Citation Nr: 0809649 Decision Date: 03/21/08 Archive Date: 04/03/08 DOCKET NO. 03-12 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for arthritis of the left ankle. REPRESENTATION Appellant represented by: Maine Veterans' Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The appellant is a veteran who had active service from November 1976 to September 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. A videoconference hearing before the undersigned Acting Veterans Law Judge was held in August 2004. A transcript of this hearing is of record. This case was before the Board in February 2006 and April 2007 when it was remanded for additional development. FINDING OF FACT Arthritis of the veteran's left ankle was not manifested in service or in the first post-service year, and any current arthritis of the left ankle is not shown to be etiologically related to the veteran's service. CONCLUSION OF LAW Service connection for arthritis of the left ankle is not warranted. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi,16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the claim decided herein, the veteran has been advised of VA's duties to notify and assist in the development of his claim. April 2002, March 2003 and February 2006 letters from the RO explained what the evidence needed to show to substantiate the claim, the evidence VA was responsible for providing, and the evidence the veteran was responsible for providing. The February 2006 letter (at page 2) also specifically advised the veteran to submit any pertinent evidence in his possession. While complete VCAA notice was not given prior to the rating on appeal, the veteran had ample opportunity to respond to the notice letter, and to supplement the record after notice was given. An October 2006 supplemental statement of the case (SSOC) also specifically advised the veteran of the criteria for rating disabilities and those governing effective dates of awards. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006)). The claim was re-adjudicated after all essential notice was given. See September 2007 SSOC. The veteran is not prejudiced in this decision by any technical notice timing or content defect that may have occurred along the way, nor has it been so alleged. Regarding VA's duty to assist, VA has obtained all pertinent/identified records that could be obtained, and all evidence constructively of record has been secured. (The Board notes that the veteran has indicated that he received some treatment from Dr. C.P., a private physician. Although complete records of such treatment have not been obtained, by letter dated in February 2006, the RO requested that the veteran submit an "Authorization for Release of Information" for any private records that he wished VA to obtain for him; the veteran failed to respond to this request. The Court has held that, "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).) The veteran has been examined by VA and was afforded the opportunity to give testimony before the Board. Development is complete to the extent possible. VA's duties to notify and assist are met. II. Service Connection for Arthritis of the Left Ankle Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303(a). Certain chronic diseases, such as arthritis, when manifest to a compensable degree within a prescribed period after service (one year for arthritis) shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309. Notwithstanding such presumption, service connection also may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 competent (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; 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. The veteran's service medical records note that he denied any medical history of arthritis at his enlistment physical examination in August 1976. Clinical evaluation of his lower extremities was completely normal. In December 1976, the veteran complained of a swollen left ankle. Objective examination of the left ankle showed tenderness to palpation at the fibia area with edema. X-rays of the left ankle were negative. The impression was left ankle sprain. A July 1979 discharge examination report notes no complaints or findings related to a left ankle disability. Clinical evaluation of the lower extremities was normal. In a statement received from the veteran in July 1998, the veteran claimed entitlement to service connection for rheumatoid arthritis in the left ankle, secondary to an injury sustained during service. He contended that he had been treated while on active service in approximately 1977 for left ankle arthritis. VA and private treatment records dated from 1998 to 2005 note the veteran's ongoing complaints of and treatment for arthritis. For example, on private outpatient treatment in July 1998, the veteran reported that he had experienced pain in various joints, including his ankles, since 1992. At that time, no definite diagnosis was made, but osteoarthritis was identified. Ten days prior to the instant examination, his rheumatoid factor was found to be positive and his uric acid was a little elevated. He began a course of Prednisone. The current assessment was probable rheumatoid arthritis, presently suppressed on steroid therapy. On private outpatient treatment in February 2002, the veteran complained of left ankle pain. He reported being diagnosed with rheumatoid arthritis "over three years ago." He also reported that his stiffness had worsened in the prior six to eight months. He also noticed left ankle swelling. Objective examination of the left ankle showed a small amount of effusion around the medial malleolus, which was non- erythematous but tender to palpation. The left ankle joint was painful on inversion. The assessment included rheumatoid arthritis. On VA examination in July 2002, the VA examiner stated that the issue was whether it was at least as likely as not that the veteran's current left ankle condition had its onset during active service. The VA examiner reviewed the veteran's claims file, including his service medical records, noting the veteran's in-service left ankle sprain. The VA examiner also noted that, since service separation, the veteran had complained of "generalized joint aches and pains which have been diagnosed as rheumatoid arthritis and/or osteoarthritis." The VA examiner concluded that there was no association between residuals of a mild ankle sprain that eventually developed in to generalized osteoarthritis or rheumatoid arthritis and he was unable to associate the veteran's present ankle joint complaints with the minor in- service incident. In a January 2003 opinion, Dr. C.P. stated that she had treated the veteran since 2002 for arthritis of the hands, ankles, hips and knees. She noted that the veteran had left ankle pain, swelling on the medial aspect of the left ankle, and decreased range of motion "especially in regards to inversion." The veteran reported "spraining his left ankle severely during boot camp. The resultant arthritis may be as a result of this injury." In an undated treatment note, submitted to VA in January 2007 by the veteran's private physician, Dr. H.E.C. stated that the veteran reported experiencing a "severe" left ankle sprain during active service. Physical examination of the left ankle showed tenderness across the sinus tarsi on the left foot with pes plantar valgus deformity, inflammation of the posterior tibial tendon, inversion against resistance was sore, increased temperature to the posterior tibial tendon as it coursed around the medial malleolus. "It is very possible that he sprained it in [active] service and it has been aggravated since then." The veteran currently had a posterior tibial dysfunction with posterior tibial tendonitis and sinus tarsitis. "The sinus tarsitis and tenderness in the region of the [anterior talofibular] ligament could be related to previous sprain." Dr. H.E.C. also stated that "previous x-rays confirmed substantial sub-talar arthritis in the left ankle. This would be consistent with previous ankle trauma." A review of the veteran's Social Security Administration (SSA) records shows that he was awarded SSA disability benefits in April 1996 for obsessive compulsive disorder. These records do not show any post-service treatment for left ankle arthritis. The Board finds that the preponderance of the evidence is against the veteran's claim of service connection for arthritis of the left ankle. The veteran's service medical records show only that he sustained a left ankle sprain during active service which was resolved by his separation physical examination when no clinical findings of ankle problems were noted. The veteran also was not treated for left ankle arthritis until at least 1998, nearly 20 years post service, so the chronic disease presumptions for arthritis of the left ankle do not apply. The Board observes that Dr. C.P. opined in January 2003 that the veteran's left ankle swelling may be related to an in- service injury. Dr. H.E.C. also opined in an undated treatment note submitted in January 2007 that it was "very possible" that the veteran suffered a left ankle sprain in active service and had aggravated this in-service injury since that time. Dr. H.E.C. also stated that the veteran's left ankle X-rays were consistent with prior ankle trauma. However, it appears that Dr. C.P. and Dr. H.E.C. based their opinions solely on the history provided by the veteran which is not totally supported by the record. For example, the veteran experiencing a severe left ankle injury during active service; as noted, however, the veteran's service medical records show only that he experienced a left ankle injury during active service which was resolved at his separation physical examination. Thus, it is clear that the opinions of Dr. C.P. and Dr. H.E.C. are merely a recitation of the veteran's own contention; there is no indication that these examiners were rendering a medical opinion as to the date of onset based on the clinical or objective evidence. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Moreover, the Court has held that medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). There is no indication that either Dr. C.P. or Dr. H.E.C. had the opportunity to review the veteran's claims file. Conversely, the July 2002 VA medical opinion is clearly against the veteran's claim. The VA physician opined that the veteran's current left ankle arthritis was not related to his military service, to include the left ankle sprain sustained therein. The Board finds this opinion to be persuasive because it is based on a review of the veteran's pertinent history and his claims file, including his service medical records and VA clinical records. Furthermore, the VA physician specified reasons for this conclusion, as noted above. Finally, the Board has also considered the veteran's statements to the effect that his current left ankle arthritis is related to an injury sustained during his military service. However, as a layperson, he is not qualified to render a medical diagnosis or an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). As the preponderance of the evidence is against the veteran's claim, the benefit-of- the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Service connection for arthritis of the left ankle is denied. ____________________________________________ K. R. FLETCHER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs