RO (Agency of Original Jurisdiction (AOJ)) in October 2018 for further development and consideration, including especially for additional medical comment concerning whether the Veteran's ankle disabilities are the result of injuries sustained while on qualifying duty status in the USAFR. Much of the other development was predicated on the injuries first being confirmed to have been sustained during qualifying service. But, on review of the VA medical examination report from August 2019 and the June 2020 Supplemental Statement of the Case (SSOC), and with sincere apologies to the Veteran, the Board regrettably must again remand the claim for a left ankle disability to ensure compliance or at least acceptable substantial compliance, with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). However, the Board is going ahead and deciding the claim for a right ankle disability. Service Connection Entitlement to service connection for a right ankle disability is denied Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty (AD) and active duty for training (ACDUTRA) and for disability due to injury, though not also disease, incurred in or aggravated by inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(21), (24), 106, 1110, 1131; 38 C.F.R. §§ 3.6(a) and (d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Following the Board's October 2018 remand of this claim, the Veteran received a diagnosis during his August 2019 VA examination of right ankle strain not characterized as arthritis or other chronic condition. So, a current right ankle disability is established. Unfortunately, however, the record does not also contain the required attribution of his right ankle strain to his military service necessary to warrant the granting of service connection. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Regardless of duty status, the only right ankle disability record is the referenced August 2019 VA examination noting initial diagnosis in 2019. The record does not reflect symptoms or diagnosis referable to this ankle, including owing to injury, at any earlier point in time more contemporaneous to the Veteran's time in service. His service treatment records (STRs) are unremarkable regarding his right ankle, although they contain clear mention of injuries to his left ankle. His June 2019 VA examination for gout notes right hip and right foot pain but affirmatively excludes right ankle symptoms. The report of the August 2019 VA examination does not offer onset or history for a right ankle disability. The only record regarding onset is the Veteran's statement in his March 2014 Notice of Disagreement (NOD). He claimed that he broke this ankle in 1992, and that the fracture was misdiagnosed at that time. He further claimed continuing pain and residuals of that injury. However, the rest of the record including STRs, VA examination reports, post-service medical records, and radiology reports confirms he fractured his left ankle, not his right ankle. He reported symptoms in 1992, radiology confirmed a fracture in 1997, and he has experienced residual effects since, discussed in detail later in this decision in reference to his additional claim for consequent left ankle disability. There is no evidence of a right ankle fracture on record, including during his service. Generally, a Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as pain and injuries in service. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372, 1377-33 (Fed. Cir. 2007). However, it appears the Veteran made his statement in error, as he clearly placed the injury in 1992. Given this statement's apparent good faith and incongruity with the rest of the record, the Board considers it a mistaken statement on the Veteran's part and not credible in the context of the entire record. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997) (asserting the Board must determine "the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). This was the only statement on record that gave any indication of a right ankle injury during the Veteran's service, certainly during qualifying service. As such, there is no medical evidence and no probative (competent and credible) lay evidence that his right ankle condition, the strain, onset during his service. For this reason, the August 2019 VA examiner found no correlation between the Veteran's condition and his service. In his March 2014 NOD, the Veteran stated that his other ankle injury not the one associated with a fracture was due to twisting his ankle while pushing a wash rack in May 1997. However, as previously explained, his medical records do not support finding his 1997 injuries were related to his right ankle. Further, there is no probative evidence supporting a chronic condition or continuous symptoms since service, either of which might qualify him for presumptive service connection for a qualifying chronic condition. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Hence, presumptive service connection for a chronic condition is not for application since a strain is not such a condition. For these reasons and bases, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for a right ankle disability. His appeal consequently must be denied. There is no reasonable doubt to be resolved in his favor concerning this posited correlation. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a left ankle disability is remanded In contrast to the claim for right ankle disability, the record reflects treatment for a left ankle injury in December 1992 as reported in March 1993 and additional injury on May 13, 1997. Follow-up treatment revealed a prior ankle fracture. In the prior October 2018 remand, the Board directed the RO to determine the status of the Veteran's service in December 1992 and in 1997, i.e., when those injuries occurred. If the RO determined the Veteran was in qualifying service at those times, a VA ankle examination would need to be scheduled for medical comment concerning whether any current left ankle disability is attributable to those injuries. To this end, the RO scheduled and completed the August 2019 examination but ultimately found no evidence of qualifying service at the time of those injuries in December 1992 and 1997. In making this finding, the RO cited the Veteran's periods of AD, but does not appear to have considered any periods of ACDUTRA or INACDUTA. This is significant because all three types of service are qualifying if there was relevant injury; it is only disease that is precluded by INACDUTRA. On further review of the record, the Board sees a USAFR Point Credit Summary from February 1998 reflecting the prior year's duty status. It indicates the Veteran was on his annual tour of duty for 18 days, from April 28 to May 16, 1997, indicated by pay status "4" under the duty codes listed. His May 13, 1997 left ankle injury falls squarely in that period. His treatment notes are from a medical squadron aid station. This is sufficient to strongly suggest he was on one of the qualifying duty statuses at the time of this injury. There is no indication the examiner or RO attempted to verify the Veteran's duty status during this or any other period outside his AD periods of service. The February 1998 point summary identifies multiple periods of varying duty status in 1997. The RO's failure to comply with the Board's remand directives or consider the Veteran's duty status in 1997 renders the opinion inadequate. See Dalton v. Peake, 21 Vet. App. 23 (2007). Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. 268. Accordingly, this claim is again REMANDED for the following still additional development and consideration: 1. Verify the dates and durations of any periods of ACDUTRA or INACDUTRA, with specific attention to in May 1997. These efforts should include new appropriate requests using the PIES system, including request codes S01, S02, and S02-V. If those requests are unsuccessful, then explore follow-up methods for this needed verification, including appropriate information requests to the Defense Finance and Accounting Service (DFAS), electronic mail follow-up to the VA Liaison Office at the National Personnel Records Center (NPRC), and contact with the Veteran's duty station at the time of his final separation from service. 2. Obtain a medical opinion concerning the likelihood of a relationship between any currently left ankle disability and in-service injury or event, including especially owing to the Veteran's reported injury in May 1997. Have the examiner review the claims file, including a complete copy of this remand, to assist in making this determination. If the examiner indicates the requested opinion cannot be provided without an in-person examination of the Veteran, then arrange for one. After the records review and examination of the Veteran, if determined necessary, the examiner is specifically asked to provide an opinion on whether it is at least as likely as not (50 percent probability or more) that any current left ankle disability onset during a qualifying period of service or is related or attributable to any injury during a qualifying period of service? Rationale for the opinion is essential, regardless of whether favorable or unfavorable to the claim, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.