Citation Nr: 21028322 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-05 705 DATE: May 11, 2021 ORDER Entitlement to service connection for lateral collateral ligament sprain with osteoarthritis, to include left ankle disability (claimed as ankle pain/weakness), is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, lateral collateral ligament sprain with osteoarthritis, to include left ankle disability (claimed as ankle pain/weakness), is at least as likely as not related to an in-service injury. CONCLUSION OF LAW The criteria for service connection for lateral collateral ligament sprain with osteoarthritis, to include left ankle disability (claimed as ankle pain/weakness), are 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 served on active duty from June 1985 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a February 2021 videoconference hearing. A transcript of that proceeding is associated with the claims file. Service connection laws and regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 308 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for left ankle disability The Veteran contends that his current lateral collateral ligament sprain with osteoarthritis, to include left ankle disability (clamed as ankle pain/weakness) is due to an in-service left ankle inversion injury from April 1988 while in service. Turning to the evidence of record, service treatment records (STRs) reflect a left ankle inversion injury in April 1988. The Veteran was diagnosed with a left lateral collateral ligament sprain. A service separation examination in May 1989 did not contain complaints, treatment, or diagnosis for the claimed condition, and indicated lower extremities were "normal." A January 2016 VA examination report noted review of the e-folder and medical records, recounted the Veteran's complaints and history, and included a physical examination. The Veteran reported flare-ups of the ankle, unsteadiness, weakness, pain, and unexpectantly his ankle would "give out." The report noted that the Veteran works full time as a correctional officer and stands and walks most of the day. Radiographs were reviewed and he was diagnosed with osteoarthritis of the left ankle. Specifically, the left ankle showed evidence of remote injury to the distal fibular tip and mild degenerative changes of the tibiotalar joint. As for the right ankle, the radiograph results were "normal." The VA examiner opined that the Veteran's claimed ankle pain/weakness is not at least as likely as not related to an in-service injury, event, or disease. The rationale was that there was no chronicity or continuity of care evidence for more than 20 years following discharge from military service. November 2016 private treatment records from Dr. P.J. indicated that the Veteran is a new patient. The record includes his complaints, history of present illness, a physical examination, and imaging. The Veteran reported an 8/10 discomfort level for the left ankle since 1988. Dr. P.J. observed edema, tenderness, and increased instability of the left ankle. X-rays of the left ankle showed a well-maintained ankle mortise, moderate amount of osteoarthritis of the lateral gutter, bone fragment distal to the fibula, and a small cyst on the fibula. The assessment indicated left ankle instability, pain, and secondary osteoarthritis with posttraumatic arthritis with a large bone fragment in the sub-fibular region. He recommended an MRI. A November 2016 MRI imaging of the Veterans left ankle revealed medical osteochondral lesion of the talar dome and tibial plafond measuring 5 x 6 mm and 6 x 6 mm respectively. There was also evidence of chronic ununited anterior distal fibular avulsion fracture; thickening of the lateral ankle ligaments compatible with sequela or prior sprain/partial tear; secondary lateral talofibular degenerative changes; mild medial ankle tendons and tenosynovitis; and mild peroneal tenosynovitis. December 2016 private treatment records from Dr. P. J. included a review of the November 2016 MRI imaging and a physical examination of the Veteran. Dr. P.J.'s assessment included left ankle instability and pain, osteochondral lesions of medical talar dome and tibial plafond above measurements, a nonunion of the distal fibula, and a chronic tear of the ATFL and lateral ligament complex. He recommended bracing and future surgical treatment. The Veteran received a left ankle injection of lidocaine with epinephrine. In a July 2017 addendum opinion, the VA examiner reviewed the January 2016 VA examination report, the private treatment records from November 2016 and December 2016, and the Veteran's e-folder. The examiner opined that the Veteran's osteoarthritis of the left ankle with lateral collateral ligament strain is not at least as likely as not related to an in-service injury, event, or disease, including the left ankle sprain in service. The rationale was that after reviewing all the records, there was no evidence of any ongoing complaints of, or treatment for, the claimed condition at the time of his service separation in May 1989 or within one year of military discharge. The private treatment records indicated he reported chronic issues with the ankle since the April 1988 injury. However, the VA examiner did not find objective evidence that the Veteran had actually received ongoing treatment since that time for his left ankle condition. In fact, he did not start treatment with Dr. P.J. until November 2016 which is more than 25 years after military discharge. Additionally, the examiner noted that the Veteran works