Citation Nr: 18124056
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-31 433
DATE:	August 3, 2018
ORDER
Entitlement to service connection for bilateral ankle disability, best characterized as degenerative joint disease of each ankle, is denied.
FINDING OF FACT
The preponderance of the most probative evidence of record is against a finding that the Veteran’s bilateral ankle disability, best characterized degenerative joint disease of each ankle, was demonstrated in service, manifest to a compensable degree within the applicable presumptive period following service, manifest continuity of symptomatology since service, or is otherwise etiologically related to an in-service injury, event, or disease.
CONCLUSION OF LAW
The criteria for service connection for bilateral ankle disability are not met.  38 U.S.C. §§ 1101, 1131, 1112, 1113, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a) (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from August 1981 to August 1985.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
Since the most recent June 2015 statement of the case, issued for the appeal herein, additional evidence in the form of a December 2016 private medical record addressing the Veteran’s ankle was submitted by the Veteran.  The record does not reflect the Veteran submitted a waiver of review by the Agency of Original Jurisdiction (AOJ) for this evidence.  See 38 C.F.R. § 20.1304 (c) (2017).  However, if new evidence is submitted by the Veteran with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration.  See VBA Fast Letter 14-02.  Here, the Veteran’s substantive appeal was filed after February 2, 2013, and as the evidence was submitted by the Veteran and AOJ consideration was not requested, a remand for the additional evidence to be considered by the AOJ is not warranted.  
Service Connection
Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017).  To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 
1. Entitlement to service connection for bilateral ankle disability
The Veteran asserts that he has bilateral ankle disability related to his military service.  In his July 2014 notice of disagreement and August 2015 substantive appeal, he linked his bilateral ankle disability to in-service injury, specifically that he broke both ankles during service. 
Certain chronic diseases, including arthritis, will be presumed related to service if they were noted as chronic in service or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause.  38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 
The question for the Board is whether the Veteran has chronic right and/or left ankle disability that manifested to a compensable degree in service or within the applicable presumptive period, whether continuity of symptomatology has existed since service, or whether it is otherwise related to service. 
While the Veteran has bilateral ankle disability, diagnosed as degenerative joint disease of each ankle, as endorsed by a June 2014 ankle conditions disability benefits questionnaire examiner, other diagnoses are of record.  Specifically, such includes, although not proximate to the Veteran’s current claim received by VA in May 2013, a May 2011 private medical record which noted, in part, swelling of the medial side of the right ankle, a June 2011 private MRI which stated findings were consistent with a synovitis of the flexor hallucis longus tendon and arthritic changes in the talonavicular joint, and an August 2011 private medical record which documented, in part, joint instability of the right ankle.  See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2014).  Additionally, during the pendency of the claim, a December 2016 private medical record reported, in part, the ankle x-ray showed soft tissue swelling and also some findings related to old prior sprains of the medial/inside ankle.  Thus, the Veteran is acknowledged to have bilateral ankle disability, best characterized as degenerative joint disease of both ankles, as characterized by the June 2014 examiner.
While the Veteran has bilateral ankle disability, best characterized as degenerative joint disease of both ankles, which is a chronic disease under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), it was not shown to be chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established.  In this regard, the Veteran’s May 1985 examination, provided in conjunction with his separation from active service, did not note any defect or diagnosis with respect to either ankle.  Further, the Veteran’s November 1990 examination, conducted in conjunction with his enlistment to the Air Force Reserve, did not note any defect or diagnosis with respect to either ankle.  
Additionally, a May 2011 private medical record documented, in part, swelling of the right ankle for two months, and an August 2011 private medical documented, in part, the Veteran was being seen for right ankle pain, reported the problem had been bothering him for six months, and reported the pain had started as a gradual onset.  Thus, the evidence of record demonstrates that after separation from service, the first evidence of a right ankle complaint was in 2011, and with regard to his left ankle, the first evidence of a complaint was the Veteran’s claim filed in May 2013, which was over two decades after separation from service as to either ankle.  The prolonged period from separation from service without complaints and/or treatment for the disability at issue is evidence for consideration in determining continuity of symptomatology and weighs against a claim herein.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991).  Further, private medical records dated in December 2007 and February 2009 noted Veteran’s extremities had no cyanosis, clubbing, or edema, and did not indicate a diagnosis of bilateral ankle disability or complaints thereof.  See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist).  
Further, the Board gives significant probative weight to competent medical evidence, specifically, the June 2014 VA examiner’s opinion, which stated, in part, there was no evidence of a chronic or on-going medical condition associated with and/or aggravated by the Veteran’s military service.  In support of such, the June 2014 VA examiner noted, in part, there were no abnormal findings on the Veteran’s exit physical examination and bilateral ankle conditions were denied on the Veteran’s entrance physical examination for the Air Force Reserve dated on November 15, 1990, and a search of available records showed no evidence of follow-up care after leaving military.  
The Board must also consider entitlement to service connection for bilateral ankle degenerative joint disease on a nonpresumptive direct-incurrence basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s bilateral ankle degenerative joint disease and an in-service injury, event or disease.  38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).  
The June 2014 VA examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness.  In support of such, the June 2014 VA examiner noted that while the Veteran was seen for this complaint on active duty, it was neither mentioned on his entrance physical nor on his exit physical history, nor were there any abnormal findings on his exit physical examination.  The June 2014 VA examiner further found that bilateral ankle conditions were denied on the Veteran’s entrance physical examination for the Air Force Reserve dated on November 15, 1990 and search of available records showed no evidence of follow-up care after leaving military.  The June 2014 VA examiner found there was no evidence of a chronic or on-going medical condition associated with and/or aggravated by Veteran’s military service.  The June 2014 examiner’s opinion was predicated on a full overview of the entire relevant record and was presented by an examiner who was specifically tasked to present a nexus opinion after review of the evidence.  The June 2014 examiner explained the reasons for his conclusions based on review of the record, to include Veteran’s in-service injuries.  Thus, this opinion is entitled to substantial probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).
In this regard, the Board recognizes that the Veteran, in a July 2014 notice of disagreement and August 2015 substantive appeal, indicated dissatisfaction with the June 2014 examination.  Specifically, he reported that the June 2014 VA examiner had his files confused with someone else, did not know what branch of service the Veteran had served in, did not know the Veteran had broken both ankles during service, and did not mention that the Veteran’s health records from his private doctor and a specialist were obtained.  He further stated that he was not told to bring his brace to the examination.  However, the June 2014 VA examiner specifically reported the Veteran’s claims file was reviewed, which includes his service records and private medical records.  Further, the Board is entitled to presume the competency of VA examiners and specific challenges to a VA examiner’s competency must be raised by the Veteran to overcome this presumption.  The Board does not find that the presumption of competency of a VA medical expert has been rebutted.  See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009).
While the Veteran believes his bilateral ankle disability is related to in-service injuries, he has not been shown to have the requisite medical knowledge or expertise to be deemed competent to provide a nexus opinion in this case.  This issue is medically complex, as it requires specialized medical education.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the competent medical evidence negative nexus opinion.  
Thus, based on the reasons and bases discussed, the Board has considered the benefit of the doubt doctrine, but does not find that the evidence is of such 
 
approximate balance as to warrant its application.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, as the preponderance of the evidence is against the claim, the appeal is denied.  
 
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Espinoza, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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