Citation Nr: 21040192 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-35 620 DATE: July 2, 2021 ORDER 1. Entitlement to service connection for residuals of a right ankle fracture is denied. 2. Entitlement to service connection for a left knee disability, to include as secondary to residuals of a right ankle fracture, is denied. FINDINGS OF FACT 1. A right ankle disability was not manifested during the Veteran's service and there is no probative evidence that any such disability may be etiologically related to her service. 2. A left knee disability was not manifested in service, or to a compensable degree within one year following the Veteran's discharge from service, and there is no probative evidence that such disease may be etiologically related to her service or to a service-connected disability. CONCLUSIONS OF LAW 1. Service connection for a right ankle disability is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.303, 3.304. 2. Service connection for a left knee disability, to include as secondary to a right ankle disability, is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1985 to June 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal of an April 2014 Department of Veterans Affairs (VA) rating decision. In March 2019, a Travel Board hearing was held before the undersigned; a transcript is associated with the claims file. In April 2019 and August 2020, these matters were remanded for additional development. At the outset, the Board finds there has been substantial compliance with its April 2019 and August 2020 remand directives pertaining to the matters on appeal (VA asked the Veteran to submit authorizations for VA to obtain records from the previously identified private providers). See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a current claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Certain chronic diseases (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period following separation from service (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d). Secondary service connection is warranted for a disability which is caused or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection there must be evidence of: (1) the disability for which service connection is sought; (2) a disability that is already service connected; and (3) the already-service-connected disability caused or aggravated the disability for which service connection is sought. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). 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 all evidence is assembled, 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. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran alleges her current right ankle disability is due to a right ankle fracture sustained while serving in Busan, Korea in 1988 or 1989 and her left knee disability is secondary to the right ankle disability. The Veteran's service treatment records (STRs) contain no mention of complaints, diagnosis, or treatment pertaining to an ankle condition. Pursuant to the April 2019 Board remand, VA conducted an exhaustive search for STRs and service personnel records (SPRs) for the period of service in Korea. In September 2019, VA associated with the record some additional SPRs, which show service in Korea from February 1986 to February 1987 and from September 1988 to September 1989, but are silent regarding any ankle condition or a profile for an ankle injury disability. VA conducted an exhaustive search for any other additional missing records and has determined they are unavailable. See March 16, 2020 memo regarding "Formal Finding of Unavailability" (documenting VA's efforts to locate the Veteran's remaining STRs and concluding they are unavailable, and that all efforts were exhausted with further attempt deemed futile). On April 1991 service separation examination, her feet and lower extremities were normal on clinical examination. In a contemporaneous report of medical history, she denied ever having a bone, joint, or other deformity or foot trouble. Private treatment records (received July 2019) show the Veteran sustained an ankle fracture in 2007 and underwent surgical repair. An October 2008 private diagnostic study of her right ankle (to evaluate for a fracture) revealed a spiral fracture of the distal fibula with lateral and posterior displacement of t distal fracture fragment, a fracture of tib-fib syndesmosis, disruption of ankle mortise, lateral displacement of the talar dome, an avulsion fracture of the medial malleolus, and a potential bone infarct. An October 2008 private discharge summary notes a right ankle fracture was diagnosed and that she underwent a plate and screw procedure to repair it. A September 2009 VA treatment record notes the Veteran reported she fell down some steps in October 2008 and broke her right ankle in seven places. A July 2010 VA X-ray report of the Veteran's right ankle notes postsurgical changes. A September 2010 VA treatment record notes the Veteran's report of right ankle pain for 3 years following a fracture then and open reduction internal fixation (ORIF) surgery; the assessment was chronic right ankle pain and suspect mild posttraumatic arthritis. An April 2011 VA treatment record notes complaints of left knee pain for the past 3 weeks. A May 2011 MRI report found left knee chondromalacia patella and mild degenerative signal changes in a left meniscus. A May 2012 VA treatment record notes the Veteran reported falling down some steps in 2009, sustaining a fracture, and having hardware implanted to repair the fracture, and that she continued to have right ankle pain. She reported her left knee pain had resolved. Leg pain due to remote trauma and fracture with hardware [im-placed] was assessed. A January 2014 private treatment record notes that the Veteran was taken by ambulance to the emergency room following a ground level fall and that she denied any knee pain. An obvious open fracture to right tibiofibular [articulation] was noted. An orthopedic consultation report notes she related she was coming in from a snowy balcony when she slipped entering the doorway and landed on her right side. She reported she had prior right ankle surgery at that facility in 2007. A January 2014 surgical report notes she underwent an ORIF surgery for right tibia fracture. A March 2014 VA treatment record notes the Veteran fell down steps in 2009, fractured her leg, had hardware implanted for repair, and that her right leg pain was not as intensive as previously. She reported her left leg pain has been more severe. In her May 2014 notice of disagreement (NOD), the Veteran reported ankle fractures due to test boots in 1985 while stationed at Fort Jackson for basic training. In a July 2014 statement in support of the claim, she explained that she tolerated the pain and that she has had two surgeries on her right leg and broke her left leg since discharge from the Army. At the March 2019 hearing, the Veteran testified she injured her ankle in 1987 or 1988 in Busan, Korea. She testified the emergency room treated her ankle by putting it in a big sock, issuance of crutches, and being put on profile for 6 to 8 weeks. She related that she might have been seen at an orthopedic clinic, that x-rays were taken, and that the ankle was placed in a soft cast. She testified that her left knee started bothering her after she broke her ankle and that she limps, putting more pressure on her left knee to take pressure off her right ankle. She testified she has been limping for a few years. It is noteworthy at the outset that VA's attempts of compile a complete record for consideration in this matter has been frustrated by the Veteran's failure to cooperate with VA attempts to obtain records of private treatment from VCU/MCV. The August 2020 Board remand noted that private treatment records from VCU Health System/MCV Hospitals (which are already in the record) indicate she underwent right ankle surgery at that facility in 2007 and that her VA Form 21-4142a authorizing VA to obtain records from VCU Health Systems, received in July 2019, limited the scope of the authorization to records of treatment from 2008 to 2017, thus excluding the earliest records of pertinent treatment there (and likely to contain the best available evidence on the matter at hand). August 2020 and September 2020 letters to the Veteran requested her to submit authorization for VA to obtain records from preceding, of, and in follow-up to, her 2007 ankle surgery at VCU/MCV. In a September 2020 report of contact, she reported that she has no other private medical records to be submitted or obtained. As the records already in the file reflect that such records clearly were created, her response suggests that that any such records existing do not support her claim. Regardless, VA cannot acquire those records for consideration in connection with her claim without her authorization. 1. Entitlement to service connection for a right ankle disability is denied. It is not in dispute that the Veteran now has a right ankle disability (first diagnosed in 2007). The critical question is whether the Veteran's current right ankle disability may somehow be etiologically related to an alleged (but undocumented) right ankle fracture in service. While additional STRs and SPRs were associated with the record in September 2019, the Agency of Original Jurisdiction (AOJ) continued to search for STRs for the Veteran's periods of service on Korea and ultimately made a formal finding for the record in March 2020 that any additional STRs or SPRs created are unavailable. The law provides that when, through no fault of the Veteran, records under the control of the government are unavailable, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). However, a presumption is not raised that the missing medical records, if available, would support the claim. That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). Governing case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs, alone, do not obviate the need for the Veteran to still support her claim for service connection by competent and credible evidence showing both that she has the claimed disability and that there is a correlation ("nexus") between her claimed condition and her military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993). The Board has considered the Veteran's assertions that she fractured her right ankle during boot camp or (alternatively) while stationed in Korea in 1987 or 1988. The available service records do not show any right ankle injury or any complaints, treatment, diagnosis, or profile for a right ankle disability (to include the alleged right ankle fracture). Her April 1991 service separation examination report shows that her lower extremities and feet were normal on clinical examination. In a contemporaneous report of medical history, she did not report any broken bones and, which several significant medical findings were noted, none pertained to a musculoskeletal condition. There is no evidence of a chronic or ongoing ankle problem in the final months of the Veteran's service and she was medically cleared for separation. Logically, if she had indeed sustained such a significant injury as an ankle fracture in service, such would have been reported and noted on service separation examination and/or in the contemporaneous report of medical history. Moreover, postservice VA and private treatment records show the Veteran was not seen for, or diagnosed to have, complaints or findings of a right ankle disability until 2008, when she was taken to the emergency room following a fall that resulted in a right ankle fracture. The Veteran's account that she fractured her right ankle in service was first reported in connection with the compensation-seeking process. Her May 2014 statement (that she fractured her ankle in boot camp) and March 2019 hearing testimony (that she fractured the right ankle in Korea) are not supported in contemporaneous clinical notations documenting a 2008 right ankle fracture and January 2014 right leg fracture, when she did not report an earlier right ankle fracture or identify any remote ankle trauma. VA treatment records following the 2008 fracture noted she reported a fall in 2008 (see September 2009 VA treatment record) and right ankle pain due to a right ankle fracture and ORIF surgery 3 years prior (see September 2010 VA treatment record). While she variously reported to VA providers that the surgery occurred in 2007, 2008, or 2009, the overall record amply supports that a right ankle fracture occurred well her after separation from service. The accounts of a right ankle fracture in service are tailored to the compensation-seeking process, and the most recent reports of onset in service are self-serving; and lack credibility. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Regarding the Veteran's expressed belief that her current right ankle disability is related to an injury in service, she is a layperson and her own opinion is not competent evidence in the matter. She has not presented any competent (medical opinion/textual) evidence supporting this theory of entitlement. See Jandreau, 492 F.3d 1372, 1377. The record does not include any competent (medical) evidence that shows or suggests her right ankle disability may be etiologically related to her active duty service. The low threshold standard for determining when an examination to secure a medical opinion is necessary is not met (see McLendon v. Nicholson, 20 Vet. App. 79 (2006)). It is not in dispute that the Veteran has a current right ankle disability. An examination would not establish that an ankle injury (included the alleged fracture) occurred in service, so there would be no basis in the evidence of record for the examiner to offer a medical opinion relating the current disability to an injury in service. The preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. 2. Entitlement to service connection for a left knee disability is denied. It is not in dispute that the Veteran has diagnoses of left knee chondromalacia patella and degenerative changes (first diagnosed in 2011). The record does not show or suggest (and she does not allege) that her left knee disability is related directly to (was incurred during) her active duty service. Her primary theory of entitlement is essentially one of secondary service connection; she asserts her left knee disability is secondary to her right ankle disability. As a right ankle disability is not service connected (the appeal in that matter being denied herein, above), this secondary service connection theory of entitlement lacks legal merits. 38 C.F.R. § 3.310 (a). The analysis proceeds to whether a left knee disability may nonetheless be etiologically related directly to the Veteran's service. The record does not show (and she does not allege) that a chronic left knee disability was manifested in service or that left knee arthritis was manifested in her first postservice year. Her available STRs do not note any left knee complaints. More significantly (since some STRs may be unavailable), the report of her service separation examination and the medical history compiled at the time, which are in the claims file, contain no mention of left knee complaints, abnormal findings, or injury. The Veteran has reported to VA treating providers that her left knee pain started in 2011 (so approximately 20 years following her active duty service). See April 2011 VA treatment record. As there is no evidence that a left knee disability was manifested in service, or for many years thereafter, service connection for such disability on the basis that it became manifest in service, or on a presumptive basis (as a chronic disease under 38 U.S.C. §§ 1112, 1137) is not warranted. As a left knee disability was not shown for many years after service, service connection for such disability based on continuity of symptomatology (under 38 C.F.R. § 3.303(b)) is also not warranted. Whether, in the absence of a showing of manifestation in service and continuity since, the Veteran's left knee disability may otherwise be related to her service is a medical question beyond the realm of common knowledge, and incapable of resolution by lay observation. See Jandreau, 492 F.3d at 1377. She has not presented any competent (medical opinion/textual) evidence supporting there may be a direct nexus between her current left knee disability and her service. See Jandreau, 492 F.3d 1372, 1377. The record does not include any competent (medical) evidence that shows or suggests her left knee disability may be etiologically related to her active duty service. Therefore, even the low threshold standard for determining when an examination to secure a medical opinion is necessary is not met (see McLendon v. Nicholson, 20 Vet. App. 79 (2006)), and an examination to secure a medical opinion in this matter is not necessary. The preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.