Citation Nr: 21040735 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-18 546 DATE: July 6, 2021 ORDER Entitlement to service connection for left ankle sprain residuals, to include arthritis, is denied. Entitlement to service connection for a left knee disability is denied. FINDINGS OF FACT 1. A left ankle disability is not related to service, did not manifest within a year of service separation, and has not been chronic and continuous since service separation. 2. A left knee disability was not incurred during any period of active duty service, did not manifest within a year of service separation, has not been chronic and continuous since service separation and is not caused by or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to February 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in March 2019 and were remanded for additional development. The case is once again before the Board. Duty to Assist In September 2013, the Veteran reported that he was receiving social security disability benefits. In March 2019, the Board remanded these claims to obtain the Veteran's social security records. In October 2019, the VA was notified by the Social Security Administrations (SSA) National records center that the Veteran's records were destroyed. In October 2019, the RO notified the Veteran that his SSA records could not be located and requested that the Veteran submit any relevant documents in his possession. Despite the Veteran's previous statements indicating otherwise, the Veteran responded by stating that he has not received social security benefits for a disability in the past nor is he currently receiving social security disability. The Veteran concluded by stating that there is no additional evidence needed to provide support for his claim, that he had provided the necessary medical documentation to date and asked that that VA continue processing his claim. Having reviewed the record, the Board concludes that it is reasonably certain that the Veteran's SSA records no longer exist and further efforts to attempt to obtain them would be futile. Additionally, the Veteran has requested that the claim be adjudicated on the record; therefore, the Board will adjudicate the claim. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Left ankle The Veteran seeks service connection for a left ankle disability. He asserts this disability had its onset during or results from service, and service connection is therefore warranted. Treatment records demonstrate the Veteran reported ankle pain. June 2013 diagnostic testing revealed mild degenerative arthritis changes in his left ankle. Therefore, a current disability has been established. Service treatment records reflect the Veteran sprained his left ankle playing basketball in February 1969; an x-ray of his ankle immediately following the incident was negative. During the January 1970 separation examination, the examiner indicated that the Veteran's feet were clinically normal. In a corresponding report of medical history, the Veteran self-reported that he was "in good health" and denied having any foot trouble, bone trouble, or joint trouble. If ankle pain was present during service, the Board would expect the Veteran would have responded "yes" when asked if he had foot or joint trouble at separation because a reasonable person would have interpreted the question to include symptoms of ankle pain. The first post-service mention of ankle pain in the evidence of record is the Veteran's October 2012 Application for compensation related to his claim of entitlement to service connection for his ankle. The Veteran did not report any details of any treatment related to the claimed condition. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran's report of medical history at separation from service where he denied foot and joint pain and a clinical examination of his lower extremities revealed no abnormalities. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In June 2013, the Veteran underwent a VA ankle examination. The examiner found it less likely than not that the Veteran's current ankle condition was related to his in-service injury. The examiner reasoned that the Veteran's ankle sprain sustained in 1969 was related to soft tissue and healed; that his current mild degenerative changes in his left ankle were due to the natural progression of aging. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In support of his claim, in February 2014, the Veteran submitted a statement from Dr. K.S., his primary care physician. The physician stated, that after reviewing a letter from the County service department provided by the Veteran, the physician felt the Veteran's left ankle condition "may be related to his service connected." No further rationale was provided. While this opinion appears to support the claim, the opinion is based on "possibility" and not probability and is not supported by a rationale and thus cannot be afforded probative value in consideration of the evidence of record as a whole. The probative value of a medical opinion primarily comes from its reasoning. See Nieves-Rodriguez, supra. While what is speculative in one context might be less so in another, in this case, the medical nexus opinion finding the disability "may be related" to service by itself, without clinical data or other rationale to support it to give it substance, is purely speculative. Bloom v. West, 12 Vet. App. 185 (1999). Therefore, the Board does not afford the opinion any probative weight. The preponderance of the evidence of record is against finding that the Veteran's current ankle condition manifested within a year of service or is causally related to his in-service ankle sprain. Thus, service connection is not warranted on a presumptive or direct basis. The Board has considered the Veteran's statements, to include his assertions that his ankle condition is related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g. pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the June 2013 opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. Moreover, there is no medical opinion or competent and credible evidence in conflict with the VA medical opinion. In sum, although the Veteran has a current ankle condition and sprained his ankle in service, the preponderance of the evidence of record in this case is against finding that the Veteran's current ankle condition was incurred in, aggravated by, or otherwise the result of active service. Therefore, the Veteran's claim of entitlement to service connection for an ankle condition must be denied. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. Left knee The Veteran seeks service connection for a left knee disability. With respect to evidence of a current disability, treatment records report the Veteran has a history of knee pain with an impression of chondrocalcinosis of the left knee. A current disability has therefore been demonstrated. With respect to evidence of an in-service incurrence, the Veteran's service treatment records do not demonstrate any diagnosis or treatment for his knees. Additionally, there is no evidence of an ongoing knee disability on the Veteran's January 1970 separation examination. Upon separation of service, the examiner noted that the Veteran's lower extremities were clinically normal. The corresponding report of medical history was also negative for any knee trouble. The Board finds the preponderance of the evidence does not establish an in-service incurrence. Necessarily, the nexus element for direct service connection cannot be met. As a result, service connection for a knee disability on a direct basis must be denied. The Board acknowledges the Veteran has not been afforded a VA examination with respect to this claim. Here, since there is no evidence suggesting that a current knee disability is related to an in-service injury or disease, a remand for a VA examination is unnecessary. Cf. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Further, the Board finds the preponderance of the evidence does not establish the Veteran's knee condition manifested to a compensable degree within one year of separation or demonstrate chronicity and continuity of symptomatology post-separation. The first mention of a knee disability is in September 2013, related to this claim for service connection. Therefore, the Board finds that service connection for a left knee disability on a presumptive basis as a chronic disease is also not warranted. Next, the Board will consider whether service connection on a secondary basis is warranted. The Veteran, through his representative, has asserted that his left knee disability is secondary to his left ankle disability. See May 2021 Informal Hearing presentation. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) evidence that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service connected disability. The Veteran is currently only service-connected for tinnitus. The record does not support, and the Veteran has not argued that his knee disability is related to his tinnitus. The Veteran has asserted that his knee condition is related to his ankle condition. However, as discussed above, the Veteran is not currently service-connected for a left knee disability. Therefore, service connection as secondary to an ankle disability must fail as a matter of law. 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, 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.