Citation Nr: 0608652 Decision Date: 03/24/06 Archive Date: 04/04/06 DOCKET NO. 99-18 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: K. A. Lieberman, Attorney ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The appellant served in the U.S. Army Reserve, and she had active duty for training from October 5 to October 22, 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In August 2001, the present appeal was denied by the Board; however, the U. S. Court of Appeals for Veterans Claims (Court) vacated that decision and remanded the case to the Board so that it could comply with the Veterans Claims Assistance Act (VCAA) of 2000. In July 2003, the Board remanded this appeal for further development in accordance with the Court's Order. In August 2004, the Board again denied the appeal. In November 2005, the Court granted a joint motion of the parties, vacated the Board's decision, and remanded the matter for action consistent with the joint motion. FINDINGS OF FACT 1. The appellant experienced an acute and transitory episode of left ankle edema in October 1979 which resolved completely without residual disability. 2. Any current disability of the appellant's left ankle is unrelated to service. CONCLUSION OF LAW A left ankle disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 101, 106, 1131 (West 2002); 38 C.F.R. §§ 3.1(d), 3.6, 3.303 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking service connection for a left ankle disorder. The Board will initially discuss certain preliminary matters, and will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 The liberalizing provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2005), are applicable to the appellant's claim. They provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the appellant provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. However, the Court also stated that the failure to provide such notice in connection with adjudications prior to the enactment of the VCAA was not error and that in such cases, the claimant is entitled to "VCAA-content complying notice and proper subsequent VA process." Id. at 120. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, No. 01-1917 (U.S. Vet. App. March 3, 2006) (Hartman, No. 02-1506). In the case at hand, the appellant's claim was received and initially adjudicated before the enactment of the VCAA in November 2000. The notice required by the VCAA and the implementing regulation, to include notice that the appellant should provide any pertinent evidence in her possession, was provided in an August 2003 letter from the RO to the appellant. Even though that letter requested a response within 30 days, it also expressly notified the appellant that she had one year to submit the requested information and/or evidence, in compliance with 38 U.S.C.A. § 5103(b) [evidence must be received by the Secretary within one year from the date notice is sent]. While the August 2003 letter provided adequate notice with respect to the evidence necessary to establish entitlement to service connection, it did not provide notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. See Dingess, supra. However, despite the inadequate notice provided to the appellant on these latter two elements, the Board finds that there is no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). Since service connection is being denied, no disability rating or effective date will be assigned in this case, so there can be no possibility of any prejudice to the appellant in not notifying her of the evidence pertinent to those elements. The Board also notes that the appellant has been afforded a VA examination, and her service medical records and pertinent VA medical records have been obtained. Neither the appellant nor her representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence. Following the provision of the required notice and the completion of all indicated development of the record, the RO readjudicated the claim in April 2004. There is no indication or reason to believe that the ultimate decision of the RO on the merits of the claim would have been different had VCAA notice been provided before the initial adjudication of the claim. The Court's November 2005 remand appears to have been predicated exclusively on the basis of the Board's failure to discuss whether the appellant's claim was prejudiced by the Board's deciding the case on the basis of absence of a current disability. The Joint Motion and the Court Order resulting therefrom identified no other defects in the Board's August 2004 decision, in particular with respect to VA's duty to assist the appellant in the development of her claim. In sum, the Board is satisfied that the RO properly processed the claim following the provision of the required notice and that any procedural errors in its development and consideration of the claim were insignificant and non prejudicial to the appellant. See Bernard, supra. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty or active duty for training. 38 U.S.C.A. §§ 101, 106, 1131 (West 2002); 38 C.F.R. §§ 3.1(d), 3.6, 3.303 (2005). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)]. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Board understands that a remand by the Court is not merely for the purpose of rewriting an opinion so that it will superficially comply with the requirements to provide a comprehensive statement of the reasons or bases for its decision. See Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). The Board's analysis has been undertaken with that directive in mind. The Board further observes, however, that the Joint Motion did not find fault with the Board's treatment of the merits of the appellant's claim. Rather, the Joint Motion found fault in the Board's discussion of whether its adjudication of the issue was prejudicial to the appellant. As will be discussed in detail below, that has now been rectified. The Court has consistently stated that the failure of an appellant to include an issue or argument in the pleadings before it will be deemed as a waiver of that issue or argument. See Bucklinger v. Brown, 5 Vet. App. 435, 436 (1993); see also Tubianosa v. Derwinski, 3 Vet. App. 181, 184 (1992) [stating appellant "should have developed and presented all of his arguments in his initial pleadings"]. The Court also has stated that advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court, and that such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation. See Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992). The Board believes, based on this jurisprudence, that if any other significant problems had been identified in the Board's previous decision by the parties to the Joint Motion, this would have been brought to the Court's, and the Board's, attention. No such problems were identified. In the present case, the evidence establishes that the appellant served on active duty for training for a total of 17 days in October 1979. She was treated for complaints of painful, swollen ankles on October 9, 1979, and was placed on limited duty pending further medical evaluation. Treatment records show notation of bilateral Achilles tendonitis and bursitis. X-ray studies of both ankles taken at the time were interpreted as within normal limits except for soft tissue swelling. An Entrance Physical Standards Board determined that the appellant was incapable of active military training because of chronic edema and pain in both ankles; and she was recommended for discharge from the military as unfit, which was accomplished on October 22, 1979. There is no post-service evidence of complaint or treatment for any ankle disability until after the appellant fell and fractured her right ankle in 1988. She currently has a diagnosis of traumatic arthritis of the right ankle and other postoperative residuals of this postservice injury. However, the appellant has never specifically identified any particular current left ankle disability. She has consistently used terms such as "edema" and "ankle condition" in her communications with VA. Moreover, the most recent VA medical examination of the appellant in March 2004 did not disclose the presence of any current left ankle disability. In fact, all reported findings pertaining to the left ankle on the March 2004 VA examination are normal. A private medical opinion dating from May 2003 refers to both ankles, but makes specific findings and diagnoses only with respect to the right ankle. Medical evidence submitted by the appellant in October 2004, after the Board's August 2004 decision pertains only to the right ankle. With respect to the notations of Achilles tendonitis and bursitis in service, the Board simply notes that these are not currently supported diagnoses based on the post-service medical records. Similarly, although chronic edema was noted in service, as set forth above, this is not determinative of the question of whether a chronic disorder was present in service. In fact, a chronic disorder resulting in edema was not identified during the appellant's brief period of active duty for training. Moreover, there is no post-service medical evidence of this left ankle symptom and it was not present when the appellant was examined by VA in March 2004. It is now well-settled that in order to be considered for service connection, a claimant must have a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists]. Evidence of an injury or disease in service is not sufficient to grant service connection in the absence of a current disability. In view of the absence of any post-service medical evidence of a left ankle disability and the normal findings on the March 2004 VA examination, the Board concludes that the preponderance of the evidence establishes that the appellant has no current disability of the left ankle. In addition, the Board notes that there is no medical opinion of record that purports to relate a current left ankle disability to the appellant's military service. While a May 2003 opinion by C.N.B. refers to in-service evidence that might pertain to either ankle, it does so in a discussion that is clearly focussed on the right ankle. To the extent that C.N.B.'s discussion was intended to address both ankles, his failure to clearly so state renders the opinion inconclusive. A diagnosis or opinion by a health care professional that is not conclusive, is not afforded significant probative weight. Thus, while the Board concedes that there was an injury of the left ankle in service, the two remaining elements necessary for service connection are not met. Significantly, although the appellant and her attorney are well aware that the RO previously denied this claim because of the absence of medical-nexus evidence and the Board previously denied the claim because of the absence of medical evidence of a current disability, neither has submitted or identified medical evidence to satisfy either of these requirements for service connection. The Board must assume that they have failed to do so because they are unable to do so. The preponderance of the evidence currently before the Board is clearly against the claim. With respect to the Joint Motion of the parties, the Board notes that the RO, in its July 1999 decision and subsequent adjudications of this issue, found that the appellant did have a current disability. In the November 2005 Joint Motion, it is stipulated by the parties to this appeal (citing Bernard, supra) that a discussion is in order on the part of the Board as to whether the appellant was prejudiced by the Board's conclusion that there is no current disability in light of the RO's opposite conclusion on that question. As set out above, the Court held in Bernard that when the Board addresses in its decision a question that was not addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. Bernard dealt with a case where the RO had determined that new and material evidence had not been received to reopen a claim, and thus it did not proceed to reopen the claim and address it on the merits. The Board in Bernard found that new and material evidence had been received and proceeded to address the claim on the merits, thus clearly adjudicating a question that had not been addressed by the RO. In this case, the Board has not adjudicated or addressed any question that has not already been addressed by the RO, but simply reached different conclusions with respect to the pertinent questions. Service connection by definition requires that an adjudicator decide three questions, (1) whether there is a current disability, (2) whether there is a disease or injury in service, and (3) whether there is evidence of a relationship between the first two. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F. 3d 1163,1167 (Fed. Cir. 2004). Here, the Board found that there was no current disability of the left ankle; the RO found that there was a current disability, as it concluded "her present ankle condition" did not result from an in-service injury or chronic condition incurred during service. This is a situation quite distinct from Bernard where the RO's negative finding with respect to new and material evidence meant that it did not even address the merits of the claim. Here, the RO simply reached a different conclusion than the Board. In the Board's view, the holding in Bernard is clearly distinguished from the facts in this case. While the Board does not believe that it has in any way violated the Court's holding in Bernard, it must and will comply with the Court's Order in this case, and the provisions of the Joint Motion. Cf. Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) [under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court's prior action with respect to the same claim]. The Board finds that its conclusion that there is no current disability of the left ankle does not result in any prejudice to the appellant despite the RO's contrary conclusion. The appellant was notified specifically in the August 2003 letter that, for service connection to be granted, there must be evidence of a current disability. That letter (at page 5) clearly set out all three elements required for service connection. Further, the letter informed her of the evidence already of record, and of the respective responsibilities of her and VA for obtaining any outstanding evidence. The appellant was afforded the opportunity to identify and submit evidence on the question of a current disability and all other questions related to her claim. She was afforded a VA examination and also afforded the opportunity to present personal testimony. In addition to the above, the Board notes that the July 1999 rating decision, the July 1999 statement of the case, and the April 2000 supplemental statement of the case, in their statements of the law, each included the requirement that there must be evidence of a current disability. While those statements were phrased in the context of a well-groundedness determination, a concept since superseded by the VCAA, subsequent supplemental statements of the case and an August 2001 Board decision have included statements of the law as modified by the VCAA, which have included the requirement that a current disability must be established. Moreover, in this decision, the Board has also determined that the medical-nexus requirement for service connection has not been met. Therefore, even if the Board were to concede that the appellant has a current disability of the left ankle, it would not effect the outcome of the case. The Joint Motion also stipulates that the Board should address why the appellant was not prejudiced by its separate treatment of the right and left ankle claims when the RO adjudicated a bilateral claim. The Board finds that there has been no prejudice in such treatment as the applicable law and evidence necessary to substantiate a bilateral claim is the same as the law and evidence necessary to substantiate a claim for either ankle. The Board's separate treatment of the claims in no way altered its consideration of the evidence, and in no way altered the kinds of evidence necessary to substantiate the claim. Accordingly, the Board finds that the appellant has been given ample notice of the need to submit evidence or argument on the questions at issue, and an opportunity to submit such evidence and argument and to address those questions at a hearing. The Bernard requirements, to the extent that they apply, have been satisfied, and there has been no prejudice to the appellant in the Board's adjudication of this matter on the basis set out above. ORDER Service connection for a left ankle disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs