Citation Nr: 22018904 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 16-52 256 DATE: March 30, 2022 ORDER Entitlement to service connection for a right ankle condition is denied. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran has a current ankle disability that began during active service, or is otherwise related to an in-service injury or disease including because the evidence persuasively weighs against finding that the Veteran suffered an in-service right ankle or foot injury. CONCLUSION OF LAW The criteria for entitlement to service connection for a right ankle condition 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 July 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of a Regional Office (RO) of the Veterans Affairs (VA) that reopened and denied the claim for service connection for a right ankle condition. The Veteran testified before the undersigned Veterans Law Judge during a September 2019 videoconference hearing. A transcript of that proceeding is associated with the claims file. In a July 2020 Board Decision, the above-referenced claim was remanded to the RO for further evidentiary development and readjudication. The RO has substantially complied with the Board's remand instructions, so the Board may proceed to the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Veteran contends that he injured his right ankle jumping from a train car in July 1968. See September 2019 Board Hearing Tr. at 3-4; June 2015 VA Form 21-4138 (alleging his "leg was in a cast from the injury [he] received from jumping off the tank car connected to the train"); May 2015 Buddy Statement (younger brother stating that the Veteran told him he was "trying to get off a tank car connected to a train . . . and hurt his right foot" and that the brother "saw the ankle cast when he visited home in July 1968"). 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 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. The evidence of record persuasively weighs against finding that the Veteran has a current ankle disability that began during active service, or is otherwise related to an in-service injury, event, or disease. A private practitioner has opined that the Veteran's right ankle disability (diagnosed as ankle pain, ankle sprain, and moderate degenerative joint disease of the right ankle) "is a service related injury" due in significant part to the Veteran's report that he had onset of the condition on July 1, 1968. See July 2009 Private Progress Note. However, a mere record of a veteran's statements, such as medical history, by a medical professional does not transform those statements into medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (lay statements "simply...recorded by a medical examiner" do not constitute "competent medical evidence"). The private physician's opinion is not probative because the other evidence of record persuasively weighs against finding that alleged ankle injury occurred during service. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). While the Veteran is competent to report that he injured his ankle in July 1968, his reports are largely not credible due to inconsistency with other evidence in the record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Veteran is correct in contending that he underwent his separation examination on May 9, 1968, almost two months prior to his July 26, 1968, discharge. See May 1968 Report of Medical Examination; May 1968 Report of Medical History. He alleges that he injured his ankle in July 1968, prior to his July 26, 1968, discharge and, therefore, it was not noted on his exit examination. See September 2019 Board Hearing Tr. at 3 ("So, in that, that time between having been examined and actually leaving that's when the injury took place. So, you're stating that, that when you signed the waivers stating that there's been no change in your health that did not include the, the accident because it happened after that time. VETERAN: Yes, sir."); December 2015 Notice of Disagreement ("The accident where I injured my ankle/right foot happened after my exit exam. There was no change in my health when I signed the waiver in May 1968."). The contemporaneous evidence, however, contradicts this testimony. On July 26, 1968, the day of his discharge, the Veteran signed a waiver that stated: I underwent a separation medical examination more than 3 working days prior to my departure from place of separation. TO THE BEST OF MY KNOWLEDGE, SINCE MY LAST SEPARATION EXAMINATION: There has been no change in my medical condition. July 1968 Statement of Medical Condition (emphasis in original). The Veteran's testimony that he signed the waiver contemporaneous with his discharge examination or, alternatively, at some time prior to the alleged early July 1968 injury, is directly contradicted by the July 1968 Statement of Medical Condition that he signed on the day of his discharge. The contemporaneous statements of the Veteran regarding his medical condition at the time of discharge outweigh his statements over four decades later, mostly made in the context of a claim of entitlement to benefits, even when combined with the other evidence of record, to include his brother's testimony that he saw the Veteran in a right ankle cast in July of 1968 prior to his discharge. The Board acknowledges that he told a medical provider in 2009 that he injured his right ankle in July 1968 with symptoms since that time. There are treatment records from 2003 discussing complaints of right knee, leg, and ankle pain. The Veteran reported at that time that his symptoms had a duration of "one year." See June 2003 Triage Encounter. The Veteran has not consistently reported to medical providers that his ankle pain had onset in 1968. Therefore, the Board gives very little probative weight to the statement he made in July 2009 to a medical provider. Moreover, that 2009 statement was made after he filed his initial claim for benefits with VA, while the 2003 statement was made prior to that filing. And, in any case, as discussed above, the contemporaneous documentation weighs heavily against finding that the Veteran had a significant medical event in July 1968. The evidence of record persuasively weighs against finding that the Veteran injured his right ankle in July 1968. While the Veteran believes his current right ankle condition is related to an in-service ankle injury when he allegedly jumped from a train car, the evidence of record persuasively weighs against findings that the alleged injury occurred during his active service. Again, the Veteran specifically disclaimed any change in his health in a statement he signed on July 26, 1968, the day of his discharge. He alleges a serious right ankle injury that required being put in a cast. The Board finds such an injury normally would have been documented in a statement like the July 1968 statement explicitly intended to document injuries occurring subsequent to the discharge examination. The most probative evidence of record includes the May 1968 Report of Medical Examination and May 1968 Report of Medical History, which weigh heavily in favor of finding that the Veteran had no right ankle condition at the time that exam was done, and then the July 26, 1968 Statement of Medical Condition provides compelling evidence that the Veteran did not suffer any injury, particularly including a right ankle injury, between May 9, 1968 (the date of the exam and medical history) and July 26, 1968, as it is reasonably to conclude he would have reported such a significant injury at that time that he now claims required a cast. The evidence is not in approximate balance, but is persuasively against the claim, therefore there is not reasonable doubt to be resolved in favor of the Veteran. 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch v. McDonough, 21 F.4th 776, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). Entitlement to service connection for a right ankle condition is denied. Duties to Notify and Assist The July 2020 Board Decision directed the RO to request that the National Personnel Records Center or other appropriate custodian(s) search the inpatient records for McDonald Army Hospital at Fort Eustis, Virginia for any record concerning the Veteran for June 1968 and July 1968. The RO was instructed to document all efforts and negative responses in the file and then, if it is determined such records do not exist or further efforts to locate them would be futile, to make a formal finding to that effect. The RO submitted a July 2021 NPRC Search Request and received a response, documented in the file, that "Searches of Ft. Eustis for 1968 were conducted, but no [clinical record] was located." The RO then concluded that all efforts to obtain the needed information have been exhausted and the RO "determined that further attempts to obtain the records would be futile." See November 2021 Final Attempt Letter (informing the Veteran of the RO's efforts and conclusion regarding the futility of further attempts to obtain the records). This documentation and the findings by the RO that further efforts to locate the records would be futile satisfies the Board's July 2020 remand instructions and satisfy VA's duty to assist the Veteran in obtaining treatment records allegedly documenting the right ankle injury. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In particular, in the March 2022 Written Brief Presentation, the Veteran's representatives included boilerplate language regarding compliance with prior remand instructions, but failed to articulate any deficiency in the RO's compliance with the Board's remand instructions or to otherwise any duty to notify or assist error. Therefore, the Board does not need to discuss VA's compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.