Citation Nr: 21042083 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-05 064 DATE: July 12, 2021 ORDER Entitlement to service connection for right ankle weakness and instability (a right ankle disorder) is denied. Entitlement to service connection for a low back disorder, diagnosed as degenerative joint disease and degenerative disc disease (a low back disorder), to include as due to a right ankle disorder is denied. FINDINGS OF FACT 1. The Veteran's current right ankle disorder did not onset in service, nor is it etiologically related to service. 2. The Veteran's low back disorder did not onset in service, nor is it etiologically related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a low back disorder, diagnosed as degenerative joint disease and degenerative disc disease (a low back disorder), to include as due to a right ankle disorder have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1980 to June 1996. During this time, his military occupational specialties included materiel management, logistics, training and development, and parachutist. This appeal was remanded by the Board in January 2019. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, additional medical records were obtained and associated with the claims file, and new VA opinions were obtained, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in September 2020. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Service Connection Generally, to establish service connection for a present disability, "the veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a "nexus," or causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 116667 (Fed. Cir. 2004). Aggravation of a pre-existing condition beyond the natural progression is presumed where the disability increases in severity over the course of service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. This presumption is rebuttable by clear and unmistakable evidence that the increase is attributable to the natural progression of the condition. 38 C.F.R. § 3.306(b). Finally, the Federal Circuit has held that "disability" in 38 U.S.C. § 1110 refers to the functional impairment of earning capacity, and pain in the absence of a presently-diagnosed condition can cause functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this case, the evidence does not indicate that the Veteran's right ankle disorder is related to service. Thus, service connection is not warranted for a right ankle disorder, nor for a low back disorder, to include as due to a right ankle disorder. 1. Entitlement to service connection for a right ankle disorder 2. Entitlement to service connection for a low back disorder, diagnosed as degenerative joint disease and degenerative disc disease (a low back disorder), to include as due to a right ankle disorder The Veteran asserts that his right ankle disorder is directly related to service, to include multiple parachute jumps and ankle sprains. He also asserts that his low back disorder is related to service, or alternatively, secondary to gait changes from his right ankle disorder. In this case, after reviewing all evidence currently of record, the Board determines that service connection for the Veteran's right ankle or low back disorders is not warranted. The weight of the evidence shows that the Veteran's right ankle weakness and instability was not proximately caused in service; it also shows that the Veteran's low back disorder is not related to service, did not onset during his service, and is not related to service-connected disabilities. As an initial matter, the Veteran has current right ankle and low back disabilities. A January 2014 right ankle treatment record notes poor endurance, impaired sensation, muscle weakness, numbness, pain, and tingling. The Veteran reported feeling instability and difficulty walking on uneven ground. Thus, despite the absence of a disability on imaging, the Veteran has a current right ankle disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran also has a current diagnosis of degenerative disc disease and lumbar radiculopathy, per his June 2020 C&P examination report. Next, the Veteran's in-service treatment records do not indicate the presence of a chronic right ankle or low back disorder. A service treatment record dated January 1988, and two dated August 1988, document treatment for a probable right ankle sprain. Nonetheless, no chronic injury to the Veteran's right ankle or low back was observed in the service records or in the Veteran's February 1996 exit examination report. The Board notes evidence of episodic low back spasms at the Veteran's first post-service examination in September 1996. Nonetheless, it appears that these symptoms resolved long before the Veteran was clinically diagnosed with a low back disorder in June 2012. Indeed, the Veteran, in his June 2012 treatment record, asserts that his back pain started within the previous two to three months. Confirming this history, the Veteran related to his May 2014 C&P examiner that he developed left mid-back pain, worse with extended walking, in about 2012. Therefore, it appears that any injury that might have been evidenced by back spasms resolved close to the time of the Veteran's service. Similarly, according to a December 2013 treatment record, a right ankle disorder was not clinically noted until June 2012 sixteen years after the Veteran left active duty. While the Veteran posits that his right ankle became progressively weaker since service, he does not truly assert that his right ankle was symptomatic since his separation in 1996. Indeed, as he related to his May 2014 and July 2020 C&P examiners, the Veteran's right ankle symptoms subsided until 2013, at which time he began experiencing intermittent right ankle aching, weakness, and instability. Moreover, the Veteran sought treatment for several other disabilities, including those of the sinuses, and did not seek treatment for his back or right ankle until 2012. Finally, despite including service connection for his left ankle in his 1996 claim, the Veteran did not claim service connection for his right ankle. The Board finds that if he had right ankle symptoms at this time, the Veteran would have included them in his initial claim. Accordingly, service connection is not warranted based on continuity of either the medical evidence or the Veteran's statements. Next, service connection cannot be granted because there is no indication from the competent medical evidence of a nexus between the Veteran's right ankle disorder his active service. The evidence also does not indicate that the Veteran's low back disorder is at least as likely as not related to service or service-connected disabilities. Finally, service connection may also be granted when the evidence establishes a medical nexus between active duty and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's right ankle or low back disabilities to active duty or service-connected disabilities. Specifically, the Board places significant value on the opinions of a VA examiner who evaluated the Veteran's symptoms in June 2020, and on follow up opinions dated July 2020 and August 2020. The Veteran's orthopedist, in a January 2014 note, attributed his right ankle symptoms to weakness caused by lumbar stenosis, a condition in which the space surrounding the spinal cord narrows over time, which can lead to neurological symptoms in the legs and feet. As the Veteran's June 2020 C&P examiner noted, the Veteran served for eight more years without incident, indicating that the initial sprain had resolved. Thus, the examiner confirmed that the Veteran's right ankle weakness is indeed due to lumbar stenosis, and not connected to the in-service sprains. As for his low back disorder, the Veteran's June 2020 C&P examiner opined that his low back disorder was less likely related to service. Specifically, the Veteran's occasional low back pain at separation, the long gap in time before his degenerative changes were identified on MRI, the relatively mild nature of the low back degenerative disease, and the Veteran being above 50 years of age, all indicated that the Veteran's current low back disorder was less likely related to service. Similarly, even if the Veteran's right ankle disability were service connected, the evidence weighs against finding that it at least as likely as not caused or aggravated the Veteran's low back disability. The Veteran's examiner, in an August 2020 opinion note, clarified that the Veteran's current degenerative spine disease is not caused by an ankle condition. In addition to clarifying that the Veteran's low back disorder is age-related, the examiner stated that there is no physiologic or anatomic connection between the Veteran's ankle disorder and degenerative spine disease. Accordingly, there is no indication that the Veteran's low back disability was caused or aggravated in service or by any service-connected disability. In arriving at this conclusion, the Board acknowledges the Veteran's statements relating his current disorders to active service. Specifically, the Veteran asserts that by 2013, the tendons and ligaments in his right ankle had stretched, and there was nerve damage up the outside of the right leg from the original injury, causing the ankle to roll to the outside. The Veteran also asserts that the right ankle disability caused him to walk with slight limp, altering his natural gait. Finally, he points to multiple jumps in service as a parachutist. He feels that these factors, in addition to spinal stenosis, may have accelerated his left side mid-back pain. Nonetheless, the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to testify regarding the etiology of any orthopedic disorder. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. The Veteran is not competent to identify a nexus between his current disorders and service or service-related disabilities. While the Board does not dispute the Veteran's credibility in describing his symptoms or the conditions of his service, the weight of the medical evidence is against a finding that they are etiologically related to his active service. Therefore, the Veteran's lay statements that his current right ankle and back disorders was incurred due to parachute jumps, any in-service ankle sprains, or any other incident of service, are found to lack competency. In sum, the most probative evidence of record shows no link between the Veteran's right ankle and an event, injury, or disease incurred in service. The evidence also does not show a link between the Veteran's low back disability and service or any service-connected disability. Based on the evidence of record, the Veteran's claim must be denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Maskatia