Citation Nr: 1749064	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  12-06 422	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to service connection for a right ankle disability, characterized by pain and stiffness.


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

J. E. Griffith, Associate Counsel





INTRODUCTION

The Veteran served on active duty from December 1990 to May 1991.  He also had an unverified period of Army National Guard service from May 1990 to December 1990. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge in March 2013.  A transcript of the hearing is associated with the file.

In October 2014 and August 2016, the Board remanded the case for additional development.

The Veteran also had a claim of service connection for a lumbosacral disorder, status post-fusion, also claimed as degenerative disc disease L5-S1, or lower back injury.  That disability was service connected in a March 2017 rating decision, and thus is no longer in appellate status.


FINDING OF FACT

The weight of the evidence is against a finding that the Veteran's right ankle disability, characterized by pain and stiffness, had its onset in or is otherwise related to active service.






CONCLUSION OF LAW

The criteria for service connection for a right ankle disability, characterized by pain and stiffness, have not been met.  38 U.S.C.A. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Procedural duties

Neither the Veteran nor his representative has raised any issues with respect to 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).

II.  Service connection

The Veteran seeks service connection for a claimed right ankle disability.  He contends that while in basic training, he injured his ankle, and re-injured it after leaving service, on the job in 1997 or 1998.  

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1110.  Service connection generally requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163 (1995).  

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b)(West 2014).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

After review of the record, the Board finds that the criteria for service connection for a right ankle disability, characterized by pain and stiffness have not been met.  See 38 C.F.R. § 3.303.

As noted in the December 2016 VA examination, the Veteran reported that during basic training, he injured his right ankle during a morning run.  It seemed to buckle and cause intense pain.  He states he was told there might be a "hairline fracture" and the ankle was placed in a cast, but he removed the cast to complete training.  The Veteran reports that in 1997 or 1998, after leaving military service, he stepped on a ball of mud while building homes, his right ankle folded and he fell, reminding him of his injury during training.  The Veteran stated he has had chronic aches and stiffness in the right ankle, with an increase in symptoms due to weather changes.  

Private treatment notes dated in August 2007 reflect no abnormality, but the Veteran reported a history of ankle injury with pain.  A February 2011 private radiology report shows no fracture, bone abnormality or visible foreign body; soft tissues were intact and joint spaces were well maintained.   The December 2016 VA examiner opined that the right ankle was abnormal or outside of the normal range.  However, the examiner did not list a diagnosis.  Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has a present right ankle disability, characterized by pain and stiffness.  38 U.S.C.A. § 5107(b); see also Gilbert, 1 Vet. App. at 49.

The Veteran's service treatment records do not reflect a hairline fracture, but do indicate that in February 1991, he complained of shin splints.  Accordingly, the Board finds that the Veteran experienced an in-service right ankle injury.

With respect to the nexus element, at the December 2016 VA examination, the examiner opined that it was less likely than not that the right ankle disability was incurred or caused by service.  The VA examiner reasoned that the in-service injury to the Veteran's right ankle had healed with no further problems in service, but became an issue from an on-the-job injury the Veteran reported was in 1997 or 1998.  

Although the Veteran is competent to report symptoms, he is not competent to address the etiology of disabilities.  See Jandreau v. Nicholson, 492 F.3d 1372, 1374-77 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).  Other than the Veteran's assertions, there is no evidence providing a nexus between the Veteran's service and his current disability.  Accordingly, there is no competent medical opinion that provides medical nexus between the Veteran's service and his right ankle disability, characterized by pain and stiffness.

Absent any probative evidence showing a nexus between the Veteran's right ankle disability and his service, the Board finds that the preponderance of the evidence is against the claim for service connection for a right ankle disability, characterized by pain and stiffness.  38 U.S.C.A. § 5107(b); see Gilbert, 1 Vet. App at 49.  In so finding, the Board notes that the record also fails to establish continuity of symptomatology back to active service; in any event, as the current ankle disability has not been identified as arthritis or any other chronic disease per 38 C.F.R. § 3.309(a), then continuity alone would not suffice for an award of service connection.  Walker v. Shinseki, 708 F.3d 1331 ( Fed. Cir. 2013). 
Accordingly, there is no approximate balance of positive and negative evidence, the benefit of the doubt rule does not apply.  Id. 



ORDER

Service connection for a right ankle disability is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.