ANKLE IMPAIRMENT OF

K. A. BANFIELD · 2022 · Case ID: 22060733

MIXED

Summary

The veteran, who served from June 1983 to June 1986, appeals the denial of service connection for obstructive sleep apnea and a low back disability, as well as an increased rating for his right ankle disability. The Board denied the claims for the right ankle and obstructive sleep apnea. For the right ankle, the Board found that the evidence weighed against assigning a compensable rating prior to August 24, 2017, and did not support a rating higher than 10 percent thereafter, citing a lack of moderate or marked limitation of motion despite the veteran's complaints of pain and instability. For obstructive sleep apnea, the Board found the evidence persuasively against service connection, relying on a VA examiner's opinion that the condition was less likely than not related to service, attributing the sleep apnea to post-service weight gain and an undiagnosed osteoma. The Board found the VA examiner's opinion more probative than the veteran's lay statements and private medical records. The claim for a low back disability was also denied, with the Board finding the evidence against service connection due to a single in-service complaint of back pain followed by decades of no medical evidence until post-service incidents, and a VA examiner's opinion that the current condition was less likely than not related to service. The claim for a left ankle disability, secondary to the service-connected right ankle, was remanded due to conflicting medical evidence regarding current disability and the need to reconcile findings and obtain updated treatment records.

Rationale

Evidence weighs against moderate limitation of motion prior to August 24, 2017.; Objective medical evidence is more probative than lay assertions.; Evidence weighs against marked limitation of motion from August 24, 2017.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-31 785

Full Decision Text

Citation Nr: 22060733
Decision Date: 10/28/22 Archive Date: 10/28/22

DOCKET NO. 17-31 785
DATE: October 28, 2022

ORDER

An initial compensable rating for the right ankle disability prior to August 24, 2017, is denied.

An initial rating in excess of 10 percent for the right ankle disability from August 24, 2017, is denied.

Service connection for obstructive sleep apnea is denied.

Service connection for a low back disability is denied.

REMANDED

Entitlement to service connection for a left ankle disability, to include as secondary to the service-connected right ankle disability, is remanded.

FINDINGS OF FACT

1. Prior to August 24, 2017, the Veteran's right ankle exhibited full range of motion.

2. From August 24, 2017, the Veteran's right ankle manifested symptoms that more nearly approximate moderate limitation of motion.

3. The probative evidence is against finding that the diagnosed obstructive sleep apnea began during service or is otherwise related to service.

4. A chronic low back condition was not shown during service or within the year following discharge, and the most probative evidence is against finding that the current lumbosacral strain is related to service.

CONCLUSIONS OF LAW

1. The criteria for an initial compensable rating for the right ankle disability have not been met prior to August 24, 2017. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2021).

2. The criteria for an initial rating in excess of 10 percent for the right ankle disability have not been met from August 24, 2017. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2021).

3. The criteria to establish service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2021).

4. The criteria to establish service connection for a low back disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1983 to June 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In June 2021, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In March 2022, the Board remanded these matters for further development.

Increased Ratings

1. An initial compensable rating for the right ankle disability prior to August 24, 2017

2. An initial rating in excess of 10 percent for the right ankle disability from August 24, 2017

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Although pain may be a
excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Service connection for a right ankle disability was established in the August 2016 rating decision that is the subject of this appeal and assigned a noncompensable rating, effective November 3, 2014, under 38 C.F.R. § 4.71a, Diagnostic Code 5271. A June 2022 rating decision increased the rating to 10 percent, effective August 24, 2017.

During the appeal period, the rating criteria for evaluating the ankle under Diagnostic Code 5271 were revised, effective February 7, 2021. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply for periods from and after the effective date of the regulatory change. 38 U.S.C. § 5110(g); see Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, in this case, the Board will consider the Veteran's claim under both the old and new rating criteria, and the criteria that is more favorable to the Veteran will be applied. When an increase is based solely on the revised criteria, the effective date for the increase cannot be earlier than the effective date of the revised criteria, which in this case is February 7, 2021. See 38 U.S.C. § 5110(g).

Under Diagnostic Code 5271, in effect prior to February 7, 2021, a 10 percent rating was warranted for moderate limitation of motion of the ankle; and a maximum 20 percent rating was warranted for marked limitation of motion of the ankle. Normal range of motions of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. See 38 C.F.R. § 4.71a, Plate II.

Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "moderate" "and "marked." See Sellers v. Wilkie, 30 Vet. App. 157 (2018). The use of terminology such as "moderate" and "marked" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.

According to Merriam Webster dictionary, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate (last accessed October 19, 2022). "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked (last accessed October 19, 2022).

Under the revised Diagnostic Code 5271, effective February 7, 2021, a 10 percent rating is warranted for moderate limitation of motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion); and a maximum 20 percent rating is warranted for marked limitation of motion of
, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate (last accessed October 19, 2022). "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked (last accessed October 19, 2022).

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31.

The Veteran seeks a higher rating for his right ankle disability, asserting in essence that his symptoms are more severe and disabling than reflected in the currently assigned ratings. See June 2021 Board hearing transcript and December 2016, June 2017 and August 2017 statements. Additionally, he testified that he experiences constant right ankle pain, weakness and altered gait; wears compression socks and uses shoe inserts to aid with walking and stability as he trips often and twists his ankle; has no history of surgery; and self-medicates with medicinal creams. During a July 2016 VA examination, the Veteran reported right ankle pain, no history of surgery or hospitalization, and no work limitations in his current occupation as a law enforcement officer. During an April 2022 VA examination, he reported right ankle pain, decreased range of motion, locking and twisting that cause him to fall, and treatment with medicinal cream, over-the-counter pain medication and soaking in warm water.

For the period on appeal prior to August 24, 2017, even considering the Veteran's subjective complaints of pain and other symptoms described in DeLuca, the Board finds that the evidence weighs against assigning an initial compensable rating for the right ankle disability at any point during this period. See DeLuca v. Brown, at 206; 38 C.F.R. §§ 4.40, 4.45. To merit the assignment of the next highest rating (10 percent) under Diagnostic Code 5271, the evidence must more closely approximate moderate limitation of motion of the right ankle. However, in this case, prior to August 24, 2017, the Veteran's right ankle did not manifest moderate limitation of motion. Rather, during the July 2016 VA examination, the right ankle exhibited dorsiflexion to 20 degrees and plantar flexion to 45 degrees, which the Board notes reflects full range of motion. VA and private treatment records do not provide range of motion findings or information that contradicts the VA examiner's findings.

During the July 2016 VA examination, the Veteran was able to perform repetitive use testing with at least three repetitions and did so without additional loss of motion. Further, pain, weakness, fatigability and incoordination did not significantly limit functional ability with repeated use over time, and the Veteran denied flare ups. Also, there was no objective evidence of pain, crepitus, or localized tenderness or pain on palpation of the joint or soft tissue; no reduction in muscle strength; no muscle atrophy, ankylosis (frozen joint), scars or surgical history; and the Veteran ambulated without assistive devices. The examiner indicated the right ankle condition did not functionally impact the Veteran's ability to work. An August 2017 private
examination, the Veteran was able to perform repetitive use testing with at least three repetitions and did so without additional loss of motion. Further, pain, weakness, fatigability and incoordination did not significantly limit functional ability with repeated use over time, and the Veteran denied flare ups. Also, there was no objective evidence of pain, crepitus, or localized tenderness or pain on palpation of the joint or soft tissue; no reduction in muscle strength; no muscle atrophy, ankylosis (frozen joint), scars or surgical history; and the Veteran ambulated without assistive devices. The examiner indicated the right ankle condition did not functionally impact the Veteran's ability to work. An August 2017 private treatment record shows complaints of right ankle pain, worse at the end of the Veteran's workday as he stands and wears heavy boots as a law enforcement officer; and a diagnosis of right ankle joint pain. Examination showed no swelling, effusion, warmth, instability or crepitus; normal muscle strength and gait; and moderate and maximal tenderness at medial below the medial malleolus. While the clinician noted that motion was limited by pain, no specific range of motion findings were noted. Thus, the Board finds that this evidence does not more nearly approximate moderate limitation of motion, and a compensable rating is not warranted based on functional impairment prior to August 24, 2017. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06; see also 38 C.F.R. § 4.31.

The Board has reviewed and considered the Veteran's assertions in support of his claim and in the medical evidence, as discussed above. However, the Board finds the objective medical evidence of record is more probative as to his current level of impairment than the lay assertions.

In sum, the evidence is persuasively against assigning an initial compensable rating for the right ankle disability at any time during the appeal period prior to August 24, 2017, and the claim for a higher rating prior to August 24, 2017, is denied.

Turning to the period of the claim beginning August 24, 2017, even considering the Veteran's subjective complaints of pain and other symptoms described in DeLuca, the Board finds that the evidence weighs against assigning an initial rating in excess of 10 percent at any point during this period. See DeLuca v. Brown, at 206; 38 C.F.R. §§ 4.40, 4.45. To merit the assignment of the next highest rating (20 percent) under Diagnostic Code 5271, the evidence must show marked limitation of motion of the left ankle. However, from August 24, 2017, the Board finds that the Veteran's right ankle disability manifests symptoms that more closely approximate moderate, rather than marked, limitation of motion. The medical evidence shows the Veteran's right ankle exhibited, at worse, dorsiflexion to 15 degrees, which is only 5 degrees worse than normal, and plantar flexion to 20 degrees, which is approximately midway between zero degrees and 45 degrees, and with the same range of motion during both active and passive testing. VA and private treatment records do not provide information that contradicts the examination's findings.

The Board has considered functional impairment and any effects of pain on functional abilities due to the Veteran's right ankle disability. The Board acknowledges the Veteran's subjective complaints in statements in support of his claim and in the medical evidence, including constant pain, decreased range of motion, weakness, altered gait, instability, locking, history of falls, use of compression socks, shoe inserts, medicinal creams and functional loss, described during the April 2022 VA examination as no longer jogging due to his right ankle and fear of falling if the ankle gives out. The Board also acknowledges the objective evidence during the April 2022 VA examination of functional loss and/or functional impairment due to less movement than normal, crepitus, and localized tenderness or pain on palpation of the talus bone, which the Veteran described as sharp and intense at times and rated 9/10. However, in this case, even considering the Veteran's lay reports of symptoms and functional loss, the Board does not find any additional functional loss that is not contemplated by the currently assigned 10 percent rating. See Thompson, 815 F.3d at 785; see also Mitchell, 25 Vet. App. 32. In this regard, the April 2022 VA examiner indicated that decreased range of motion did not contribute to functional loss, and the Veteran denied flare ups. Further, on examination, the Veteran was able to perform repetitive use testing with at least three repetitions and without additional loss of motion;
on palpation of the talus bone, which the Veteran described as sharp and intense at times and rated 9/10. However, in this case, even considering the Veteran's lay reports of symptoms and functional loss, the Board does not find any additional functional loss that is not contemplated by the currently assigned 10 percent rating. See Thompson, 815 F.3d at 785; see also Mitchell, 25 Vet. App. 32. In this regard, the April 2022 VA examiner indicated that decreased range of motion did not contribute to functional loss, and the Veteran denied flare ups. Further, on examination, the Veteran was able to perform repetitive use testing with at least three repetitions and without additional loss of motion; and pain was not evident on weight-bearing, non-weight bearing, active motion or passive motion, or rest/non-movement, and pain did not cause functional loss. Further, there were no additional factors contributing to disability, including weakened movement, less or more movement than normal, or instability of station; and the examiner noted that the Veteran did not have a history of right ankle instability. In addition, muscle strength and joint stability testing were normal; there was no evidence of right ankle muscle atrophy, ankylosis, or surgical history; and the Veteran ambulated without assistive devices. The Veteran reported that his right ankle disability impacted his ability to work in that he was retired and lost zero to one weeks of work time in the previous 12 months.

VA and private treatment records beginning August 24, 2017, reflect symptoms and findings consistent with those noted on the April 2022 VA examination report. For example, a January 2018 private treatment record shows the Veteran reported no musculoskeletal complaints or falls, and examination of the musculoskeletal system showed normal range of motion, no tenderness and equal strength bilaterally. A May 2018 private treatment record indicates that an x-ray of the right ankle showed no evidence of acute fracture or dislocation. Private treatment records in November 2020 and February 2021 show the Veteran reported he exercises five to six times per week. A September 2021 private treatment record shows the Veteran ambulated without difficulty. While the Veteran reported a history of right ankle surgery in service during September 2021 VA treatment, he denied a history of surgery during the Board hearing and during other medical treatment, including the April 2022 VA examination. Finally, while an October 2021 VA treatment record indicates that an x-ray of the right ankle showed degenerative changes, the Board notes that degenerative changes established by x-ray are rated on the basis of limitation of motion under the diagnostic criteria. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Thus, the Board finds that the evidence discussed above more closely approximates moderate, rather than marked, limitation of motion. As such, an initial rating in excess of 10 percent is not warranted based on functional impairment at any time beginning August 24, 2017. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06.

The Board has reviewed and considered the Veteran's assertions in support of his claim and in the medical evidence. However, the Board finds the objective medical evidence of record is more probative as to his current level of impairment than the lay assertions.

In sum, the evidence is persuasively against assigning an initial rating in excess of 10 percent for the right ankle disability from August 24, 2017, and the claim for a higher initial rating from August 24, 2017, is denied. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

In reaching these decisions, the Board has considered other potentially applicable Diagnostic Codes. Diagnostic Codes 5270 (ankylosis of the ankle) and 5272 (ankylosis of the subastragalar or tarsal joint) both contemplate the presence of ankylosis. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5), defining ankylosis as fixation of a joint in a particular position. Given the ranges of motion indicated by the VA examiners, the Board finds that that the Veteran does not have ankylosis
2 (ankylosis of the subastragalar or tarsal joint) both contemplate the presence of ankylosis. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5), defining ankylosis as fixation of a joint in a particular position. Given the ranges of motion indicated by the VA examiners, the Board finds that that the Veteran does not have ankylosis as he exhibits some motion in the right ankle. Further, Diagnostic Code 5273, which pertains to malunion of os calcis or astragalus, and Diagnostic Code 5274, which pertains to astragalectomy, are not for application, as there is no evidence that the Veteran has either of these conditions.

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) 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).

Where a veteran served continuously for 90 days or more during a period of active service or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

3. Service connection for obstructive sleep apnea

The Veteran seeks service connection for obstructive sleep apnea, asserting in essence that his symptoms began during service and have continued since that time. See June 2021 Board hearing transcript and November 2015, December 2016, June 2017, September 2021 and August 2022 statements. In the November 2015 statement, the Veteran asserted that fellow soldiers complained of his snoring during service, which he believes shows that he had sleep apnea at that time, and photographs he saved since service reflect his physical state of exhaustion and lack of sleep while in service. During the June 2021 Board hearing, he testified that he began to snore shortly after entering service and was first told that he snored by a fellow soldier, which worsened during service; he maintained inconsistent sleep patterns during service, including being awakened at all hours of the night due to his military duties; and he complained to medical personnel of not being able to sleep and finally "got around" to seeking medical treatment for sleep apnea about ten years ago. He also stated that he currently uses a CPAP machine, which helps him sleep better, although he still snores. In a June 2021 statement, a fellow soldier asserted that the Veteran began snoring during service. In a June 2021 statement, the Veteran's brother stated that he witnessed the Veteran snore, encouraged him to get evaluated for a sleep disorder, and discussed the Veteran's snoring with his sister, who said she noticed it during service.

The medical evidence shows a diagnosis of moderate obstructive sleep apnea, as reflected on a March 2009 private sleep study report. As a current disability is established, the Board must now determine whether the sleep apnea was incurred in or is otherwise related to service. After reviewing the evidence, the Board finds that the evidence is persuasively against the claim.

The Veteran's service treatment records do not reflect treatment for or diagnosis of a sleeping disorder during service. Although a private clinician stated in a November 2016 letter that a one of the Veteran's service treatment records include a notation of "can't sleep," the Board's careful review of the record does not reveal such referenced notation. Even assuming arguendo that the record reflects a complaint of "can't sleep" during service, the service treatment records do not reflect complaints of snoring, apnea or daytime sleepiness, and the November 2016 private clinician did not indicate or suggest that a singular service treatment record noting "can't sleep" was related to sleep apnea.

The earliest medical evidence of sleep apnea or apneic symptoms is a January 2009 private treatment record showing the Veteran was referred for a sleep study to rule out sleep apnea while undergoing a physical examination to determine medical fitness for a commercial driving license, as his body mass index (BMI) was recorded at 34.82, which exceeded the threshold at which a sleep study was recommended. This treatment record notes that the Veteran's wife complained that the Veteran snored loudly but had not witnessed apnea, and the Veteran denied daytime sleepiness or fatigue.

As the probative evidence does not show sleep apnea during service or for decades thereafter, the Board must determine whether the current obstructive sleep apnea is related to service. On this question, the evidence is persuasively against the claim.

The only opinion of record addressing whether the current sleep apnea is related to service is a July 2022 VA opinion, in which the examiner opined that the Veteran's obstructive sleep apnea was less likely than not incurred in or related to service. She reasoned that the Veteran was diagnosed with moderate obstructive sleep apnea in 2009 and, while the lay reports of fatigue and snoring during active duty can be "red flags" for sleep apnea, they are not diagnostic of sleep apnea, as such requires medical knowledge along with a sleep study. She further reasoned that many sleep studies are performed that diagnose primary snoring without sleep apnea and that sleep apnea is only diagnosed via a sleep study, as it relates to not only pauses in breathing but to the desaturation of oxygen that occurs, and these parameters together determine if an individual has sleep apnea. She reasoned that the evidence shows the Veteran's BMI was 34.7 at the time of the 2009 sleep study and indicates an 84 lb. weight gain from 145 lbs. during service to 229 lbs. in 2009, and that these factors contributed to the development of the Veteran's sleep apnea. She also explained that the Veteran's osteoma (benign bone growth) in the left nostril likely accounted for some obstruction to airflow and hence the Veteran's apnea as well and that the anatomical condition was not discovered until 2019, which was many years after the sleep study, yet the Veteran reported having had this condition for many years.

The Board finds the July 2022 VA opinion probative and entitled to significant weight. The opinion was based on a thorough review of the record and the relevant facts, including service treatment records and post-service treatment records, and is supported by an articulated rationale that is consistent with the evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no medical opinion linking the current obstructive sleep apnea to service.

VA and private treatment records do not indicate an association between the current obstructive sleep apnea and service. Notably, while an October 2015 private treatment record shows that the Veteran requested an opinion from his private provider linking his sleep apnea to service, the private clinician responded that he was unable to state that the Veteran's medical issues were related to service.

While the Veteran and his friend and family are competent to report observable symptoms, such as fatigue and snoring, the Board finds their assertions that the Veteran's sleep apnea arose during service are not persuasive or credible in light of the post-service evidence, which does not document sleep apnea until decades after service, and that the Veteran was not diagnosed with sleep apnea until after he was referred for a sleep study during a routine medical fitness examination based on his BMI, rather than on the Veteran's own initiative based on apneic symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). The Board finds the contemporaneous medical evidence to be significantly more persuasive and credible than statements made to VA for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a Veteran's testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence).

Although the Veteran believes that his sleep apnea began during service or is otherwise related to service, as a lay person, he has not been shown to have the specialized training sufficient to render such an opinion, as the diagnosis and etiology of a sleep disorder are matters that require diagnostic testing and medical expertise to determine. See Jandreau, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Veteran's opinion as to the diagnosis or causation of his current sleep apnea is not competent medical evidence. The Board finds the medical evidence, including the July 2022 VA examiner's opinion, is significantly more probative and persuasive than the lay assertions.

As a final matter, the Board acknowledges that in June 2021, the Veteran submitted a link to an internet podcast discussing obstructive sleep apnea. However, the content of the link was not provided. Moreover, it was not specific to the Veteran's facts or medical history and did not link his sleep apnea to service. Accordingly, it is afforded no probative weight. See Sacks v. West, 11 Vet. App. 314, 317 (1998).

In sum, the evidence is persuasively against finding that the Veteran's obstructive sleep apnea was incurred in or caused by service, and the claim is denied. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

4. Service connection for a low back disability

The Veteran seeks service connection for a low back disability, asserting in essence that he injured his back when he injured his right ankle stepping into a hole during service, reported ongoing pain and discomfort to service medics and has experienced continuous low back pain since service. See June 2021 Board hearing transcript; December 2016, June 2017, August 2017 and August 2022 statements; and July 2016 and April 2022 VA examination reports. In addition, during the April 2022 VA examination, the Veteran reported that he tried to avoid physical confrontation throughout his 29 years as a police officer in order to avoid further back injury and his body experienced wear and tear over the years.

The medical evidence reveals the Veteran is diagnosed with lumbosacral strain, as reflected in a May 2014 private treatment record and April 2022 VA examination report. As a current low back disability is established, the question becomes whether the condition was incurred in or is otherwise related to service. After reviewing the evidence, the Board finds that the most probative evidence is against the claim.

A January 1984 service treatment records show the Veteran reported low back pain for the past 5 days and the clinician indicated low back strain. Examination at that time showed full range of motion without restriction, and the Veteran could touch toes and bend his back with pain when bending to the right. Service treatment records do not reflect any other complaints or findings pertaining to the Veteran's back. Notably, service treatment records show the
reflected in a May 2014 private treatment record and April 2022 VA examination report. As a current low back disability is established, the question becomes whether the condition was incurred in or is otherwise related to service. After reviewing the evidence, the Board finds that the most probative evidence is against the claim.

A January 1984 service treatment records show the Veteran reported low back pain for the past 5 days and the clinician indicated low back strain. Examination at that time showed full range of motion without restriction, and the Veteran could touch toes and bend his back with pain when bending to the right. Service treatment records do not reflect any other complaints or findings pertaining to the Veteran's back. Notably, service treatment records show the Veteran injured his right ankle while stepping into a hole in February 1984, which is one month after his complaint of back pain, and this record does not show any back complaints.

After service, the first medical evidence mentioning the low back is a February 2011 private treatment record showing the Veteran reported neck and upper back pain and stiffness, among other complaints, after being assaulted by an inmate at the correctional facility where he worked. He denied any non-work activities that may have caused or aggravated his injury. Examination of the cervical/thoracic spine showed full range of motion with complaint of tightness and pain. The clinician indicated that no significant abnormalities were identified. Post-service treatment records also reflect other complaints of back pain related to post-service incidents or injuries. A May 2013 private treatment record shows a complaint of low back pain for one day after extricating a deceased patient and doing cardiopulmonary resuscitation (CPR). Examination showed tenderness in the L1-5 area and no asymmetry, spasm or weakness. An August 2013 private treatment record shows the Veteran complained of low back pain that began 4 days earlier after he attempted to sit back in a chair and flipped and fell backwards; he reported feeling pain in his lower back immediately after the fall, had no prior injury or treatment, and the diagnosis was sprain or strain of the lumbar region. A September 2021 private treatment record shows the Veteran reported he was involved in a motor vehicle accident earlier that day and complained of neck pain, low back pain and headache. The diagnosis was neck pain and traumatic head injury.

Thus, except for the singular service treatment record in January 1984 referencing back pain/low back strain, the medical evidence does not reflect complaints or findings related to the low back until 2011, which is decades after service. The Board finds the statements made for purposes of seeking treatment prior to filing a claim for service connection to be significantly more credible and persuasive than statements made to VA for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence).

As such, the evidence weighs against finding a persistent disability was present in service or within the year after discharge, or that the Veteran experienced continuous back symptoms since service. Thus, the Board must now determine whether the current low back strain is linked to service. On this question, the probative evidence is against the claim.

Following the Board's March 2022 remand, a July 2022 VA examiner opined that the Veteran's low back disability was less likely than not incurred in or caused by service. She reasoned that, although the Veteran reported experiencing back pain during and since service, pain is subjective and not diagnostic of a current chronic condition incurred in or related to service; service treatment records do not show chronicity of a back condition or back pain during service; and post-service private treatment records do not show chronicity of a back condition until decades after service. She also reasoned that post-service private treatment records show numerous insults to the Veteran's low back, including a 2011 private treatment record showing the Veteran was assaulted by an inmate and suffered a thoracic back sprain; a 2013 worker's compensation claim for the Veteran's back related to a work incident in which the Veteran flipped over a chair and was diagnosed with a lumbar muscle strain; and a 2021 private treatment record indicating the Veteran was involved in a motor vehicle accident and reported low back pain.

VA and private treatment records do not suggest an association or link between the Veteran's low back strain and service.

The Board finds the July 2022 VA opinion probative and entitled to significant weight. The opinion was based on a thorough review of the record and the relevant facts, including the service treatment records and post-service treatment records which the examiner specifically noted, and is supported by an articulated rationale that is consistent with the evidence. See Nieves-R
3 worker's compensation claim for the Veteran's back related to a work incident in which the Veteran flipped over a chair and was diagnosed with a lumbar muscle strain; and a 2021 private treatment record indicating the Veteran was involved in a motor vehicle accident and reported low back pain.

VA and private treatment records do not suggest an association or link between the Veteran's low back strain and service.

The Board finds the July 2022 VA opinion probative and entitled to significant weight. The opinion was based on a thorough review of the record and the relevant facts, including the service treatment records and post-service treatment records which the examiner specifically noted, and is supported by an articulated rationale that is consistent with the evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Thus, the opinion is probative and persuasive. There is no probative evidence linking the back strain to service.

The Board acknowledges the Veteran's statements and lay statements in support of the claim, including the Veteran's testimony that he went to medical during service and experienced continuous chronic low back pain since service. While the Veteran and friends are competent to report observable symptoms such as back pain, the Board finds their statements are inconsistent with the medical evidence, which shows a singular complaint of back pain during service one month prior to the right ankle injury, and no subsequent notation of back symptoms until 2011 and diagnosis until 2013. See Buchanan v. Nicholson, at 1337 (Fed. Cir. 2006) (the Board can consider bias in lay evidence, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran in weighing credibility). The Board finds the medical evidence significantly more probative and persuasive.

Although the Veteran believes his current lumbosacral strain is related to service, as a lay person, he has not been shown to have the specialized training sufficient to render such an opinion, as the diagnosis and etiology of a musculoskeletal disability are matters not capable of lay observation and require medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Veteran's opinion as to the onset of or cause for his lumbosacral strain is not competent medical evidence.

In sum, the probative evidence is persuasively against finding that the Veteran's lumbosacral strain was incurred in or caused by service, and the claim is denied. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

REASONS FOR REMAND

5. Service connection for a left ankle disability, to include as secondary to the service-connected right ankle disability

The medical evidence contains conflicting findings as to whether the Veteran has a current left ankle disability. Following the Board's March 2022 remand, the Veteran underwent a VA examination in April 2022 and a VA opinion was provided in July 2022, in which the examiner determined that the Veteran did not have a current left ankle disability, or functional impairment of the left ankle. However, an October 17, 2021 VA letter in the claims file indicates that an October 15, 2021 x-ray of the left ankle revealed degenerative changes. Thus, an addendum VA opinion is needed to reconcile the conflicting findings and address whether any current left ankle disability is related to service or caused or aggravated by the service-connected right ankle disability. Further, as a copy of the October 15, 2021 x-ray report does not appear to be associated with the record, it should be obtained on remand. Updated treatment records should also be requested.

The matter is REMANDED for the following action:

1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed left ankle disability. After securing any necessary releases, request any relevant records identified that are not duplicates of those associated with the claims file. Also, obtain and associate with the record an October 15, 2021 VA x-ray report of the left ankle. In addition, obtain updated VA treatment records since April 2022. If any requested records are unavailable, the Veteran should be notified of such.

2. After the above development is completed, obtain a VA addendum opinion addressing the
on remand. Updated treatment records should also be requested.

The matter is REMANDED for the following action:

2. After the above development is completed, obtain a VA addendum opinion addressing the claimed left ankle disability. If a new examination is deemed necessary to respond to the questions presented, one should be scheduled.

After reviewing the claims file, the examiner should respond to the following:

(a.) Does the Veteran have a current left ankle disability? Please explain why or why not. In responding, the examiner is asked to consider and reconcile the October 15, 2021 VA x-ray report indicating left ankle degenerative changes (see October 17, 2021 VA letter). If there is no left ankle diagnosis, the examiner should indicate whether there is functional impairment attributed to the reported left ankle symptoms, including pain, swelling and instability.

(b.) For any diagnosed left ankle disability, or functional impairment due to left ankle symptoms, opine whether it is as likely as not (an approximate balance) that the Veteran's left ankle disability (or functional impairment due to left ankle symptoms) is related to service, to include addressing the Veteran's reports of having his ankles and feet stepped on by a drill sergeant.

(c.) If not related to service, opine whether it is as likely as not (an approximate balance) that the left ankle disability (or functional impairment due to left ankle symptoms) was caused or aggravated beyond its natural progression by the service-connected right ankle disability?

A rationale should be provided for the opinions and conclusions expressed.

3. If the claim remains denied, issue a supplemental statement of the case.

K. A. BANFIELD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. C. Birder

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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