Citation Nr: 0810050 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 00-16 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for residuals of a left ankle strain. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The veteran served on active duty from January 1971 to August 1972, to include service in the Republic of Korea from June 1971 to August 1972. He also served in the United States Army Reserves (USAR), to include various periods of active duty for training and inactive duty training between September 1972 and July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In February 1996, the RO denied service connection for post- traumatic stress disorder (PTSD), which the veteran did not appeal. In May 1999, the veteran notified VA that he wanted to file a claim for service connection for residuals of left ankle sprain and to reopen the claim for service connection for PTSD. The RO denied the claims and the veteran appealed. On appeal, the RO, in June 2003, reopened the claim for service connection for PTSD and subsequently denied the claim on the merits following de novo review. The veteran pursued his appeal of the denials of service connection for PTSD and for left ankle disorder. In November 2003, the Board reopened the claim for service connection for PTSD and remanded the claims to the RO for further development. In February 2002, the veteran presented personal testimony during a hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is of record. The issue of service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issues on appeal was obtained. 2. The evidence of record demonstrates that the veteran's claimed left ankle strain is not a result of any established event, injury, or disease during active service. CONCLUSION OF LAW Residuals of a left ankle strain were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 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 notice from VA 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 her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of a letter sent to the appellant in April 2004 that fully addressed all four notice elements. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the RO. Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of a statement of the case issued in October 2007 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. Because of the decision in this case any deficiency in the initial notice to the veteran of the duty to notify and duty to assist in claims involving a disability rating and an effective date for the award of benefits is harmless error. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. General Law and Regulations-Service Connection Claims Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in 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). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2007). Factual Background In this case, the service treatment records from the veteran's period of active duty in 1971 and 1971 are negative for any signs, symptoms, or complaints of a left ankle strain. The August 1972 separation physical indicated that he had normal lower extremities. While on active duty for training in May 1984, the veteran sprained his left ankle. The ankle was placed in a short leg walking cast for 14 days. Service treatment records show that he was on a medical profile for his left ankle from May 1984 through August 1984. An X-ray from July 1984 revealed no fracture and no evidence of a bony lesion. A service treatment record from April 1985 noted that the veteran's left ankle got sore after a two-mile walk. An X- ray showed no acute fracture or dislocation. The examiner said there was evidence of an old well-healed fracture. In August 1985, a service duty slip indicated that the veteran had gotten a mild grade I ankle sprain while playing volleyball in the line of duty. A VA treatment record from August 1985 indicated that the veteran had a history of ankle pain for the previous year-and-a-half. An ankle X-ray was normal. A nerve conduction study was negative for tarsal tunnel syndrome. The examiner opined that the veteran had intermittent attacks of compression of the dorsal branches to the digital nerves of the toes, which originated in the perineal nerve. It was noted to be related to compression by a combination of edema and shoe pressure. A service medical exam report from January 1992 revealed normal lower extremities. The examiner noted that the veteran was limping due to an injury to his right leg. During his February 2002 RO hearing, the veteran testified that following the left ankle injury in April 1985, his foot was placed in a cast for several weeks. On VA examination in April 2007, the veteran reported increased left ankle pain with walking long distances. He said that his ankle constantly popped. When the weather was cold, his ankle hurt, and the pain would extend up his leg. He said that his left ankle pain rated a 7 on a 0 (low) to 10 (high) pain scale. He occasionally used a cane and was unable to stand for more than 15 to 30 minutes. It was noted that his ankle would give way after walking long distances. He said he experienced severe weekly flare-ups. An X-ray revealed normal soft tissues and no fracture or dislocation. The examiner opined that the veteran had residuals of a left ankle fracture/strain. The examiner stated that it was less likely as not (less than 50/50 probability) that the veteran's current disorder was caused by or was a result of a left ankle injury during active or reserve military service. Analysis Based on the evidence of record, the Board finds that the veteran's claimed left ankle strain is not a result of any established event, injury, or disease during active service. In this matter, the Board finds the VA examination of April 2007 persuasive. The examiner thoroughly interviewed the veteran, reviewed the military and VA records and performed all necessary tests. In stating his report, he referenced the veteran's military personnel records. He provided adequate reasons and bases for his opinion. The April 2007 VA examiner opined that while the veteran currently had a diagnosis of residuals of a left ankle fracture/strain, it was less likely as not that the current symptoms were a result of any event from active or reserve service. Other than the April 2007 VA opinion, there is no competent medical evidence of record which provides a link between any of the veteran's current symptoms and any event that occurred during active service. Without competent medical evidence of a nexus between current symptoms and an active-duty injury, service connection for a left ankle strain cannot be granted. While the veteran may sincerely believe he has a left ankle disability as a result of his active duty service, he is not a licensed medical practitioner and is not competent to offer opinions on questions of medical causation or diagnosis. Grottveit, 5 Vet. App. 91; Espiritu, 2 Vet. App. 492. There is no competent medical evidence of record that indicates the veteran has a left ankle disability as a result of his service. Therefore, the Board finds entitlement to service connection is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. ORDER Entitlement to service connection for residuals of a left ankle strain is denied. REMAND Subsequent to the RO's final adjudication of his claim, the veteran submitted a lay statement from R.C. and two forms completed by doctors in connection with a claim for workers compensation. The veteran has not waived his right for this newly submitted evidence to be reviewed by the agency of original jurisdiction. This evidence must be reviewed by the RO and subjected to adjudication prior to appellate review. Additionally, the Board notes that as the veteran's workers compensation claim involves PTSD, the workers compensation claim records should be obtained and associated with the claims file. The RO must obtain all outstanding pertinent records, following the procedures prescribed in 38 C.F.R. § 3.159 (2007) as regards requesting records from Federal facilities. The United States Court of Appeals for Veterans Claims, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), held that the VCAA notice requirements applied to all elements of a claim. It was further noted that regarding the disability-rating element, in order to comply with section 5103(a), VA must notify the claimant of any information, and any medical or lay evidence, not previously provided, that is necessary to establish a disability rating for each of the disabilities contemplated by the claim and allowed under law and regulation. As the claim for service connection for PTSD is being remanded, the RO should ensure that the notice requirements required by Dingess are fulfilled. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) are fully complied with and satisfied. 2. The AMC/RO should determine if the veteran has been, or is now in receipt of workers compensation benefits. If and only if the veteran has been awarded workers compensation, the RO should obtain a copy of the decision awarding the veteran disability benefits and copies of the records on which the worker's compensation board based the initial award of benefits. Any subsequent disability determinations, as well as the records upon which those determinations were made, should also be requested. 3. If, and only if, (an) alleged stressor(s) is (are) verified, the RO should schedule the veteran for a VA psychiatric examination to determine whether he has PTSD as a result of a verified in-service stressful experience. The veteran's claims folder is to be provided to the VA examining psychiatrist or psychologist for review in conjunction with the examination, and the examination report is to contain a notation that the veteran's file has been reviewed. The mental health examiner must be instructed that only the corroborated in-service stressor(s) may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in the current psychiatric symptoms. If a diagnosis of PTSD is deemed appropriate, the examiner should explain how the diagnostic criteria of the DSM-IV are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment on the link between the current symptomatology and one or more of the in-service established stressors. The typed examination report is to be incorporated with the veteran's claims file. 4. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 5. Thereafter, the RO should consider entitlement to service connection for PTSD, on a de novo basis. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs