Citation Nr: A25035663 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 241204-494403 DATE: April 17, 2025 REMANDED Entitlement to service connection for left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1969 to May 1972. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2024 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In the December 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the May 2024 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran, or representative, with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. However, because the Board is remanding the claim herein, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). Further, the Board acknowledges that the time to request a docket switch has not yet elapsed. Williams v. McDonough, 37 Vet. App. 305 (2024). However, under 38 C.F.R. § 20.202(c)(2) a docket switch is precluded if the Veteran has submitted evidence or testimony as described in 38 C.F.R. §§ 20.302 and 20.303. Along with his December 2024 VA Form 10182 Notice of Disagreement, wherein he elected the Evidence Submission docket, the Veteran submitted additional evidence in the form of a Statement in Support of Claim with an attached letter the Veteran wrote concerning his claim. Accordingly, the Board will proceed with adjudication of the Veteran's claim, as the Veteran chose the Evidence Submission docket, submitted evidence, and the Veteran's appeal is advanced on the docket. Additionally, in the May 2024 rating decision, the RO found that new relevant evidence had been received to reopen and readjudicate the Veteran's claim. As there is not clear and unmistakable error in the finding, this favorable finding is binding on the Board. 38 C.F.R. § 3.104(c). As such, the Board will proceed to the merits. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as "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 disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Entitlement to service connection for left ankle disability is remanded. The Veteran contends that he sprained his left ankle in service, which led to continued painful symptomology and a weakened ankle. The Veteran asserts that the ankle's weakened state caused him to suffer from instability and later left ankle sprains. As an initial matter, in his May 2022 Supplemental Claim, the Veteran indicated that he was treated in 1971 for a left ankle sprain at the Wurzburg, Germany Army Hospital and requested assistance from the RO in obtaining the records. In his April 2023 Supplemental Claim, he again stated that he was treated in 1971 for his left ankle sprain at the Wurzburg, Germany Army Hospital, but believed that the records were lost. However, with his April 2024 Supplemental Claim, he submitted a two-page treatment record from the Wurzburg, Germany Army Hospital installation clinic, which indicated that he sought treatment for a sprained ankle in April 1971. An x-ray was taken, which was negative for a fracture. In his December 2024 Statement in Support of Claim, the Veteran stated that he believed he still had missing service treatment records (STRs) relating to the treatment and care of his left ankle while in service. The Veteran's December 2024 submission indicates that he received treatment for his left ankle at the Wurzburg, Germany installation clinic. However, there is no indication in the claims file as to how the Veteran obtained that portion of his STRs. Based on the Veteran's belief that other STRs are still outstanding and the RO's failure to document attempts to obtain the installation hospital records, the Board concludes that there may still be outstanding treatment records. Since the Wurzburg, Germany Army Hospital and its associated installation clinics are federal facilities, VA guidance provides that the RO should have tried to obtain the treatment records from the Joint Longitudinal Viewer (JLV) or by using VA Form 21-8359, Information Re Veteran in Uniformed Services Hospital (Request by Department of Veterans Affairs). See M21-1, III.ii.1.A.1.d. The claims file does not reflect the RO made any attempts to retrieve treatment records from the Wurzburg, Germany Army Hospital and its associated installation clinics. Thus, VA has not fulfilled its duty to assist by attempting to obtain identified federal records, and remand is needed to cure this pre-decisional duty to assist error. See 38 U.S.C. § 5103A(c)(2); 38 C.F.R. §§ 3.159(c)(2), 20.904(a). Additionally, the VA nexus opinions afforded the Veteran are inadequate. In a May 2023 VA nexus opinion, the examiner concluded that the Veteran's current left deltoid ligament sprain and left ankle instability were less likely than not related to service. The examiner noted that the Veteran's STRs do not document any injury, diagnosis, or condition of the left ankle. Further, the examiner cited that the Veteran's March 1972 separation Report of Medical Examination did not indicate any issues with the Veteran's feet or lower extremities. Accordingly, the examiner concluded that the Veteran's claim of a sprained ankle in service is not supported by any STRs. Additionally, the examiner reasoned that even if the Veteran suffered a sprained ankle in service, it was less likely that the Veteran's current ankle sprains, weakness, and bilateral instability are due to an in-service sprained ankle. Instead, the examiner found it more likely that the Veteran's current left ankle condition was due to the Veteran's bilateral lower extremity idiopathic neuropathy. The examiner reasoned that the Veteran's range of motion and instability are more pronounced in his right ankle, with his right leg also suffering from worse neuropathy than his left leg. This, the examiner reasoned, would indicate that the neuropathy is the causal factor of the Veteran's left ankle condition. In May 2024 the RO obtained another VA nexus opinion after the Veteran submitted his limited STRs from the Wurzburg, Germany Army Hospital clinic. In this examination, the clinician diagnosed the Veteran with a severe left ankle sprain and left deltoid ligament sprain (chronic/recurrent). The examiner provided a negative nexus opinion, finding that the Veteran's current left ankle condition was less likely than not related to the Veteran's in-service sprained ankle. The examiner's rationale was that the Veteran's March 1972 separation Report of Medical Examination did not document any issues with the Veteran's feet or lower extremities. Instead, the examiner found it more likely that the Veteran's current left ankle symptomology was due to his idiopathic neuropathy of the bilateral lower extremities and not a single ankle sprain of the left ankle that occurred during active duty. Regarding the Veteran's lay statements, in the Veteran's March 2021 Statement in Support of Claim, the Veteran stated that while stationed in Germany he sprained his left ankle. He then described being taken to an installation military hospital and given crutches. He also stated that he continued to have issues with his left ankle ever since his in-service sprain. He described constant pain and weakness, along with spraining the ankle multiple times since service. Additionally, in April 2023 retired Lieutenant Colonel F.B.O. wrote a "buddy letter," stating that he witnessed the Veteran still suffering symptoms from the Veteran's leg sprain approximately nine months after the injury. He described the Veteran still favoring one leg over the other at times. He stated that the Veteran also complained about having to use the lengthy stairs at the unit headquarters in Wurzburg, which the Veteran described as still causing discomfort in his left ankle. The Board finds both nexus opinions inadequate. First, both opinions are based, in part, on a lack of medical evidence. Lack of evidence cannot be treated as substantive negative evidence. In other words, reliance on the lack of medical evidence, especially without consideration of lay statements, is an inadequate rationale. The United States Court of Appeals for Veterans' Claims (the Court) has held that the mere absence of evidence does not equate to unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence); see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomology since service). The May 2023 and May 2024 VA nexus opinions fail to demonstrate consideration of the lay statements of record concerning continuity of symptomology. Additionally, the May 2023 VA opinion was not based on sufficient information, as the examiner did not have access to the Veteran's STR that indicated treatment for a left ankle sprain while in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (requiring the Board to ensure that medical opinions are made based on sufficient facts or data and the application of reliable medical principles). In May 2022 the Veteran's treating physician wrote a letter on the Veteran's behalf. This private physician stated that he had been treating the Veteran since 2005 for an injury to the Veteran's left ankle. However, this physician did not provide a nexus opinion. Additionally, the Board has considered the lay statements of the Veteran indicating that he believes that his current issues with his left ankle are related to the sprain to his left ankle suffered while in service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The disability at issue is not a condition that is readily amenable to probative lay comment regarding etiology. The Veteran was entitled to an adequate medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the only medical nexus opinions of record are inadequate, which is a pre-decisional duty to assist error, remand is required. 38 C.F.R. § 20.802. Thus, entitlement to service connection for left ankle disability is remanded. The matters are REMANDED for the following action: 1. Make as many requests as necessary to obtain the Veteran's complete service treatment records from the Wurzburg, Germany Army Hospital and its related clinics. All attempts to secure these records must be documented in the record, and the Veteran must be notified of the unavailability of any records in accordance with 38 C.F.R. § 3.159(e). 2. Arrange for an addendum opinion from an appropriate clinician to determine the likely etiology of the Veteran's left ankle condition. The entire claims file, including a copy of this remand, must be made available to the examiner, who must note its review. Following a review of the Veteran's file, the examiner must provide an opinion on the following: (a.) Whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left ankle condition had its onset during service or is otherwise causally or etiologically related to his active-duty service? The examiner must address the Veteran's lay statements regarding the onset and continuity of his symptoms, along with the April 2023 "buddy letter" from retired Lieutenant Colonel F.B.O., the May 2022 report of from the Veteran's private physician Dr. S.F., the two page STR submitted by the Veteran in April 2024, and the April 2024 Facebook photo from May 2010 showing the Veteran only wearing a left ankle brace. In considering any lay statements of record, the examiner must note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. If medical literature is relied upon, the examiner must identify and specifically cite each reference material used and discuss how it relates to the Veteran's particular medical history. The examiner must also specifically discuss any contradictory evidence in the claims file and reconcile that evidence with the findings. All opinions must be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. If an examiner determines that an opinion cannot be provided without resorting to speculation, the examiner must explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, the examiner must comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Finally, the examiner must note that the lack of documented complaints, symptomology, treatment, or diagnosis in service, while probative, cannot serve as the sole basis for a negative finding. John R. Doolittle, II Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.M. Winchell 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.