KNEE IMPAIRMENT OF

ZIHENG ZHU · 2023 · Case ID: 23004570

DENIED

Summary

The Veteran, an Army Veteran who served from June 1972 to October 1985, appeals the denial of service connection for a left ankle disability. This case has been before the Board multiple times, including a remand from the U.S. Court of Appeals for Veterans Claims. The Veteran claims the disability resulted from parachute jumps during service and that he experienced intermittent pain since an alleged fracture in 1980. He also stated he did not report the injury during service due to fear of losing jump status and pay, and to set an example of toughness. The Board found the Veteran's statements not credible. Contemporaneous service treatment records from March 1982 showed negative x-rays for an ankle fracture, and the Veteran denied relevant symptoms at his September 1985 separation examination. His first diagnosis of degenerative joint disease occurred in May 2011, decades after service and outside the presumptive period. The Board found his assertions of an in-service ankle fracture and continuous symptoms since service lacked credibility, noting his failure to report the alleged injury despite reporting other medical issues during service. Multiple VA examiners consistently opined that the current left ankle disability was not related to service, citing the lack of in-service documentation, normal separation examination, and absence of a medical nexus. The Board gave more weight to these VA opinions, finding no competent medical evidence to link the disability to service. Service connection for the left ankle disability was therefore denied.

Rationale

Contemporaneous service records negative for ankle complaints/treatment.; Separation examination normal; no relevant symptoms denied.; First diagnosis decades after service and outside presumptive period.; Veteran's statements regarding in-service injury and continuity of symptoms found not credible.; Multiple VA examiner opinions found no relation to service.; Competent medical evidence weighs against nexus.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

14-31 251

Full Decision Text

Citation Nr: 23004570
Decision Date: 01/25/23 Archive Date: 01/25/23

DOCKET NO. 14-31 251
DATE: January 25, 2023

ORDER

Service connection for a left ankle disability is denied.

FINDING OF FACT

The Veteran's left ankle degenerative joint disease was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease.

CONCLUSION OF LAW

The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the U.S. Army from June 1972 to October 1985.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision. It was previously denied by the Board in an April 2018 decision. The Veteran appealed that denial to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court remanded the matter back to the Board in March 2019 for readjudication. The Board then remanded it for additional development in July 2019 and March 2022.

Service connection for a left ankle disability

The Veteran contends that he incurred a left ankle disability during service, including as a result of parachute jumps in service.

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

The Veteran has a current diagnosis of left ankle degenerative joint disease as evidenced by a June 2022 VA examination. Degenerative joint disease, as a form of arthritis, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331.

However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Service treatment records are negative for any complaints, treatment, or diagnoses related to the left ankle. The Veteran's September 1985 separation examination was normal, and he denied a history of any arthritis, bone/joint deformity, or other relevant symptoms. The Veteran was not diagnosed with any ankle disability until his May 2011 VA examination, decades after his separation from service and decades outside of the applicable presumptive period.

During his June 2022 VA examination, the Veteran reported the onset of his left ankle problem around 1980, when he injured his left foot after a parachute jump. He reported being told that he had a left ankle fracture, and stated that he had experienced intermittent pain since that time.

In an October 2019 statement, the Veteran reported that he did not report his symptoms during service for fear of being taken off jump status and losing significant pay as a result. He also stated that, as a sergeant, he set an example of toughness and refrained from seeking treatment despite having pain.

The Board does not find the Veteran's statements to be credible. First, while the Veteran reported being told he had an ankle fracture, service treatment records from March 1982 show he was seen for left foot pain and evaluated for a possible foot fracture. Additional records from April 1982 show his x-rays were negative, and that his ankle was normal with good range of motion. Indeed, during his initial VA examination in May 2011, he evidenced some uncertainty and reported fracturing his left foot or ankle. As the contemporaneous service records only show an evaluation of a foot fracture, his assertion of a possible ankle fracture in service is not credible.

Second, while the
and refrained from seeking treatment despite having pain.

Second, while the Veteran indicated that he did not report ankle problems in service due to fear of the repercussions and to set an example, his service treatment records show he was seen for a variety of health concerns over a period of several years. He was seen for chest pain in December 1978, a headache in February 1979, diarrhea in May 1979, urethral discharge in July 1979, a sore throat and bruised thumb in January 1980, groin pain in May 1980, an upper eyelid laceration in January 1981, an eye infection in August 1981, a skin rash in April 1982, left side pain in June 1982, pseudofolliculitis barbae in August 1982, a right wrist cyst in October 1984, and low back pain in October. The fact that he reported all of these medical issues during service, without mentioning an ankle problem, strongly suggests that no such problem was present. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present).

The Board may draw inferences against a claimant from a lack of documentation if it lays a proper foundation. Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012); Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). If that inquiry concerns a lack of medical documentation, the Board must discuss whether the condition was of such severity that it would have been reasonable to expect the appellant to seek treatment. Here, given that the Veteran reported left foot issues, as well as minor orthopedic complaints like a bruised them, it is reasonable to expect that he would have reported left ankle problems if any were present.

In addition, while the Veteran contends that he has left ankle symptoms as a result of an injury, VA treatment records from April 2018 show the Veteran reported pain in his left ankle and big toe which he attributed to a flare-up of his gout. This further weakens his assertion of continuous symptoms since service. See McManaway v. West, 13 Vet. App. 60, 66 (1999) (a veteran is not necessarily competent to establish a link between the continuous symptomatology and a current underlying condition); vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001).

For these reasons, the Board does not find the Veteran's statements regarding an in-service ankle injury or continuous ankle symptoms since the injury to be credible.

Service connection for a left ankle disability may still be granted on a direct basis if there is an etiological link between his current disability and parachute jumps in service. However, the competent evidence of record persuasively weighs against finding that such a medical nexus exists. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303.

VA examiners in January 2012, October 2019, and July 2022 all concluded that the Veteran's left ankle disability was not related to service. Collectively, they noted the lack of any documentation an ankle injury due to airborne operations or any chronic ankle problem in service. The Veteran's separation examination was normal, and he denied any relevant symptoms at that time. No radiologic abnormalities were present for decades after service, which would be expected if an ongoing problem was present for more than 20 years. To this end, the October 2019 VA examiner explicitly noted that there was simply no evidence of an actual orthopedic and/or physiological injury incurrent during the Veteran's active service;
.303.

Here, the Board finds these VA examination opinions to be highly probative, as they are based not only a comprehensive evaluation of the Veteran's claimed file, medical history, and examination of the Veteran's current condition, but also the fact that there is no competent medical evidence to refute these conclusions or otherwise link the Veteran's left ankle disability to service. While the Veteran believes his left ankle condition is related to parachute jumps in service, he has not shown the necessary medical knowledge or expertise to provide a competent medical opinion in this case. This issue is medically complex, as it requires specialized knowledge of pathology. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Here, as noted by the various VA examiners, not only is there no evidence of an etiological nexus to service, an inservice injury or incurrence of the left ankle permeant/chronic, may also simply not exist, as any complaints of pain seemed to have resolve prior to separation from service, since such reports upon leaving service provide no evidence of an ongoing disability.

Consequently, the Board gives more probative weight to the competent medical evidence, which weighs against a nexus between the current condition and parachute jumps in service. For these reasons, service connection is not warranted.

Zi-Heng Zhu

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Shamil Patel, 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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