Citation Nr: 21028510 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-22 124 DATE: May 11, 2021 ORDER Entitlement to service connection for the left ankle, to include tendonitis, ("left ankle disability"), is denied. FINDING OF FACT The Veteran's left ankle disability is not related to service. CONCLUSION OF LAW The criteria for service connection for a left ankle disability are not 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 May 1974 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a May 2019 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. This matter was previously before the Board in October 2019. The claim was remanded for the RO to afford the Veteran a VA examination. In December 2019 the Veteran attended a VA examination. Thus, the Board finds that the RO substantially complied with the October 2019 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran claims he suffers from a left ankle disability related to in-service injuries. He did not provide a specific incident resulting in the disability, however in his May 2016 Form 9 statement he indicated the injury occurred in the first week of January 1978 while in Washington D.C. For the reasons discussed below, the Board finds that a medical nexus between the claimed disability and active service has not been demonstrated, and that service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. §§ 3.303(b), 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. Turning to the evidence of record, service treatment records (STR's) for February 1978 reflected complaints of left ankle pain. There are no other documented ankle complaints in service. The March 1978 service separation examination did not identify any left ankle complaints or pathology. Post service, a January 2014 private examination report from Dr. A.S. was submitted. The doctor indicated the Veteran was diagnosed with chronic tenosynovitis of the left ankle in December 2013. The medical history noted the Veteran has had ankle stiffness for 4 years with worsening flare-ups. The Veteran suffered pain with the left ankle plantar flexion and functional loss. No etiology opinion was provided. In January 2016 VA treatment records indicated a past MRI of the left ankle revealed tenosynovitis of flexor tendons. In April 2019 a private etiology letter from Dr. A.S. indicated review of private medical records. The doctor indicated he has been treating the Veteran since December 1993. Specifically, he has treated the Veteran for tenosynovitis since he diagnosed him in October 2013. Based on his review of the private records and experience, he opined that the ankle pain is at least as likely as not the result of or related to the Veteran's military service per history only. The rationale is based on incidents or injury, treatment, diagnostic tests, images, and history of past injury. A December 2019 VA examination report indicated review of the Veteran's claims file and recounted the Veteran's history. He was diagnosed with a left ankle strain. The examiner opined it is less likely as not that the Veteran has a diagnosis of left ankle condition that is caused by the treatment of ankle sprain in February 1978. It was reasoned, "according to records in 2/78 his left ankle sprain was healing well and during separation exam in 3/78 there was no chronic left ankle condition documented. There is no evidence of chronicity." It was noted, although the Veteran had been treated by the private doctor, A.S. since December 1993, the Veteran had not been treated for the left ankle until October 2013. Further, the examiner reasoned, medical scientific literature does not support the claim that ankle tenosynovitis is caused by ankle sprain 35 years later. During VA clinic visits on 4/18, 1/19 and 4/19 he did not complain about left ankle nor was he treated or diagnosed for any left ankle condition. Regarding Dr. [A.S.] opinion: he stated that he has been treating veteran since 12/93 but there was no left ankle disability/pain/condition diagnosed before 10/13. It is not medically possible that ankle sprain residuals manifest 35 years later as tenosynovitis. There is no evidence of chronicity for 35 years and according to Dr. [A.S.] he did not treat ankle pain from 12/93 to 10/13. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disability is not related to service. In this regard, the Board finds that the December 2019 VA opinion, discussed above, is the most probative evidence of record. The examiner found the disability was not related to service. It is supported by an adequate rationale, noting although the Veteran had an in-service left ankle sprain, medical scientific literature does not support the claim that ankle tenosynovitis is caused by an ankle sprain 35 years later. The January 2014 private examination report from Dr. A.S. supports the VA opinion, as the private doctor indicated the medical history noted the Veteran has had ankle stiffness for 4 years with worsening flare-ups. To the contrary the private opinion from Dr. A.S. has little probative value. The opinion specifically indicated it was based on history only. The doctor did not review the service treatment records and relied solely on the Veteran's reports. He based his opinion on the Veteran's reported history which is not consistent with the record. As detailed below, the Board finds the Veteran's continuous or recurrent statements not credible. Moreover, the doctor did not provide a rationale as he specifically stated, "my rationale for this opinion is based on the following reasons: incidents or injury, treatment, diagnostic tests, images, and history of past injury." He did not provide a rationale as to why the current diagnosis is related to an in-service injury 35 years prior. The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Therefore, the etiology opinion is not probative. Furthermore, the VA examiners assessment of the private opinion is persuasive. Notably, the private doctor indicated he has treated the Veteran since December 1993; however, the Veteran was not diagnosed with left ankle tenosynovitis until October 2013. This is significant, as the VA examiner indicated it is not medically possible for ankle sprain residuals to manifest 35 years later as tenosynovitis. Moreover, the preponderance of the evidence demonstrates that symptoms of the left ankle disability has not been continuous or recurrent since separation from active service in May 1978. The absence of post-service complaints, findings, diagnosis, or treatment for the claimed ankle disability for 35 years after service separation is one factor that tends to weigh against a finding of continuous or recurrent symptoms of the claimed disability after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Additional evidence demonstrating that symptoms of the claimed disability have not been continuous since service separation is the Veteran's own statements when he sought treatment for the disability. As noted above, in the January 2014 private examination the Veteran reported left ankle stiffness with worsening flare-ups for 4 years. This statement is highly probative evidence against a finding of continuous or recurrent left ankle disability symptoms since active service, as it is presumed that the Veteran would provide an accurate history of symptoms for the purpose of receiving the best treatment. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes); Buchanan, 451 F.3d at 1336 (in analyzing credibility, the Board is justified in taking into account multiple factors, including lack of contemporaneous medical evidence, possible bias, and inconsistencies within the record); Pond v. West, 12 Vet. App. 341, 345 (1999) (while the Board is not free to ignore a claimant's assertion as to any matter on which he is competent to offer an opinion, it may properly consider the personal interest a claimant has in his or her own case); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (personal interest may affect the credibility of testimony). The Board finds that the Veteran's assertions of continuous or recurrent symptoms of an ankle disability 35 years after service are not credible because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records, the lack of any documentation of reports or treatment for the claimed disability until at least 2013, 35 years after service separation, and the post service private records placing inception at or around 2000. The only other evidence relating the Veteran's left ankle disability to an in-service injury are the Veteran's lay statements. However, these statements alone do not establish a medical nexus. Indeed, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions on questions of etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). As such, as a lay person, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis, etiology, or causation of a specific disability. The question of diagnosis and causation, in this case, involves complex medical issues that the Veteran is not competent to address. The Board acknowledges that the evidence established that an event or injury occurred in service. As described above, the STRs document an isolated occurrence of what appears to be trauma to the left ankle. However, as noted above there are no other STRs related to the ankles, and the service separation examination did not identify any left ankle complaints or pathology. As such, any in-service injury to the left ankle appears to have been acute and transitory and resolved prior to discharge. Furthermore, the record does not reflect treatment for a left ankle disability until 2013, 35 years post service. Such a lapse of time is among the factors for consideration in deciding a service connection claim, as discussed in the detailed analysis above. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Accordingly, service connection for a left ankle disability is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App.at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jackman, 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.