Citation Nr: 21030231 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-42 534 DATE: May 18, 2021 ORDER Entitlement to service connection for a right ankle disability is denied. REMANDED Entitlement to a rating in excess of 10 percent for service-connected right knee patella fracture is remanded. FINDING OF FACT At no time prior to the filing of the claim or during the pendency of the claim, does the evidence show the Veteran has a clinically diagnosed right ankle disability or that his right ankle swelling has resulted in a functional impairment affecting earning capacity. CONCLUSION OF LAW The criteria for service connection for a right ankle disability, to include as secondary to service-connected right knee patella fracture, have not been 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 March 1986 to August 1986 and from September 1987 to October 1990. This appeal was previously before the Board in November 2018, at which time the Board remanded the claims for additional evidentiary development. The record reflects that all requested development has been conducted. As such, the appeal has been returned to the Board for further consideration. 1. Entitlement to service connection for a right ankle disability The Veteran has asserted that she experiences right ankle swelling that is a result of her service-connected right knee disability. She has stated that when her right ankle is swollen it causes fatigue and pain while walking. See April 2014 notice of disagreement (NOD). 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). The law also provides that service connection may be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease or, in the alternative, is secondary to a service-connected disability. After reviewing the claims file, the Board concludes that the Veteran does not have a current diagnosis of a right ankle disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's service treatment records (STRs) do not contain any complaints, treatment, or diagnoses related to a right ankle disability, including when she was diagnosed with and treated for a fracture of the lateral aspect of the right patella. See STRs dated May 1988. The Veteran declined to have an examination prior to discharge from her second period of service. See September 1990 STR. Nevertheless, the Board notes the Veteran has not asserted, nor does the evidence otherwise show, that her right ankle symptoms began during or as a result of her periods of active service. The post-service treatment records show that, in April 2008, the Veteran presented for treatment with complaints of painless right ankle swelling and right ankle pain. The Veteran reported her medical history of having surgery to repair a patellar fracture 20 years prior, but she did not report having a long-standing history of right ankle swelling. Instead, she reported having ankle swelling earlier in the week that had completely resolved by the time she presented for treatment. Indeed, objective evaluation did not reveal any relevant right ankle findings at that time but, in March 2009, she reported having continued intermittent ankle swelling and right knee pain. The Veteran indicated that the swelling occurred on the posteromedial aspect of her ankle, but the examining clinician noted that swelling had markedly resolved and that palpation of the ankle was nontender. The impression was resolving ankle swelling. See private treatment records dated April 2008 and March 2009. Subsequent VA treatment records show that the Veteran continued to seek treatment for knee and back pain with reports of occasional, mild right ankle swelling. The evidence shows that she reported experiencing knee swelling that extended all the way to her ankle and otherwise reported that her knee and back pain caused her ankle to swell like a balloon. See e.g., VA treatment records dated April, June, and July 2016. The evidence shows that the Veteran's right ankle has, in fact, been larger in size than her left ankle; however, the evidence reflects that the Veteran's ankle size is variable, as her right ankle is shown to be larger on one occasion with the left ankle slightly larger on another. See e.g., VA treatment records dated July and August 2016. Despite the Veteran's intermittent complaints of right ankle swelling, review of the evidence does not reflect that her ankle swelling has been attributed to any underlying disability or clinical diagnosis. The Veteran was afforded a VA ankle examination in August 2019, during which she reported having continued right knee problems after service and stated that, over time, she was straining her right ankle which started to swell. She reported being referred to orthopedics which noted that x-rays were negative for fracture and that her ankle condition improved, which resulted in an assessment of nonpainful swelling of the ankle. During the examination, the Veteran endorsed having intermittent pain and swelling of the ankle that increased with prolonged walking and standing; however, objective evaluation of the right ankle did not reveal any swelling, tenderness, limitation of motion, or sensory or motor impairment. As a result, the VA examiner did not render a right ankle diagnosis. See August 2019 VA examination. Based on the foregoing, the Board finds the competent evidence of record does not reflect that the Veteran has a current diagnosis of a right ankle disability and has not had one at any time during the pendency of the claim or recent to the filing of her service connection claim in April 2013. The Board also notes that there is no lay or medical evidence showing that her right ankle pain and swelling is disabling to the extent that it has resulted in a functional impairment in earning capacity. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this regard, the Board expressly acknowledges the Veteran's reports that her right ankle swelling and pain causes fatigue when walking and prevents standing or walking for prolonged periods of time. See April 2014 NOD; August 2019 VA examination. However, neither the lay nor medical evidence of record shows that the Veteran's right ankle symptoms or the reported functional impairment caused thereby affects her earning capacity; nor has the Veteran identified any outstanding evidence that would show her right ankle symptoms are disabling and impact her earning capacity. Indeed, despite the functional impairment reported by the Veteran, the evidence shows the Veteran has maintained employment throughout the appeal period without any specific complaints of impairment caused by her right ankle symptoms which, are shown to be intermittent, at best. See e.g., VA treatment records dated from 2015 to 2019. While the Veteran believes she has a current diagnosis of a right ankle disability, she is not competent to provide a diagnosis in this case. Indeed, the diagnosis of a musculoskeletal disability is medically complex, as it requires require medical observation, expertise, and knowledge of the skeletal system, which is generally beyond the competency of a lay witness. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence which does not contain a right ankle diagnosis or attribute the Veteran's right ankle swelling and pain to a clinical diagnosis. In the absence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the Veteran's claim is denied, and the benefit of the doubt doctrine is not applicable. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for service-connected right knee patella fracture is remanded. In April 2014, the Veteran submitted a copy of physical therapy records dated in January 2014 that contain range of motion testing for her right knee and note her report of having a recent x-ray of the knee. See physical therapy records. There is no indication if the physical therapy performed in January 2014 was authorized or contracted by a VA or non-VA provider; nor is there any indication when this physical therapy treatment began or ended. However, the record reflects that VA authorized physical therapy for the Veteran's right knee disability in May 2016, which suggests that the previous physical therapy was performed by a non-VA provider. See VA treatment records dated May and June 2016. The Veteran's statement that she recently received an x-ray of the right knee in January 2014 also suggests that she was receiving some form of treatment for her right knee at that time; however, the claims file only contains VA treatment records dated as early as February 2015. Because there appears to be outstanding treatment records that are relevant to the right knee claim on appeal, the Board finds that the agency of original jurisdiction should attempt to obtain this evidence. The matters are REMANDED for the following action: Request the Veteran identify any outstanding treatment records relevant to the right knee claim on appeal, to include physical therapy performed in approximately January 2014. After obtaining authorization forms from the Veteran, all outstanding records should be obtained, to include the records identify by the Veteran and VA treatment records dated from 2013 to February 2015 and from April 2020 to the present. All attempts to obtain this evidence must be documented in the claims file and performed consistent with 38 U.S.C. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, 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.