Citation Nr: 21029676 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 15-31 931 DATE: May 14, 2021 ORDER Entitlement to service connection for a bilateral lower extremity/ankle disability is denied. FINDING OF FACT The weight of the evidence shows that a bilateral lower extremity/ankle disability was not diagnosed during the pendency of the appeal. CONCLUSION OF LAW The criteria for service connection for a bilateral lower extremity/ankle disability have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1988 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2018 decision, the Board denied the Veteran's petition to reopen his claim of entitlement to service connection for a right knee disability. The Board also denied his claim of entitlement to service connection for a left knee disability and remanded his claims of entitlement to service connection for (1) a right lower extremity disability, to include a right ankle disability; (2) a left lower extremity disability, to include a left ankle disability; and (3) a bilateral foot disability. Following completion of the additional development requested by the Board in its Remand instructions, the RO issued a March 2021 rating decision that granted entitlement to service connection for a bilateral foot disability (diagnosed as bilateral hallux valgus). The RO continued to deny the Veteran's claims seeking entitlement to service connection for (1) a right lower extremity disability, to include a right ankle disability; and (2) a left lower extremity disability, to include a left ankle disability. These claims were returned to the Board for further appellate review. For the sake of simplicity, the Board has combined these claims into a single claim of entitlement to service connection for a "bilateral lower extremity/ankle disability". Entitlement to service connection for a bilateral lower extremity/ankle disability. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.03. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When there is an approximate balance of positive and negative 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. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran is seeking entitlement to service connection for bilateral lower extremity/ankle disability, which the Veteran has alleged are related to a series of bilateral lower extremity complaints in service, including complaints of left ankle pain and Achilles tendonitis, right shin splints, and possible right ankle stress fracture. However, the first question before the Board is whether the Veteran has a current bilateral lower extremity/ankle disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran was afforded a VA examination in March 2012, but the examiner found no disability of the right or left ankles or legs. However, VA outpatient treatment records after that examination note ongoing complaints of right and left ankle pain, as well as bilateral ankle sprains. In February 2021, the Veteran was provided VA ankle and knee/lower leg examinations. The Veteran reported that he had sustained a right ankle fracture in June 1990 and that he had hit his left ankle at the public swimming pool in 1998. He reported that his symptoms were "swollen left ankle, stiffness, and limited range of motion" and that he treated with splints, crutches, ice, and medication. He reported that his current symptoms included pain, stiffness, and cramping. He indicated that he treats his current condition with anti-inflammatory medications and that the pain and swelling impacts his ability to walk, stand, work, sit for long periods of time, have sex, and play with his son. After reviewing the evidence of record and evaluating the Veteran, the examiner concluded the Veteran did not have a bilateral ankle disability. The examiner noted that range of motion was normal for both ankles and that the Veteran did not have any functional limitation for either ankle. The examiner also observed that there was no objective evidence of pain during active motion, passive motion, on rest, during weight-bearing, or during non-weight-bearing. The examiner found the same results during initial range of motion testing and after repeated-use/repeated-use over time testing. The examiner found no evidence of muscle atrophy, ankylosis, joint stability, or any other pertinent findings affecting the left or right ankles. Diagnostic testing revealed no evidence of fracture, arthritis, or any other significant bone or soft tissue abnormality. The examiner found that the Veteran's subjective bilateral ankle condition did not impact his ability to perform any type of occupational task. The examiner similarly found that the Veteran did not have any impairment of his right or left lower legs (the examiner diagnosed the Veteran as having bilateral knee osteoarthritis, but this disability was separately claimed as left and right knee disabilities). The Board finds that the most probative evidence of record in this matter are the February 2021 VA examinations because they were held for the express purpose of obtaining a diagnosis of any bilateral lower leg or ankle disabilities. Significantly, after reviewing the evidence of record and conducting an in-person evaluation of the Veteran, the VA examiner opined that the Veteran does not have a current left or right lower extremity/ankle disability. The Board acknowledges the Veteran reported having bilateral ankle pain and that pain without an accompanying diagnosis can constitute a disability. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). However, as explained in Saunders, a subjective assertion of pain alone does not establish a disability, and "[t]o establish the presence of a disability, a veteran will need to show that [his or] her pain reaches the level of a functional impairment of earning capacity." Id. at 1368-69. Notably, the February 2021 VA examiner acknowledged the Veteran's report of pain and opined the claimed disability does not result in loss in range of motion or function limitation and that it does not impact the Veteran's ability to perform any type of occupational task. The Board has considered the Veteran's general assertions that he has a bilateral lower extremity/ankle disability that is related to his service. However, because he is a layperson, he is not competent to diagnose and opine on the etiology of a musculoskeletal disability, which is a medically complex question. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have a bilateral lower extremity/ankle disability at any time during the pendency of the appeal, and this claim is denied. As a final matter, it is important for the Veteran to understand that even if the Board conceded that the Veteran has a bilateral lower extremity/ankle disability of some type, the evidence is against the claim that it is the result of service from decades ago. The service and post-service records provide evidence against such a claim, indicating a problem that began many years after service with no connection to service or the cited injuries in service many years ago. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.