ANKLE IMPAIRMENT OF

ROYA BAHRAMI · 2022 · Case ID: 22006692

DENIED

Summary

The Veteran served from May 1972 to January 1975. He appeals the denial of service connection for a left foot/ankle disability, both directly and on a secondary basis to his service-connected right foot/ankle disabilities. The Veteran's claim for direct service connection is based on an alleged in-service crushing injury to his left foot/ankle. For secondary service connection, he contends his left foot/ankle disability is due to a limp caused by his service-connected right foot/ankle conditions. Service treatment records are largely negative for left foot/ankle complaints, with only a 1972 x-ray noting tissue swelling. The Veteran provided inconsistent accounts of an in-service injury, initially denying any left foot injury in 1987, later claiming a crushing injury to both ankles in 1994 and 1995, and then testifying in 2015 that it was his right foot injured in service. The Board found these shifting accounts not credible. Multiple VA examinations were conducted. The September 2017 VA examiner determined the left foot/ankle disabilities were not likely due to an in-service injury and not likely related to the service-connected right foot/ankle conditions, attributing the findings to aging and prolonged weightbearing as a postal worker. The May 2021 VA examiner also found the left foot/ankle disabilities were less likely than not related to service or aggravated by the service-connected right foot/ankle conditions, stating no evidence supported a connection and that one joint's disease does not typically spread to another. The Board found the evidence persuasively against both direct and secondary service connection, denying the claim.

Rationale

No credible evidence of in-service injury to left foot/ankle.; Inconsistent and not credible accounts of injury.; Service treatment records silent for left foot/ankle complaints.; VA medical opinions found no link to service or service-connected right foot/ankle disabilities.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

12-13 317

Full Decision Text

Citation Nr: 22006692
Decision Date: 02/04/22 Archive Date: 02/04/22

DOCKET NO. 12-13 317
DATE: February 4, 2022

ORDER

Entitlement to service connection, to include on a secondary basis, for a left foot/ankle disability is denied.

FINDING OF FACT

The Veteran's left foot/ankle disability did not originate in service or until years thereafter, is not otherwise etiologically related to service, and was not proximately due to or aggravated by a service-connected disability.

CONCLUSION OF LAW

The criteria for entitlement to service connection, to include on a secondary basis, for a left foot/ankle disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1972 to January 1975.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran appeared for a hearing before a Veterans Law Judge (VLJ) in April 2015. The VLJ who conducted the hearing has since retired. The hearing transcript is associated with the claims file. The Veteran was provided notice of the VLJ's retirement in February 2018. The February 2018 notice requested a response within 30 days if the Veteran desired another hearing. The Veteran responded in February 2018 that he did not want to participate in another hearing.

In November 2019, the Board denied service connection for a left foot/ankle disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which, in October 2020, granted a Joint Motion for Remand (JMR). The Court's order vacated the Board's November 2019 decision and remanded the matter to the Board consistent with the terms of the joint motion.

The appeal was last remanded by the Board in May 2021 for additional development. A review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998).

Entitlement to service connection, to include on a secondary basis, for a left foot/ankle disability is denied.

The Veteran contends that his left foot/ankle disability was incurred as a result of a crushing injury during service; or, in the alternative, secondary to a limp caused by his service-connected right foot and ankle disabilities.

Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to a left foot/ankle disability except for an October 1972 x-ray of the left foot that noted the Veteran did not have a fracture but had some tissue swelling.

The Veteran was afforded a hearing before a VLJ with regard to his prior claim in December 1987. During the hearing, the Veteran testified that he had no knowledge of a left foot injury in service. He further stated that he twisted both ankles and feet a few times post-service.

A September 1994 VA treatment record notes that the Veteran reported painful ankles bilaterally and stated that his ankles were crushed onboard a ship. X-rays of the Veteran's ankles revealed no evidence of fracture, dislocation, or bony erosion. The soft tissue was also unremarkable. The Veteran again reported bilateral ankle pain in October 1994 and again stated that it was due to his ankles being crushed during service.

A November 1994 private treatment record notes that the Veteran had no history of medical problems but did take motrin for ankle pain. The record did not indicate whether the left ankle, right ankle, or both ankles were impacted.

