Citation Nr: 21041264 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 11-08 823A DATE: July 8, 2021 ORDER Entitlement to service connection for residuals of a left ankle fracture (left ankle disability) is denied. FINDING OF FACT The preponderance of the evidence is against finding that residuals of a left ankle disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for left ankle disability are not 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 October 1984 until his honorable discharge in February 1992. His awards and decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Regional Office of the Department of Veterans Affairs (VA). In May 2015, the Veteran testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. In July 2015, the Board reopened the claim and remanded the matter for further development. The Board remanded the claim to obtain updated VA treatment records and workers compensation records from the United States Postal Service where the Veteran worked from June 1, 1992 to January 1, 2010. The Department of Labor responded to the VA's request letters shortly after the Supplemental Statement of the Case (SSOC) was created and the claim was certified to the Board. The reply included medical records which indicated a left ankle injury that occurred in July 2005. The Board sent the Veteran a letter regarding the additional evidence that was received after the last SSOC. He responded with a waiver of local jurisdiction. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may 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). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). Furthermore, in deciding whether service connection is warranted for a disability, 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. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. 1. Entitlement to service connection for residuals of a left ankle fracture (left ankle disability). The Veteran asserts that he injured his left ankle during ranger school in service, was treated, and then returned to duty without suffering any residuals until years later after a fall in 2005. See December 2020 Appellate Brief. VA treatment records state that the Veteran reported left ankle pain beginning in around 2015 or 2016. See May 2018 VA Treatment Records. As a result, the Veteran has met the first element of service connection as the residuals of his left ankle injury were present during the pendency of his appeal. Unfortunately, there is no reference to a left ankle injury or fracture in his service treatment records. The Veteran's entrance examination was normal, and no ankle injuries were noted. Likewise, his August 1991 medical examination prior to his admittance to the ranger school was also normal. See August 1991 Service Treatment Records. He received medical attention several times between that examination and his separation from service and there was no mention of a left ankle fracture; left ankle, foot, or leg cast; or any other injury to the left ankle. A post-deployment, "Out Processing Check List" from December 1991 states that he was not injured. See Service Treatment Records. Furthermore, his separation examination in December 1991 also states that he had a normal clinical evaluation and that there had been no change in his physical health since his last examination. The preponderance of the evidence is against finding that he injured his left ankle in service as there is no record of such an injury or treatment despite the Veteran seeking treatment for other injuries during that time. The Veteran asserts that he received treatment and was in a cast for three weeks and then finished ranger school. There is no record of such an occurrence in his service treatment records or military personnel record. The Veteran's February 1997 VA examination stated that he injured his left ankle at ranger school; however, this analysis relied solely on a medical history provided by the Veteran as his service treatment records were not available and "outpatient treatment reports show[ed] no evidence of any complaints of the left ankle." See January 1998 Rating Decision. Five years after discharge, a February 1997 x-ray showed "Cortical, sclerotic irregularity of the distal lateral tibia" and recommended obtaining "dedicated tibia/fibula films." The x-ray was "otherwise, normal radiographic appearance of the left ankle." See February 1997 Medical Treatment Record. The Veteran has stated numerous times that he did not have an ankle disability at this time nor chronic pain from service. Later records establish that the Veteran injured his left ankle in 2005 while working for the U.S. Postal Service. See May 2018 VA Treatment Records and April 2021 Workers Compensation Records. An outpatient evaluation stated that his 2005 injury "likely aggravated the underlying degenerative joint disease and or caused the osteochondritis defect." See April 2012 Workers Compensation Records. The Veteran himself asserts that he did not have pain from service and only developed ankle pain as a result of this 2005 injury. The Board finds the contemporaneous medical records to be significantly more probative regarding the etiology of the Veteran's left ankle pain than the statements made at his May 2015 hearing. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Specifically, in a VA evaluation of his left ankle in April 2015 the Veteran reported that he injured his left ankle in ranger school, received conservative treatment at that time, and then presented with pain in April 2015 that he asserted prevented him from working as a mail carrier and participating in physical activity. See April 2015 VA Treatment Records. He then testified at his hearing that he broke his left ankle in ranger school, was placed in a "makeshift cast," the cast was removed three weeks later, and then he finished ranger school without further issue. See May 2015 Hearing. However, his workers compensation records state he fractured his left ankle and right heel in service, but there are no records of either injury. Those records also state that it was only after his 2005 injury that he had pain. The Veteran's inconsistent statements compel the Board to find that the Veteran's more recent statements as to in-service onset are not credible. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Veteran is attempting to recollect events that transpired a long time ago, and the passage of time, along with the inconsistencies noted above, compels a conclusion that the Veteran is not an accurate historian as to these particular statements. See Caluza, 7 Vet. App. at 510-11. Therefore, the Board cannot assign them probative weight. Id. Thus, without more, the preponderance of the evidence is against a finding of an in-service incurrence of a left ankle disability. The second element of service connection has not been met, and an award of service connection is not warranted. See Davidson, supra. Accordingly, entitlement to service connection is denied. (Continued on the next page) In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.