Citation Nr: 25005579 Decision Date: 04/24/25 Archive Date: 04/24/25 DOCKET NO. 14-10 655 DATE: April 24, 2025 ORDER Entitlement to service connection for a left leg condition is denied. FINDING OF FACT The Veteran's left leg condition is neither directly related to service nor secondary to a right leg condition. CONCLUSION OF LAW The criteria for entitlement to service connection for a left leg condition are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310(a). INTRODUCTION The Veteran served honorably, including active-duty service from February 1964 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) regional office (RO). Most recently, the matter was remanded by the Board in November 2022. The Veteran has testified at three Board hearings, one before each member of the panel of Veterans Law Judges issuing this decision. A recent inquiry from the Veteran's attorney regarding the status of their request for a Board hearing. See March 3, 2025, Letter ("[M]y client has now been waiting a year for a hearing with the Board."). The Board hearing requested after the most recent Board remand was already held on November 8, 2024. See November 8, 2024, Board Hearing Transcript & December 20, 2024, Attorney Post-Hearing Brief ("As you know, [the Veteran] had a hearing before [an undersigned Veterans Law Judge] on November 8, 2024, on the issues entitlement [sic] to service connection for left leg injury residuals."); see generally Quinn v. Wilkie, 31 Vet. App. 284 (2019) (holding that the legacy version of 38 U.S.C. § 7107 required "an opportunity for a hearing" (emphasis added)). As the Board has not issued a decision or remand of this appeal since the most recent hearing in November 2024, the Veteran has no right to an additional hearing at this time. Quinn, 31 Vet. App. at 290. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for a left leg condition. Until the most recent Board hearing, he also maintained that the left leg condition was due to an in-service helicopter injury to the left leg. At the most recent Board hearing, however, he newly recalled that it was actually his right leg that was injured by the helicopter, as documented in his service medical records. In this decision, the Board ultimately concludes that service connection is not warranted for the Veteran's claim. As explained below, the Board finds that the Veteran's service-connection claim is for his left leg, as he has asserted all along; it is only the theory of service connection that has changed, from a contention that the left leg is directly due to an in-service left leg injury, to a contention that the left leg is secondary to overcompensating for the in-service right leg injury (both during and after service). But for either theory of the claim, there is no sufficient credible evidence to establish entitlement to service connection. First, though, the Board reviews the history of the case. 1. Background The Veteran completed his term of active duty with the Navy in February 1966, and in February 1969 he filed a VA claim for compensation for an "Ankle Injury." The Veteran's service medical records (SMRs) documented a helicopter-related-injury to the right ankle, so the RO processed the claim as one for the right ankle, ultimately denying it. See May 19, 1969, VA Form 21-526; December 7, 1964, Service Medical Record ("While pushing helicopter, wheel of helo ran over right foot."); January 6, 1970, Rating Decision. The Veteran did not appeal that decision. In the Veteran's claim underlying this appeal, he submitted a September 2011 request for compensation for "left leg residuals." See September 22, 2011, Statement in Support of Claim & May 15, 2012, VA Form 21-526. When the claim was denied, the Veteran's notice of disagreement and substantive appeal both disagreed with the denial of benefits for left leg injury residuals. See October 25, 2012, Notice of Disagreement; March 28, 2014, VA Form 9. Throughout this appeal, he has been represented by several attorneys from the same law firm (including the attorney currently of record). See October 25, 2012, June 8, 2015, and VA Forms 21-22a. The Veteran first testified before the Board at a June 2015 hearing. His attorney stated that the claim was for service connection for residuals of a "left leg injury" and then elicited the Veteran's description of the in-service injury to the left leg: On the flight line of a Navy ship, the Veteran was pushing a helicopter that had just landed, and a ground swell rocked the ship, which in turn rolled the helicopter laterally in a way that knocked the Veteran over and caught the bottom of his pants in the rear wheel. As the helicopter wheel continued to turn, it twisted his ankle and then rolled over it. He said he was carried down to sick bay, hospitalized for two days, and then put on light duty for the left ankle injury. See June 8, 2015, Board Hearing Transcript. The Veteran also testified about a post-service work injury in 1972 that resulted in left ankle surgery and, as a complication, a staph infection. After the surgery, doctors told him the most he could do for the left ankle going forward was to wear special work boots, which he did for his 35-year career with the railroad, but which after all those years had presently made his legs "black and blue from where the boots gave [him] the support." When asked why he thought his left leg condition was due to the service helicopter accident and not the 1972 work injury requiring surgery, he explained that he believed the service injury "weakened