Citation Nr: 21030119 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-24 868 DATE: May 17, 2021 ORDER Service connection for a left ankle disability, to include as secondary to service-connected disabilities is denied. FINDING OF FACT A diagnosis of a left ankle disability has not been shown during the course of the appeal, or at any time proximate to the filing of the claim for service connection. CONCLUSION OF LAW The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from June 1955 to November 1959 and from March 1962 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO). In August 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. The Board remanded the claim to the Agency of Original Jurisdiction (AOJ) in August 2018 to conduct additional development of the record, including obtaining medical records and a VA examination. After review of the record, the Board finds there has been substantial compliance with the August 2018 remand orders and the claims are properly before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Service Connection for a Left Ankle Disability. The Veteran contends that service connection is warranted for a left ankle disability. After review of the evidence, both lay and medical, the Board finds that service connection for a left ankle disability is denied. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich, 104 F.3d. 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In the absence of proof of a present disability due to disease or injury that occurred in service, there can be no valid claim. Brammer, 3 Vet. App. 223, 225 (1992); Sanchez-Benitez, 259 F.3d. 1356 (2001). The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim or shortly before. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). A claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain, 21 Vet. App. 319, 321 (2007). However, the Court has also made clear that a diagnosis is not required in order to satisfy the current disability requirement and pain or other symptoms can constitute disability if they cause impairment in earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). The Veteran's service treatment records are silent for any treatment for, or diagnosis of, a left ankle disability. However, the Veteran does not contend that the left ankle disability began during service, rather that it is secondary to his service-connected post-traumatic and post-operative changes in the fifth metatarsal, left foot (service-connected left foot disability). In an August 2013 correspondence, the Veteran indicated that he had constant pain in the left ankle due to a pin placed for the service-connected left foot disability. A March 2015 letter from the Veteran's treating physician indicated the Veteran required on-going foot treatment and that in June 2008 a surgery was performed to remove a fixation device. In March 2016, the Veteran underwent a VA examination to determine the etiology of any left ankle disabilities. He indicated he was unsure why the left ankle was being discussed because he had always contended his 5th metatarsal was the issue. An x-ray conducted as part of the examination showed an unremarkable left ankle. On examination, the Veteran had reduced range of motion in plantar flexion that the VA examiner opined was consistent with the baseline for the Veteran's age. The rationale provided was that the Veteran had symmetrical loss of range of motion in the bilateral ankles without discomfort. The VA examiner indicated that the Veteran did not have a current diagnosis associated with the left ankle. The rationale provided was that the Veteran's examination was normal and there were no functional limitations in the ankle. In August 2018, the Veteran provided testimony in support of the claim. He indicated that the only treatment sought for the ankle was from his Navy doctor. The symptoms the Veteran reported in the ankle were a feeling that it was going to buckle, throbbing two to three times per week, and numbness in the bottom half of the ankle. The Veteran added that he has never fallen due to the left ankle. In a follow-up statement the Veteran indicated that he experienced swelling and pain in the ankles. In October 2019, the Veteran underwent an additional VA examination to determine the etiology of any left ankle disabilities. The Veteran reported swelling in the ankle. An October 2019 x-ray found soft tissue swelling suggestive of a soft tissue injury. On examination, the Veteran again had reduced range of motion in plantar flexion that the VA examiner opined was consistent with the baseline for the Veteran's age. No pain, tenderness, or crepitus was noted on the examination and the Veteran had full strength in the left ankle. The VA examiner indicated that the Veteran did not have a current diagnosis associated with the left ankle. The VA examiner further opined that given the Veteran's vascular risk factors and the equal swelling in both ankles that the etiology of any swelling was likely vascular. As previously stated, a necessary element for establishing entitlement to service connection is the existence of a current disability. Brammer, 3 Vet. App. 223, 225 (1992). For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain, 21 Vet. App. 319, 321 (2007). Here, the preponderance of the evidence shows the Veteran does not have a current left ankle disability that causes an impairment in earning capacity. Specifically, there are complaints of, or treatment for the ankle during the appeal period and two VA examiners have found no diagnosable disability for the left ankle. Further, the lay evidence has shown no disability that causes an impairment in earning capacity. The Veteran has reported occasional swelling, a feeling of instability with no falls, and pain but no limitations or impacts his daily activities of living or functional impact. To be sure, the Board is not imposing a requirement that a Veteran fall or exhibit any specific symptoms to qualify for a disability, rather, just establishing that in this case, when reviewing the lay and medical evidence of record, no functional loss resulting in an impairment in earning capacity can be found. Therefore, at no time during the appeal period has the Veteran been diagnosed with a left ankle disability. (Continued on the next page) The Board finds the VA examiners opinions more probative and consistent with the lay evidence. The VA examiner's opinions provided a rationale and adequately took into consideration the objective medical evidence of record, lay evidence, and the contemporaneous examinations of the Veteran and found no left ankle disability. As such, the VA examiners opinions provide an adequate basis for the Board to form a fully informed decision. After a full review of the record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current diagnosis for a left ankle disability 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 Teague, Charles 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.