Citation Nr: 22051144 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 17-28 171 DATE: September 8, 2022 ORDER Entitlement to service connection for a right ankle disorder is denied. Entitlement to service connection for a left ankle disorder is denied. FINDINGS OF FACT 1. The Veteran's right ankle disorder is not etiologically related to his service, did not have its onset during service and arthritis did not manifest to a compensable rating within one year of service discharge. 2. The Veteran's left ankle disorder is not etiologically related to his service, did not have its onset during service and arthritis did not manifest to a compensable rating within one year of service discharge. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right ankle disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.655. 2. The criteria for entitlement to service connection for a left ankle disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1976 to June 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal of a September 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Board remanded the issues on appeal to the RO for additional evidentiary development, to include scheduling the Veteran for a VA examination and etiology opinion. Pursuant to the Board's remand directives, the Veteran was scheduled for VA examinations for his right and left ankle disorders in April 2022. The Veteran provided notice of the examination both in written correspondence and telephonically. However, the Veteran did not appear for the examination and did not show good cause for his absence. The Veteran was again scheduled for VA examinations for his right and left ankle disorders in May 2022. Again, despite being provided adequate notice, the Veteran failed to appear for the scheduled examination, did not request that the examination be rescheduled and did not show good cause for his absence. The Board notes that VA's "duty to assist is not always a one-way street." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. Id. Accordingly, the Board finds that VA has met its duty to assist and there has been substantial compliance with its September 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. Service Connection Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 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). Certain chronic diseases such as arthritis will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 U.S.C. §§ 3.303, 3.307, 3.309. When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to service connection for a right ankle disorder is denied. 2. Entitlement to service connection for a left ankle disorder is denied. The Veteran is seeking to establish service connection for his left and right ankle disorders. Specifically, the Veteran contends that his present right and left ankle disorders are the result of in-service trauma and injury. As a procedural matter, the Veteran did not appear for two scheduled VA examination for his left and right ankles, has not requested that the examinations be rescheduled and he has not provided good cause for failure to report to said examinations or requested that new VA examinations be scheduled. 38 C.F.R. § 3.655. The record further reflects that the Veteran was provided adequate notice of the scheduled examinations. The statement of the case (SSOC) issued in June 2022 also made notice of the Veteran's failure to report for his scheduled examinations but the Veteran has not argued that he did not receive notice of the examination; nor has he provided good cause for his failure to report. As such, the Board finds that VA has complied with its duties to the Veteran in connection with this claim. Therefore, the Board will adjudicate the claim based on the evidence of record. The Veteran's service treatment records reflect treatment for left ankle effusion in December 1978. A June 1978 service treatment record reflects complaints and treatment for trauma to the right ankle. A December 1978 service treatment record reflects treatment for left ankle soft tissue injury. The Veteran has further reported that he has suffered ongoing pain and symptomatology in his right and left ankles in the years after discharge from service. Post service treatment records are silent for any complaints, treatment, or diagnoses relating to a bilateral ankle disorder until 2012, more than four decades after separation from service. The Board has first considered whether service connection may be awarded under 38 U.S.C. §§ 3.307, 3.309 which allows for a presumption of service connection upon a showing that arthritis manifested within one year of discharge from service. However, these provisions are not available as the record does not reflect that the Veteran's ankle conditions manifested in arthritis during service or within one year of separation from service. The record reflects that the Veteran's bilateral ankle arthritis was first diagnosed in 2014. As such, the presumptive provisions of 38 U.S.C. §§ 3.307, 3.309 are not for application. With regards to direct service connection, the Veteran was provided a VA examination for his left and right ankle disorders in August 2014. The examiner diagnosed bilateral ankle osteoarthritis and opined that it was less likely than not that the Veteran's bilateral ankle disorder was the result of his service. The examiner reasoned that the Veteran had suffered isolated injuries to his ankles in 1978 while in-service, that the evidence did not reflect that the injuries led to an ongoing ankle disorder and that the Veteran's post-service treatment records were silent for any complaints or treatment for any ankle disorders. The Board notes that the examiner relied on an absence of treatment records to support his negative nexus opinion. The examiner's opinion does not appear to reflect the Veteran's reports of ongoing ankle pain and symptomatology in the years after his discharge from service to the present. The Board noted in its September 2021 remand that the Veteran has since made statements regarding continuous bilateral ankle symptomology since service and found that additional opinion as to direct and presumptive service connection was necessary. Regrettably, the Board notes that a new VA examination and opinion that adequately considered the Veteran's competent reports of ongoing ankle symptomatology would have immensely helpful in establishing a nexus to service. As noted above, the Veteran failed to appear for the scheduled examination, has not requested that the examination be rescheduled and has not provided good cause for his failure to appear for the examination. However, as the record stands, the evidence does not establish to at least equipoise or greater that the Veteran's present left and right ankle disorders are related to his in-service injuries. Although the Veteran's reports of ongoing symptomatology should have been considered in the VA medical opinion evidence of record, the Board also notes that a lengthy absence of treatment, although not fatal to a claim, does have a tendency to weigh against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The matter of determining a medical nexus between present bilateral ankle disorder and service is in the purview of trained medical professionals with appropriate medical training and expertise. As such, the Board lends greater probative value to the VA medical opinion evidence over the lay assertions of record. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Upon a thorough review, the Board finds that the evidence does not reach equipoise or greater regarding a medical nexus between the Veteran's present ankle disorders and his in-service injuries. The Board notes the lengthy gap in treatment and absence of ankle complaints in the decades after separation from service. Further, the Board notes that the medical opinion evidence is against the Veteran's claim. As such, service connection for right and left ankle disorders is not warranted. The appeals are denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.