the ankle" and made it more susceptible to the work injury in 1972. See June 8, 2015, Board Hearing Transcript. In January 2016, the Board issued a remand that in part requested that the Veteran clarify the nature of his claim. The Board noted that the Veteran's SMRs "reflect that, in December 1964, the Veteran's right foot was injured after being run over by a helicopter wheel." The RO was instructed to "[a]dvise the Veteran and his representative that the Veteran's testimony concerning his left ankle being run over by a helicopter wheel in service conflicts with his service treatment records documenting that the in-service injury involved his right ankle." The RO was also directed to request clarification from the Veteran and his attorney "as to whether he is seeking service connection for a right or left extremity disability" and any "details as to the mechanism of injury and current diagnosis for the claimed lower extremity disability." See January 6, 2016, BVA Remand. The RO complied with those remand directives and sent a letter to the Veteran and his attorney in August 2016. No response was received, so the RO contacted the Veteran by phone in July 2018, but the Veteran directed all questions to his attorney. See July 16, 2018, Report of General Information ("Per BVA remand contacted the Veteran in an attempt to determine which ankle/foot he is appealing. The Veteran was immediately rude, continually swearing and insisting the phone call was a stall tactic. He stated that he was not answering questions, and that we should route all questions through his attorney. The Veteran said a few more swear words, and hung up."). Another request for clarification was mailed to the Veteran and his attorney, and in August 2018 the Veteran's current attorney of record, Alexandra Jackson, responded: In response to your letter needing clarification as to which extremity, right or left, is being claimed, I have contacted my client and it is his left ankle that he is looking to be service connected for. [The Veteran] stated that they were moving the helicopter and something happened causing it to start leaning left and when it did, his left foot was run over. He has made several attempts to try and get this corrected. See August 8, 2018, Attorney Correspondence. When the matter returned to the Board, the Veteran's attorney (different than the first hearing, and not the currently appointed attorney, but from the same firm) requested a second hearing, which was held in October 2020. The opening statement went as follows: ATTORNEY: At the heart of this claim, [the Veteran] is - is claiming service connection for a right leg injury - not a left leg injury - VETERAN: No, no, no, no. It's the left leg. They claimed it was the right. It's the left leg that was injured. ATTORNEY: Oh, I'm sorry. Yes, I'm - I'm - I'm very sorry. Yes, you are correct. The [Veteran] is claiming a left leg injury, and the January 2016 BVA decision remanded his claim for clarification as to which leg [the Veteran] was claiming service connection. He is claiming a left leg injury, but there is a Service Treatment Record in [the Veteran's] personnel files that note[s] that he had a right leg injury regarding an in-service helicopter accident. This STR is incorrect -- quite accidentally or otherwise incorrect. It is a left leg injury [the Veteran] is claiming and, Your Honor, this STR typo, for all we know it to be, has caused [the Veteran] considerable angst and stress and to extend much time and resources trying to get his left leg service connected, but this one STR has stood in the way. See October 7, 2020, Board Hearing Transcript. The Veteran went on to repeat his contention from the first Board hearing that the in-service helicopter injury to the left leg made it more susceptible to the post-service work injury in 1972. The Veteran's attorney offered that the entry in the SMRs "contains a typo or a mischaracterization or [was] just an oversight" and that "[the Veteran] has spent decades trying to correct this mistake. It was his left leg that was injured in service and that he has claimed service connection for ever since 1969." The Veteran remarked about his right leg, "My right leg is fantastic. I can get out and dance with it. ... [M]y right leg is just as fine as can be." Id. In a November 2020 post-hearing brief, the Veteran's attorney repeated the request for the Board to "correct the injustice" of the SMR "erroneously noting a right leg injury." See November 16, 2020, Appellate Brief. The Board's most recent November 2022 remand followed, which instructed the RO to provide VA examinations. See November 15, 2022, Board Remand. With that development completed, the matter has now returned to the Board. The Veteran's attorney requested a third hearing, which was held in November 2024. A different attorney than at the two prior hearings (and different than the one currently appointed, though from the same firm) opened this hearing with a new clarification: [The Veteran] has mixed up which leg was injured in service. And so, he feels that he has a service connection to - just the fact of an accident that occurred during service to his right leg. And so, today, we are seeking service connection for the right leg. See November 8, 2024, Board Hearing Transcript. The Veteran explained, "I had totally forgotten about [the right leg] because then my left leg ... just kept making up for what my right leg couldn't do, and it got injured." For example, he had to use crutches when recovering from the injury, "[s]o [he] put more and more weight on his [left] leg. ... [I]t just became a nightmare of twisting the left leg because the right leg wasn't strong enough to support all [his] weight." When asked for further details about the in-service helicopter injury to the right leg, the Veteran said that he could not recall ("I'm forgetting things more and more now."). He repeated his statements from the prior hearings about being put on light duty after the in-service helicopter injury, about the post-service left ankle surgery, and about needing to wear special work boots to stabilize his ankles. See November 8, 2024, Board Hearing Transcript. In a post-hearing memorandum, the Veteran's currently appointed attorney of record said that the Veteran had "failed to recall that he injured his right leg in service" and noted that the Veteran's service-connected PTSD "greatly affects his memory." See December 20, 2024, Post Hearing Memorandum. 2. Discussion The Board finds that the Veteran's service-connection claim must be denied. Service-connection benefits are warranted for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing entitlement to service connection generally requires evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a current disability that is proximately due to or aggravated in severity beyond its natural progression by a service-connected injury or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). When assessing the evidence, the Board evaluates its competency, credibility, and probative value. See 38 U.S.C. § 7104(a); e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (holding that the Board's role is to assess the competency, credibility, and weight of all evidence). Evidence may be divided into two broad categories: medical evidence or lay evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions, or statements conveying sound medical principles found in medical or scientific treatises or research reports. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring a specialized education, training, or experience, but rather evidence that is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). As mentioned above, the Board finds that the Veteran's service-connection claim is for the left leg; it is only the theory of service connection that has changed. The Board further finds, however, that the criteria for service connection are not met under either of the theories offered. a. The Veteran's claim is for service connection for the left leg. The Board first concludes that the Veteran's claim is for service connection for a condition of his left leg. From the beginning of this matter, the Veteran has maintained that it is his left leg for which he seeks disability compensation. The informal claim and then formal claim initiating this matter was expressly for residuals of a "left leg injury." In his filings appealing the RO's denial, he identified the left leg as the condition appealed. At the first Board hearing, he and his attorney said they were seeking service connection for a left leg condition. When the Board remanded for the RO to ask the Veteran and his attorney for clarification, they submitted a letter clearly stating that the claim was for the left leg. At the second Board hearing, the Veteran's attorney opened with a statement that the Veteran was seeking service connection for the right leg, but the Veteran immediately interjected that it was his left leg that he was claiming. His attorney apologized, corrected himself, and for the rest of the hearing (and in the post-hearing brief) asserted that the claim was for the left leg. The Veteran emphasized that his right leg was "fantastic" such that "I can get out and dance with it." Among this overwhelming evidence that the claim is for the left leg, there is only one reason to consider that the claim could be otherwise: the attorney's statement at the most recent Board hearing that, in light of the Veteran's new recollection that it was his right leg injured during service, "we are seeking service connection for the right leg." But that statement is belied by the Veteran's testimony that followed it. After the Veteran clarified that he now recalled it was actually his right leg that was injured by the helicopter, he went on to explain how he had quickly forgotten the details of the injury because of how soon his left leg started hurting in compensating for the injured right leg. See November 8, 2024, Board Hearing Transcript ("The problem was that I had totally forgotten about [the right leg] because then my left leg -- it just -- it kept making up for what my right leg couldn't do, and it got injured."). And for the rest of the hearing, the Veteran's testimony repeatedly focused not on how his right leg was injured, but on how that injury forced him to overcompensate with the left leg, injuring it. See November 8, 2024, Board Hearing Testimony ("I put more and more weight on my left leg.... [I]t just became a nightmare of twisting the left leg because the right leg wasn't strong enough to support all my weight."; "[T]hat was the left leg because I wasn't able to bear all the weight on my right leg."). The Board therefore finds that the Veteran's claim is for the left leg. This has been the Veteran's unchanging contention throughout the appeal (even evoking his energetic protest when his attorney asserted otherwise at the October 2020 hearing). Although his recollection about the details of the in-service injury changed as of the November 2024 hearing, the ultimate relief he seeks has remained the same. The Board acknowledges the December 2024 letter from the Veteran's attorney that his service-connected PTSD impairs the Veteran's memory, which may explain his changed recollection. See December 20, 2024, Post Hearing Memorandum. The evidence does not suggest, however, that the Veteran is otherwise so cognitively impaired that he cannot formulate the relief that he seeks in pursuing this claim for VA compensation. See, e.g., May 24, 2024, VA PTSD Examination (recording the Veteran's PTSD symptoms). To the contrary, the evidence shows that the Veteran is clear about what he is claiming: service-connected compensation for his left leg. Accordingly, it is entitlement to service connection for a left leg condition that the Board will adjudicate. b. Entitlement to service connection for a left leg condition is not warranted. After reviewing all of the evidence, the Board finds that that claim must be denied. The Veteran's testimony is not credible, and without that evidence, there is insufficient other credible evidence to establish entitlement to service connection for a left leg condition. The Veteran's testimony is subject to the Board's ordinary evaluation of competency, credibility, and probative value. See Jandreau, 492 F.3d at 1376. As recounted above, for approximately twelve years the Veteran asserted that his current left leg condition was directly due to service because it was injured in the helicopter accident. Then, at the most recent hearing, the Veteran reversed course and explained that though it was actually his right leg injured in the helicopter accident, his left leg condition was due to overcompensating for the right leg injury. Regardless of whether either of these might be the case, it is clear here that the entirety of the Veteran's statements about the mechanism of his left leg injury are not credible. The Board acknowledges the Veteran's belief that his new recollection is what accurately reflects how his left leg condition is related to service. But the Board does not find his new recollections reliable, not only in light of his previous absolute insistence that it was his left leg injured during service, but also given his inability at the newest hearing to provide more details about his contentions because he is "forgetting things more and more." Because the Veteran's testimony about how his left leg injury is related to service is not credible, it is of no probative value. Id. That finding is ultimately fatal to his claim, because the Veteran's testimony is the only evidence to support that a left leg condition may have been directly incurred during service or may be secondarily related to the right leg. That evidence is of no probative value, and there is no remaining evidence sufficient to establish service connection on a direct or secondary basis. The Board notes here that although the Veteran's claim is for the left leg, service connection for the right leg could be considered as an intermediate determination in light of the Veteran's new assertion that his left leg is due to the in-service right leg helicopter injury. See DeLisio v. Shinseki, 25 Vet. App. 45, 55 (2011). But because the Board finds that there is insufficient credible evidence to establish a relationship between the left leg condition on appeal and a potentially service-connected right leg condition, service connection for the right leg as an intermediate step cannot possibly affect the relief sought for the left leg, rendering it a moot issue that the Board therefore will not raise. The Veteran's testimony regarding the mechanism of injury has been found unreliable, and because the Veteran conceded at the most recent Board hearing that he can no longer recall many of the details of the injury, any additional assistance from VA, to include curing any potentially inadequate prior opinions or obtaining new opinions, would not raise a reasonable possibility of aid the Veteran in substantiating his claim. 38 U.S.C. § 5103A(a)(2). Those opinions would require considering the details of the claimed mechanism of injury, and the Veteran, who is the exclusive source of those details, cannot reliably offer them. The Board also notes that the Veteran participated in toxic exposure risk activities (TERAs), which exposed him to herbicide agents as well as to aircraft chemicals and engine fumes. See March 30, 2020, VA Memo (conceding exposure to herbicide agents) & March 11, 2020, Veteran Statement (alleging exposure to "chemicals" and jet engine fumes working on the flight line). There is no duty to obtain an opinion regarding a potential relation between these TERAs and the left leg, however, because the Secretary has determined there is no indication of a connection between TERAs and claims, like this one, that are based on physical trauma. 38 U.S.C. § 1168(b); Director's Memorandum at *12 (June 12, 2024) (Subj: Updated Guidance on Processing Claims Involving Public Law 117-168, Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022, or the Honoring our PACT Act of 2022). In sum, there is insufficient credible evidence to establish that the Veteran's left leg condition is directly related to service or secondary to a potentially service-connected right leg condition. Without such evidence, entitlement to service connection for a left leg condition must be denied. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(a), 3.310(a). J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals KRISTIN HADDOCK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.