Citation Nr: 21028493 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-18 525 DATE: May 11, 2021 ORDER Service connection for a left ankle condition is denied. FINDING OF FACT The Veteran's left ankle condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for left ankle condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, had service from November 1969 to March 1972. In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board previously considered this appeal in December 2019, and remanded the issue for additional development. After the development was completed, the case returned to the Board for further appellate review. The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value. When there is an approximate balance in the 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(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service Connection 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997. In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has an inherent fact-finding ability. Id. at 1076. The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). 1. Service connection for a left ankle condition. The Veteran contends he is entitled to service connection for his left ankle condition. Specifically, he believes his left ankle condition resulted from an accident on the "tug" during jet engine maintenance. The Veteran has a current diagnosis of left ankle arthritis (degenerative joint disease) as evidenced by an August 2012 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran was not diagnosed with left ankle arthritis until August 2012, decades after his separation from service and decades outside of the applicable presumptive period. While the Veteran is competent to report experiencing symptoms of left ankle pain consistently since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran's reports are internally inconsistent with his reports in contemporaneous treatment records, which show that he denied experiencing left ankle pain from November 1969 to March 1972 and initially reported the onset of left ankle pain with difficulty walking, standing, or climbing as approximately August 2010, outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, while the Veteran asserts that the reported symptoms were manifestations of left ankle arthritis, he is not competent to make this determination as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Service connection for a left ankle condition may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a left ankle condition began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Veteran's enlistment examination shows no indication of any prior injury concerning his left ankle. The Veteran's service treatment records show that the Veteran was treated in January 1971 after his right ankle was caught between a stationary object and a moving "tug." An x-ray was completed, and the Veteran was removed from duty for the rest of the evening. There was no mention of left ankle treatment. Additionally, his service treatment records show treatment for his right ankle in February 1971 after a motorcycle accident, but there was no indication of treatment for his left ankle. However, in a later portion of the record, the Veteran's history shows broken left and right ankles in 1966 and 1971, but does not assign a specific date for either ankle. The January 1972 separation examination also shows no ankle abnormalities. The October 2020 VA examiner opined that the Veteran's left ankle condition is less likely as not related to an in-service injury, event, or disease. The rationale was there are no service treatment records that document a left ankle injury. However, the VA examiner pointed out that there are service treatment records for a right ankle injury, which was subsequently awarded service connection in a March 2021 rating decision. While the Veteran and his fellow servicemen believe the Veteran's left ankle condition is related to an in-service injury, event, or disease, including a wash rack or motorcycle accident while on base, the preponderance of the evidence weighs against finding that an in-service left ankle injury occurred. Their reports of a left ankle injury are largely not credible due to internal inconsistency and inconsistency with other evidence in the record, which show that right ankle injuries occurred instead. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). For instance, their reports of a left ankle injury from a moving "tug" that required a walking cast and cane are shown in January 1971 service treatment records as a right ankle injury, which also confirmed his use of a walking cast and cane. The motorcycle accident in Thailand is also documented in a February 1971 service treatment record, but the record shows it was a right ankle and foot injury. Furthermore, they are not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. (Continued on the next page) After a full review of the record, the weight of the evidence demonstrates that a left ankle condition did not have its onset in service, was not manifest to a compensable degree within one year of separation from service, and is not otherwise related to service for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Connally, 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.