full time as a correctional officer, standing and walking most of the day, "with no evidence of a limited duty status." During the February 2021 videoconference hearing, the Veteran stated he did not make complaints regarding his left ankle injury upon discharge because he was informed he would have to stick around for further examinations if he did so, and at age 22 he "just wanted to go home." The Veteran stated that since discharge, he has been dealing with significant pain on a daily basis for "mostly over the last 20 years" and takes prescription medication for the pain. He reported he has now taken a desk job as a corrections officer because his left ankle disability prevented him from responding in emergency situations. March 2021 private treatment records from Dr. P.J. recounted the Veteran's complaints and history, and included a physical examination of the Veteran. The report noted the Veteran was last seen in 2017. After a review of the records and consideration of the history of the left ankle, Dr. P.J. opined that the Veteran's left ankle disability is most likely related to the military injury he sustained in the 1980s. Additionally, he stated, "we believe that this is the most likely reason for his inability to be able to fully weight bear on that left lower extremity and also to engage in meaningful work." The examiner based his opinion on the Veteran's complaints, history, imaging, and a physical examination of the Veteran. March 2021 private treatment records from Dr. A.L. recounted the Veteran's complaints and history, obtained imaging, and included a physical examination of the Veteran. X-rays displayed moderate arthritis of the tibiotalar joint, as well as, an old fracture deformity of the lateral malleolus. The examiner opined that the current left ankle condition is "likely related to old injury during time in Navy, as his ankle pain began shortly after that and has consistently gotten worse as he has gotten older." The examiner based his opinion on the Veteran's complaints, history, imaging, and a physical examination of the Veteran. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds that the criteria for entitlement to service connection for left ankle disability are in relative equipoise. Here, the Veteran was diagnosed with a current disability of osteoarthritis of the left ankle in January 2016. STRs show a lateral collateral ligament sprain of the left foot in April 1988. Because there is a current diagnosis and an in-service event, the only remaining question is whether the Veteran's current left ankle disability is related to service. Shedden, 381 F.3d at 1166 -67. Taken together, the VA opinions of January 2016 and July 2017 establish that the Veteran's left ankle disability is not at least as likely as not related to an in-service injury, event, or disease. The combined rationale was that there was no chronicity or continuity of care evidence at service separation or for more than 20 years following discharge from military service. The examiners' combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). However, the Board notes that the VA opinions do not address the findings from the January 2016 VA radiograph. Specifically, the left ankle showed evidence of a remote injury to the distal fibular tip and mild degenerative changes of the tibiotalar joint, while the right ankle radiograph was normal. Given that it was the left ankle injured in service, and only the left ankle that has evidence of current osteoarthritis, the Board finds this information is probative and consistent with the Veteran's contentions. In regard to the VA examiners rationale that there was no chronicity or continuity of care evidence at service separation or for more than 20 years following discharge from service, the Veteran elaborated in the February 2021 hearing that he did not formally report his left ankle injury upon discharge because as a 22 year old he "just wanted to go home" instead of delaying his discharge for further examinations. Further, he stated that since discharge he has been dealing with significant pain of the left ankle on a daily basis for the last 20 years. The Board finds his statements credible. While the Veteran is competent to report having experienced symptoms of left ankle pain consistently for the past 20 years since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of the April 1988 in-service left ankle inversion injury. The issue is medically complex, as it requires knowledge of and interpretation of complicated diagnostic medical testing, such as X-rays and MRI's. Jandreau, 492 F.3d at 1377 n.4. Significantly, the private opinions support the Veterans contentions. Both Dr. P.J. and Dr. A.L. opined that it is at least as likely as not that the Veteran's left ankle disability is related to an in-service injury, event, or disease. The opinions were based on the Veteran's complaints, history, imaging, and a physical examination of the Veteran and the Board finds the combined opinions to be probative. Nieves-Rodriguez, 22 Vet. App. at 304. As such, the third element requiring evidence of a nexus between the in-service injury and the current nonservice-connected disability are in relative equipoise. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52 (1993); see also Massey v. Brown, 7 Vet. App. 204 (1994). Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for left ankle disability is warranted. Thus, the Veteran's appeal is granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.M. Edwards, 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.