The Veteran was afforded a VA examination in April 1995. The Veteran reported that he suffered bilateral ankle injuries in 1973, while serving onboard a ship, when both of his ankles were pinned by a pallet against a safety rail while being picked up by a forklift. The Veteran was on crutches for some time afterward. The VA examiner documented diagnoses of mild degenerative joint disease (DJD) bilaterally by history only with normal examination. Left ankle x-rays were obtained and showed mild degenerative changes about the ankle, without acute fracture, and with small achilles spur.

A September 1998 VA treatment record again documents the Veteran's reports of bilateral ankle pain due to his ankles being crushed in 1974.
afforded a VA examination in April 1995. The Veteran reported that he suffered bilateral ankle injuries in 1973, while serving onboard a ship, when both of his ankles were pinned by a pallet against a safety rail while being picked up by a forklift. The Veteran was on crutches for some time afterward. The VA examiner documented diagnoses of mild degenerative joint disease (DJD) bilaterally by history only with normal examination. Left ankle x-rays were obtained and showed mild degenerative changes about the ankle, without acute fracture, and with small achilles spur.

A September 1998 VA treatment record again documents the Veteran's reports of bilateral ankle pain due to his ankles being crushed in 1974. The record also notes that the Veteran had a pending claim for VA benefits due to his ankle injuries.

Beginning in June 2010, VA treatment records regularly note complaints of bilateral foot and ankle pain. A July 2010 VA treatment record notes that x-rays of the Veteran's ankles were obtained due to the Veteran's reported history of pain. The Veteran's left ankle did not show any evidence of fracture or acute abnormality. The left ankle did show minimal DJD of the tibiotalar joint, tarsonavicular joint, and mild calcaneal spurring. An August 2011 VA treatment record notes that the Veteran reported generalized achy pain that was 6/10 at its worst in both ankles. The record notes that onset was 5 years ago. The Veteran also reported morning stiffness in his feet bilaterally.

Additional private treatment records from 2010 to 2014 document ankle pain but do not indicate whether the left ankle, right ankle, or both ankles experienced pain.

The Veteran was afforded a hearing before a now retired VLJ in April 2015. During the hearing, the Veteran described an in-service injury to his right foot and stated it was the right foot that was injured.

The Veteran was afforded another VA examination in September 2015 for his feet and ankles. With regard to the Veteran's feet, the VA examiner noted diagnoses of bilateral pes planus, DJD, and degenerative arthritis. The VA examiner noted that the Veteran reported constant pain in both of his feet and pain was noted on examination. The Veteran could not recall the onset of his left foot pain. Imaging studies were performed and documented degenerative or traumatic arthritis bilaterally. With regard to the Veteran's ankles, the VA examiner noted diagnoses of DJD and osteoarthritis of the ankles bilaterally. Range of motion of the left ankle was abnormal with dorsiflexion to 20 degrees and plantar flexion limited to 30 degrees. The VA examiner opined that there was no evidence to support aggravation of the left foot/ankle disability due to the Veteran's service-connected right foot/ankle disability without resort to mere speculation. The VA examiner further noted that onset of the left foot/ankle disability was unknown with bilateral foot and ankle pain first reported in 2010.

An April 2017 VA treatment record notes that the Veteran had 7/10 bilateral ankle pain for several years. An August 2017 imaging study noted that the Veteran did not have fracture or dislocation of his ankle, that osseous structures were intact, that soft tissues were unremarkable, but that joint spaces were narrowed.

The Veteran was afforded a VA examination in September 2017. With regard to the Veteran's feet, the VA examiner noted diagnoses of bilateral pes planus and bilateral degenerative arthritis. Imaging studies of the foot showed degenerative or traumatic arthritis. With regard to the Veteran's left ankle, the VA examiner noted a diagnosis of degenerative arthritis. Range of motion of the left ankle was all normal. The Veteran reported that he started having pain "a few years back." The Veteran stated that he believed his condition was due to walking with a right foot limp. He did not report an in-service or post-service injury. The VA examiner noted that post-service, the Veteran worked as a postal worker operating a letter sorter and worked for the postal service for 37 years until he retired. The VA examiner determined that the Veteran's left foot and ankle disabilities were not likely the result of an in-service injury. The Veteran stated during examination that he experienced no injury to the left foot/ankle. The VA examiner was unable to find and review the 1994 report of bilateral crush injury but noted that in April 2015 the Veteran testified it was his right foot that was injured during service. The VA examiner also determined that the Veteran's left foot/ankle condition was not likely a result of the Veteran's service-connected right foot/ankle disabilities. And, that the left foot/ank
as a postal worker operating a letter sorter and worked for the postal service for 37 years until he retired. The VA examiner determined that the Veteran's left foot and ankle disabilities were not likely the result of an in-service injury. The Veteran stated during examination that he experienced no injury to the left foot/ankle. The VA examiner was unable to find and review the 1994 report of bilateral crush injury but noted that in April 2015 the Veteran testified it was his right foot that was injured during service. The VA examiner also determined that the Veteran's left foot/ankle condition was not likely a result of the Veteran's service-connected right foot/ankle disabilities. And, that the left foot/ankle condition was not likely aggravated by the Veteran's service-connected right foot/ankle disabilities. Instead, the VA examiner determined that changes noted to the left foot and ankle was more likely attributable to changes associated with aging and similar to findings in the general population.

The Veteran was afforded another VA examination in October 2017. The Veteran reported chronic left foot pain that started after injury to his foot while on active duty. Imaging studies documented traumatic arthritis bilaterally. With regard to the Veteran's left ankle, the VA examiner noted a diagnosis of degenerative arthritis diagnosed in 1995. Range of motion of the Veteran's left ankle was all normal on examination and the Veteran did not have pain on examination. The VA examiner determined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted that although the Veteran had left foot severe pes planus, left first metatarsophalangeal joint DJD, and left ankle DJD, there was no medical evidence to support that a remote injury to the Veteran's foot and ankle occurred in service or that such injury caused the Veteran's current foot and ankle disabilities. Instead, the VA examiner determined that the Veteran's mild left ankle DJD, left first metatarsophalangeal joint DJD, and left severe pes planus were likely a consequence of the aging process, increased weight, and working as a postal worker for 37 years which required periods of prolonged weightbearing. The VA examiner also determined that the Veteran's left foot and ankle disabilities were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected right foot and ankle disabilities.

An addendum medical opinion was obtained in September 2018. the September 2018 VA examiner stated that he had no formal training in disability law or disability evaluation but that he did have 30 years of experience in medical care of injured limbs. The VA examiner stated that "any connection of a current disability to an injury from 40 years ago would need some documentation at the time of the event to be more than speculation." The VA examiner listed several issues with the Veteran's claim including that there were no x-rays, exam findings or medical documentation of the original injury at the time of the injury or at present, there was no documentation of the current state of the ankle or a presumed link to a prior injury, there was a 1995 report that alluded but did not describe a prior injury, there was no documentation of injury to the left foot/ankle, and there was no clear diagnosis currently. The VA examiner then provided negative direct and secondary nexus opinions but explained that the opinions could not be provided or were in the negative due to speculation or lack of documentation.

The Veteran was afforded another in-person VA examination in May 2021. The VA examiner noted diagnoses of bilateral pes planus and bilateral DJD. The Veteran reported that he sought treatment at VA for right foot and ankle pain in 2015 and was informed he had bilateral pes planus. He reported that he was unaware of a diagnosis until that time. Current symptoms included bilateral foot pain resulting in an inability to bear weight. The VA examiner determined that the Veteran's claimed left foot and ankle disability was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected right foot and ankle conditions. The VA examiner explained that there was no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5 centimeters so that the Veteran's gait pattern was altered to the extent that clinically there was an obvious Trendelenburg gait. The VA examiner determined that this level of severity was not supported based on review of the record and history provided by the Veteran
50 percent probability) proximately due to or the result of the Veteran's service-connected right foot and ankle conditions. The VA examiner explained that there was no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5 centimeters so that the Veteran's gait pattern was altered to the extent that clinically there was an obvious Trendelenburg gait. The VA examiner determined that this level of severity was not supported based on review of the record and history provided by the Veteran. The VA examiner also stated that it was not unusual for two joints to share properties in the same person, but that one joint's disease did not 'spread' to another joint or cause damage to it. The VA examiner also determined that a baseline level of severity could not be determined and that regardless of any established baseline, the Veteran's left foot and ankle disabilities were not at least as likely as not aggravated beyond their natural progression by a service-connected disability. The VA examiner explained that left foot and ankle injury could not be attributed to the Veteran's service-connected right foot and ankle disabilities due to lack of evidence in support. The VA examiner noted that during physical examination the Veteran stood erect and did not lean to one side or place increased weight on the left side. The VA examiner stated that he was "unable to connect the left ankle/foot disability to the right ankle/foot disability."

The Board notes that the Veteran has been diagnosed with several left foot and left ankle disabilities during the period on appeal to include pes planus, DJD, and degenerative arthritis. Accordingly, the Board finds that the Veteran did have current left foot and ankle disabilities during the period on appeal and that the first prong of entitlement to service connection was met. The question for the Board is whether the Veteran's left foot and ankle disabilities are etiologically related to his active duty service or to his service-connected right foot or right ankle disabilities. The Board finds that service connection is not warranted on either a direct or secondary basis.

At the outset, the Board finds that the Veteran did not injure his left foot and ankle in service. The Veteran testified under oath in December 1987 that he did not recall injuring his left foot while on active duty and specifically stated that he had no recollection of injuring his left foot in service even though a left foot x-ray exists in the service treatment records. In September 2011, the Veteran reported his left ankle disability had onset 5 years prior. Again, in April 2015 the Veteran testified that he injured his right foot during service with no mention of an in-service left foot injury. And, during his September 2017 VA examination, the Veteran did not report any in-service injury. While the Veteran changed his story throughout the period on appeal to stating he injured his left foot and/or ankle in service, the Board finds such allegation not credible. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness).

The Board notes that an October 1972 in-service x-ray noted left foot tissue swelling, but no fracture. The service treatment records are otherwise silent for any left foot or ankle complaints, treatment, or injury during service. Accordingly, the Board finds that there is no credible evidence of an in-service injury, event, or illness in support of direct service connection. Even if there was, the Board emphasizes that no VA medical opinion has found that the Veteran's left foot and ankle disabilities are etiologically related to service. The Board finds that the evidence is persuasively against entitlement to service connection for a left foot/ankle disability on a direct basis.

Turning to secondary service connection, the Board also finds that service connection on a secondary basis is not warranted. The Board acknowledges that the Veteran has been awarded service connection for right foot DJD and right ankle DJD and that the Veteran claims that his left foot and ankle disabilities are related to these disabilities. While the Veteran is competent to report when he began experiencing left foot/ankle symptoms, as a layperson lacking in medical training and expertise, he cannot provide a competent opinion on matters as complex as the diagnosis and etiology of his symptoms. As such, his lay assertions regarding a diagnosis and causation of a left foot/ankle disability are of no probative value. Further, even if his opinion regarding the etiology of a current diagnosis of a left foot/ankle disability was afforded some probative value, it is far outweighed by the May 2021 opinion provided by the VA examiner who has greater training and expertise than the Veteran in diagnosing and assessing such a disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To determine the cause of such a condition requires medical training and expertise that the Veteran does not possess. 38 C.F.R. § 3.159 (a)(1), (2) (2018). Accordingly, there is no competent evidence of a link between the Veteran's left foot/ankle disability and his service-connected right foot and ankle disabilities.

In this regard, the Board affords great probative value to the May 2021 VA examiner's report. The May 2021 VA examiner based his opinion on review of the Veteran's records, in-person examination of the Veteran, and review of orthopedic medical literature. The VA examiner determined that there was no evidence to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis or shortening of the injured limb resulting in length discrepancy of more than 5 centimeters so that the Veteran's gait pattern was altered to the extent that clinically there was an obvious Trendelenburg gait. Here, such paralysis, limb length discrepancy, or Trendelenburg gait were not present. The VA examiner also opined that it was not unusual for two joints to share properties in the same person, but that one joint's disease did not 'spread' to another or cause damage to it. The VA examiner also found no evidence of secondary aggravation. The Board emphasizes that no favorable medical opinions, medical literature, or other favorable evidence has been affiliated with the Veteran's claims file to support his contention of entitlement to secondary service connection. Accordingly, the Board finds that the evidence is persuasively against secondary service connection.

The Veteran's claim is denied.

Roya Bahrami

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Palombi, 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.

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