Citation Nr: 0809911 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 04-41 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Lawrence W. Klute, Associate Counsel INTRODUCTION The veteran served on active duty from February 5, 1969 to June 17, 1969. Procedural history This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2003 decision by the Department of Veterans Affairs (VA) Regional Office in Providence, Rhode Island (the RO). The veteran testified at a Travel Board hearing held in April 2006 at the RO before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the veteran's claims folder. In July 2006, the Board remanded this case for further medical development. A supplemental statement of the case was issued in November 2007 by the VA Appeals Management Center (AMC) which continued the denial of the claims. The case has now been returned to the Board for further consideration of the appeal. The issue of entitlement to service connection for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. The veteran is currently diagnosed with right ankle arthritis. 2. The veteran complained of right heel pain in service; early Achilles tendonitis was diagnosed. 3. A preponderance of the competent medical evidence of record supports the conclusion that there is no connection between the right ankle complaints in service and the veteran's currently diagnosed right ankle arthritis. CONCLUSION OF LAW A right ankle disability was not incurred in or aggravated by military, and such may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to service connection for a right ankle disability. The veteran seeks entitlement to service connection for a right ankle disability. As is discussed elsewhere in this decision, the issue of the veteran's entitlement to service connection for a left knee disability is being remanded for further development. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. Stegall concerns In July 2006, the Board remanded the case to the AMC in order to obtain additional medical evidence. The veteran's claims were then to be readjudicated. The record reveals that the veteran was provided with a VA examination and opinion in August 2006, with a further addendum opinion obtained in September 2007. Copies of the examination report and addendum opinion have been associated with the veteran's claims file. The Board's remand instructions were to provide a VA examination in order to determine the current nature and severity of the veteran's claimed right ankle disability, and to obtain the examiner's opinion as to whether any right ankle disability found is related to any incident of service, including the veteran's in-service complaints of right ankle and heel pain. In this regard, the Board's remand instructions were completed as requested. The claim was readjudicated in the November 2007 supplemental statement of the case. Thus, the Board's remand instructions were complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires 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 VA 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. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. The Board observes that the veteran was informed of the evidentiary requirements for service connection in a letter from the RO dated January 8, 2003, including a request for evidence of "a relationship between your current disability and an injury, disease, or event in military service." Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claim in the above-referenced January 2003 letter, whereby the veteran was advised of the provisions relating to the VCAA. Specifically, the veteran was advised that VA would assist him with obtaining "medical records, employment records, or records from other Federal Agencies." With respect to private treatment records, the letter informed the veteran that VA would attempt to obtain any additional information or evidence he identified and included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the veteran could complete to release private medical records to the VA. This information was repeated in a July 2006 letter to the veteran from the AMC. The January 2003 letter further emphasized: "You must give us enough information about these records so that we can request them from the person or agency who has them. It's still your responsibility to support your claim with appropriate evidence" The Board also notes that a subsequent letter from the RO dated April 29, 2005, specifically requested the veteran to send any medical reports that he had or inform the RO of such information or evidence. The January 2003 VCAA letter instructed the veteran as follows: "tell us about any information or evidence that you want us to try to get for you." In a letter dated in March 2006, the RO informed the veteran: "If you have any information of evidence that you have not previously told us about or given to us, . . . pleas tell us or give us that evidence as soon as possible." These requests comply with the "give us everything you've got" provision contained in 38 C.F.R. § 3.159(b) in that the RO and the AMC informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. Finally, there has been a significant recent Court decision concerning the VCAA. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran was provided specific notice of the Dingess decision in a letter dated March 27, 2006, which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the March 2006 letter instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. In any event, because the veteran's claim of service connection for a right ankle disability is being denied, the matters of degree of disability and effective date are moot. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claim as to the current issue being decided on appeal, that of service connection for a right ankle disability, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the VA has obtained the veteran's VA outpatient medical treatment records, his service medical records and provided him with comprehensive examinations in March 2005 and August 2006. The Board additionally observes that all appropriate due process concerns have been satisfied with regard to the issue of service connection for a right ankle disability. See 38 C.F.R. § 3.103 (2007). The veteran has been ably represented by his service organization. He was accorded the opportunity to present evidence and argument in support of his claim. He testified at a Travel Board hearing in April 2006. Accordingly, the Board will proceed to a decision as to this issue. Relevant law and regulations Service connection In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.309(a) (2007). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arthritis, when manifested to a compensable degree within the initial post- service year. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2006). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Continuity of symptomatology The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to show a 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 distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2006). Analysis The veteran's contentions In a January 2003 statement in support of his claim, and in his April 2006 testimony, the veteran contended that his right ankle disability was first manifested in service during basic training in 1969. He stated that, after being furnished a cast and crutches, against the advice of the doctors, he was made by his drill sergeant to continue the same duties as before in basic training, including marching, crawling, jogging double time, push-ups, jumping jacks, bayonet training, and jumping in fox holes. The veteran further contends, in substance, that his in- service right ankle problems progressed to the disability he currently experiences. He indicated that every year or two years he would go to see a doctor for his ankle problems. He attached to his January 2003 statement a list of health care providers who he contends treated him for right ankle problems from 1974 to 1992. The veteran has not, however, been able to secure records of treatment of the right ankle prior to 1992. Discussion In the interest of clarity, a Hickson analysis will be employed. With respect to the Hickson element (1), current disability, a VA x-ray study done in March 2005 showed the veteran's right ankle to have degenerative disease with subchondral sclerosis and osteophyte formation at the tibia and talus. The examiner diagnosed the veteran with right ankle arthritis. In August 2006, X-rays of the right ankle showed degenerative changes to the ankle joint. Therefore, Hickson element (1) is met. With respect to Hickson element (2), evidence of in-service incurrence or aggravation of a disease or injury, the Board will separately discuss disease and injury. With respect to disease in service, a review of the veteran's service medical records reveals that on March 4, 1969, the veteran was treated for a complaint of right heel pain on walking. The diagnostic impression was that he had early Achilles insertion stress. Between March 5, 1969 and April 3, 1969 the veteran wore a cast on his right foot and was issued crutches. The diagnostic impression was early Achilles tendonitis. There is no evidence that the veteran was diagnosed with arthritis during service [on March 20, 1969, an x-ray was within normal limits] or within one year after service. The first evidence in the record that arthritis was diagnosed is in a report from a private physician, Dr. J.S., dated December 4, 2002, some 33 years after service. The presumptive provisions of 38 C.F.R. § 3.309(a) are therefore not for application. With respect to injury, there is no record of a specific injury to the veteran's right ankle. The veteran testified in April 2006 that his disability was due to marching and other physical activities. Thus, Hickson element (2) has arguably been met to the extent that the veteran was treated for Achilles tendonitis during service. Hickson element (3) requires medical evidence of a nexus between the claimed in-service disease or injury and the current disability. In this case, there is a letter dated in January 2004 from the veteran's private physician, Dr. J.L., who stated that the veteran had been under his care for a number of years for a posterior tibial tendon dysfunction/rupture of the right foot, and that the problem had originally begun as a service related injury in 1969. This is clearly competent medical evidence which is supportive of the veteran's claim. However, a VA examiner in March 2005 and in an April 2005 addendum to her examination report stated that she had reviewed the claims file and opined that the veteran's right ankle arthritis was not at least as likely as not related to his three months of active service in 1969. Another VA examiner in August 2006 also stated that he had reviewed the veteran's claims file and x-rays. In a September 2007 addendum, he opined that the veteran's right ankle condition was not related to or caused by any incidents in his service records; that it was less likely caused or aggravated by any incidents during his service. By law, the Board is obligated under 38 U.S.C.A. § 7104(d) to analyze the credibility and probative value of all medical evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the veteran. See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993), and Colvin v. Derwinski, 1 Vet. App. 171 (1991). Two different VA examiners have opined that the veteran's current right ankle disability is not likely related to the record of in service complaints and treatment of his right ankle. In an April 2005 addendum to her March 2005 examination report, the VA examiner opined that the veteran's right ankle arthritis was not at least as likely as not related to his three months of active service in 1969. In a September 2007 addendum to his August 2006 examination report, another VA examiner opined that the veteran's right ankle condition was less likely caused or aggravated by any incidents during his service. Both VA examiners reviewed the claims file, including the veteran's service medical records. Their negative opinions are based on review of the file and on their objective observations based on their examination of the veteran and the x-rays. By contrast, the favorable opinion by the veteran's private physician, Dr. J.L., was not based on a review of the veteran's claims file and the service medical records, did not contain a medical history, and did not provide details of his objective observations from examination of the veteran. Because of their reliance on physical examination, x-rays of the veteran's right ankle, interview of the veteran, and review of the claims file and service medical records, the Board finds that the opinions of the VA examiners are more probative than the statement/opinion of Dr. J.L. The Board further notes that the two VA opinions appear to be congruent with the veteran's medical history, in particular a large time gap in the medical records extending for many years after service before the veteran was diagnosed with right ankle arthritis. Specifically, there is no evidence of a right ankle disorder in service after April 3, 1969. He was given a medical discharge as of June 17, 1969, but that was due to a right femur disability, not an ankle problem. The earliest post-service medical evidence of a right ankle disability is in a letter from Dr. R.J. dated January 28, 1992, some 23 years after service. A diagnosis of degenerative joint disease is not seen in the record until a report from Dr. J.S. dated December 4, 2002, some 33 years after service. Although the veteran asserts that his difficulties with his right ankle have existed since service and can be attributed to the problem with his right ankle that he experienced in service during 1969, the record does not establish that he has the medical training necessary to offer competent opinions on matters of medical diagnosis or etiology. See, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (a lay person is not competent to offer opinions that require medical knowledge); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The statements offered by the veteran are not competent medical evidence and do not serve to establish medical nexus. The veteran's presentation includes the contention that he has had right ankle problems continually after service. The Board is of course aware of the provisions of 38 C.F.R. § 3.303 pertaining to continuity of symptomatology, discussed above. However, when the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b) (2007); see also Savage v. Gober, 10 Vet. App. 488, 495-496 (1997). In Voerth v. West, 13 Vet. App. 117, 120 (1999), the Court made clear that 38 C.F.R. § 3.303 does not relieve the claimant of his burden of providing a medical nexus. See Voerth, 13 Vet. App. 117, 120-1 [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. In this case, as has been discussed above the record is devoid of contemporaneous, objective medical evidence of right ankle problems for over two decades after service. Although the veteran has indicated that he sought medical treatment for the right ankle prior to 1992, he has not provided supporting medical evidence, or releases to obtain such medical evidence. See 38 U.S.C.A. § 5107(a) (West 2002) [it is a claimant's responsibility to support a claim of entitlement to VA benefits]. Accordingly, continuity of symptomatology after service is not demonstrated. Therefore, Hickson element (3) is not met. The weight of the probative evidence of record is against a grant of service connection for a right ankle disability, and the veteran's claim is denied. ORDER Service connection for a right ankle disability is denied. REMAND 2. Entitlement to service connection for a left knee disability. The Board remanded this issue in July 2006 for a medical nexus opinion. The Board's July 2006 remand included an instruction that the examiner express an opinion as to whether any diagnosed left knee disability is related to any incident of service. In his September 2007 addendum to his August 2006 examination report, the examiner stated that, inasmuch as he was a podiatrist, the examination was limited to the veteran's foot and ankle, not his knee, and that the veteran needed to be examined by a different department for his knee. No subsequent examination was conducted and no medical opinion was rendered. Therefore, the Board's remand instructions relating to the left knee were not complied with, and another remand is needed in order to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. Accordingly, the case is REMANDED to the Veterans Benefits Administration (VBA) for the following action: 1. VBA should arrange for the veteran's VA claims folder to be reviewed by an appropriately qualified physician. The reviewing physician should render an opinion as to whether it is at least as likely as not that the veteran's current left knee disability is related to his military service. If the reviewing physician deems it to be necessary, physical examination and/or diagnostic testing of the veteran may be scheduled. A report should be prepared and associated with the veteran's VA claims folder. 2. After undertaking any additional development deemed to be appropriate, VBA should readjudicate the veteran's claim of entitlement to service connection for a left knee disability. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs