Citation Nr: 0810856 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 06-31 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a right ankle disorder, claimed as secondary to a service-connected right knee disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The veteran served on active duty from July 1947 to August 1947 and from September 1948 to September 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefits sought on appeal. A travel Board hearing was held in September 2007 at the RO in Portland, Oregon, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. FINDINGS OF FACT The service medical records are entirely negative for any complaints, treatment or diagnosis related to the right ankle, arthritis of the right ankle was not diagnosed during the first post-service year, and the record does not contain any competent evidence establishing that a right ankle disorder initially diagnosed years after the veteran's discharge from service, is etiologically related either to service or to a service-connected disability. CONCLUSION OF LAW The veteran's claimed right ankle disorder was not incurred in active military service, to include on a presumptive basis, nor is such disorder secondarily related to any service-connected disability, to include a right knee disability. 38 U.S.C.A. §§ 1110, 1112, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Compliance with the Veterans Claims Assistance Act of 2000 (VCAA) The VCAA was enacted on November 9, 2000. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002). This law emphasized VA's obligation to notify claimants what information or evidence is needed in order to substantiate a claim, and it affirmed VA's duty to assist claimants by making reasonable efforts to get the evidence needed. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In August 2001, VA issued regulations to implement the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). In this instance, notice of the VCAA was provided in November 2003, and July 2005 both before and after the initial adjudication of the claim in September 2004. The requirements with respect to the content of the VCAA notice were met in this case. VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). In this case, the RO informed the veteran in the 2003 and 2005 VCAA letters about the information and evidence that is necessary to substantiate the service connection claim for a right ankle disorder. The claimant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, and he has taken full advantage of these opportunities, submitting evidence and statements in support of his claim. The 2003 VCAA notice letter that was provided to the veteran specifically contained the "fourth element," and the Board finds that the veteran was otherwise fully notified of the need to give to VA any evidence pertaining to his claim. In this regard, the RO has informed the veteran in the rating decision and statement of the case (SOC) of the reasons for the denial of his claim and, in so doing, informed him of the evidence that was needed to substantiate the claim. Further, through his statements, the veteran has demonstrated his understanding of what is necessary to substantiate his claim, i.e., any notice defect was cured by the veteran's actual knowledge. See Sanders v. Nicholson, 487 F.3d. 881 (Fed. Cir. 2007; see also Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). In any event, the Board finds that a reasonable person could be expected to understand from the notice what was needed to substantiate the claim and thus the essential fairness of the adjudication was not frustrated. Id. As such, the Board concludes that, even assuming a notice error, that error was harmless. See Medrano v. Nicholson, 21 Vet. App. 165 (2007); Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). Accordingly, the duty to notify has been fully met in this case and the veteran was made aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. There is no allegation from the claimant that he has any additional evidence in his possession, but not associated with the record, that is needed for a full and fair adjudication of the claim or that he is aware of any other evidence which might be relevant. In fact, in April 2006, the veteran specifically indicated that he had no other information or evidence to give VA to substantiate the claim. However, in 2007, additional evidence was provided for the record accompanied by a waiver. Subsequently, the veteran has not indicated that he has any additional evidence to present or identify in pursuit of his claim. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 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. Id. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. This notice was furnished for the veteran in correspondence from VA dated in March 2006. To whatever extent the recent decision of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, i.e., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision, since the decision herein denies entitlement to compensation. Any questions as to an appropriate disability rating or effective date to be assigned are therefore rendered moot. Accordingly, the Board finds no prejudice to the veteran 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 veteran has been prejudiced thereby). Finally, the duty to assist the appellant has also been satisfied in this case. The veteran's service medical records and private and VA medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with his claim. In addition, he was scheduled for and underwent a VA examination in February 2004. The Board concludes that VA has done everything reasonably possible to assist the veteran in obtaining a complete record on appeal. The veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. Thus, the Board finds that there is no indication that there is additional available evidence to substantiate the veteran's claim that has not been obtained and associated with the claims folder. VA has further assisted the veteran and his representative throughout the course of this appeal by providing them with a SOC, which informed them of the laws and regulations relevant to the veteran's claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. Factual Background Service medical records (SMRs) include a discharge examination dated in August 1947 (during the veteran's first period of service) which shows that the veteran had no muskuloskeltal defects. SMRs from the veteran's second period of service show that the veteran was admitted for hospitalization in early June 1949 for possible torn medial cartilage of the right knee. It appears that the injury was caused when the veteran was wrestling with another soldier and twisted his right knee. While hospitalized in June 1949, X-ray films revealed a bucket handle tear of the right medial meniscus. Arthrotomy with resection of the medial meniscus was performed in June 1949. Ultimately, the veteran was discharged from service due to the right knee disability. The SMRs were entirely negative for complaints, treatment or a diagnosis relating to the right ankle and there is no reference to any right ankle injury. A post-service VA examination report dated in April 1950 indicated that X-ray films of the right knee revealed the presence of mild arthritis. In a May 1950 rating decision, service connection was granted for a right knee disability and a 10 percent evaluation was assigned. A review of VA medical records dated from 1996 to 2001 shows that the veteran was seen in December 1998 with complaints of a several year history of right ankle pain, becoming progressively worse. He gave a history of an industrial accident in which he was driving and forklift and fell off, resulting in injuries to the wrist, shoulder and ankle. X- ray films revealed osteoarthritis of the right ankle. An entry dated in August 1999, indicates that the veteran was seen for orthopedic follow-up in August 1999, at which time the doctor noted that he had previously seen the veteran for osteoarthritis of the right ankle. The record stated that the veteran was using an ankle brace and did not want to pursue surgical options. The veteran was seen by orthopedics in February 2000, for a follow-up post fracture. At that time, limitation of motion was shown and a brace was issued. The veteran was seen with complaints of right ankle pain in November 2000. X-ray films of the right ankle showed some arthritic changes and as assessment of continued degenerative joint disease (DJD) of the right ankle was made. Records dated in October 2001 show that the veteran was seen by ER after falling on his right knee resulting in torn ligaments. An entry dated in November 2001 indicates that the veteran had undergone quadriceps tendon repair in October 2001 and was still in a hinged knee brace on the right side which was locked in extension. The veteran continued to be seen for complaints and treatment related to the right ankle in 2002 and 2003. X-ray films were taken in May 2003, which revealed narrowing of the joint space medially with associated subchondral sclerosis. In October 2003, the veteran filed a service connection claim for a right ankle disorder, stating that his service- connected right knee injury had resulted in falls and consequent injuries to other parts of his body including the right ankle. VA records dated in December 2003 indicate that the veteran was seen with complaints of right ankle pain. A long- standing history of right ankle pain for 30 years, secondary to a twisting injury was noted. Symptoms of swelling for the past 5 years were also documented. Physical examination revealed decreased motion of the right ankle. X-ray films revealed a hindfoot varus deformity and an osteophyte on the anterior surface of the talus. There was no evidence of a fracture involving the talus, tibia or fibula. Assessments of right ankle instability and degenerative joint disease were made. The plan was to have a lateral heel wedge placed as well as a patellar bearing ankle fixation orthotic (AFO). Private medical records from Kaiser reveal that the veteran sustained a left knee injury in March 1992 when he fell getting out of his forklift, stepped on a piece of 4x4 and lost his footing. Arthroscopic surgery of the left knee was performed in June 1992. The Kaiser records also include a December 1992 statement from a doctor specializing in occupational medicine. The doctor indicated that the veteran had a right foot disorder diagnosed as Morton's neuroma and opined that the etiology of this condition was most likely due to the altered mechanic of ambulating due to a left knee disorder. The doctor further explained that the March 1992 left knee injury was the major cause of the right foot condition, adding that it was not believed that the veteran's work activities as a forklift driver was a major contributing cause of the right foot condition. The same doctor provided another opinion in December 1992 stating that the veteran's foot orthotics were related to the left knee injury. In a January 1993 statement, the same doctor explained that the veteran also had suspected Morton's neuroma of the left foot, but could not state to a medical probability that this was related to the left knee injury. In February 1993, the same doctor, after having conferred with several experts, clarified all of the previous medical opinions and opined that the diagnosed Morton's neuroma of the feet was neither related to the veteran's work activities or to his March 1992 left knee injury. A VA examination of the joints was conducted in February 2004. The veteran gave a history of sustaining an industrial accident to the right knee in 1992, and reported that this resulted in secondary injuries affecting areas including the left knee and right ankle. He also gave a history of falling in 2001 rupturing the quadriceps on the right knee. On examination, he did not complain of any instabilities or falls during the last couple of years. He reported that he had retired due to back pain. The veteran indicated that the right ankle did not become symptomatic until the fall of 1992, when he reports that he fell off a forklift due to the right knee. Objective examination of the right ankle revealed limitation of motion, swelling and tenderness without evidence of instability or malalignment. An assessment of degenerative osteoarthritis of the right ankle with Achilles tendonitis was made. After reviewing the evidence, the examiner opined that it was not at least as likely as not that the veteran's service-connected right knee disability resulted in a right ankle injury. The examiner further observed that driving a forklift usually necessitated getting off on the left leg and not the right leg, due to the shifting case on the forklift of most models. VA records show that the veteran underwent revision of the right tibiotalar fusion, due to non-union, in February 2005. Records dated throughout the remainder of 2005 and into early 2006 reflect continued follow up treatment for the right ankle. X-ray films taken in January showed persistent non- union of the fusion site and an impression of failed ankle fusion was made. The veteran presented testimony at a travel Board hearing held in September 2007. At the hearing, the veteran presented a copy of a December 1992 medical opinion indicating that the veteran's foot orthotics were related to his left knee injury (duplicative of evidence previously of record), and a photograph of himself driving a forklift (this evidence was accompanied by a waiver). At the hearing, the veteran and his representative explained that the forklift that the veteran drove was larger than usual, and stated that the veteran put his right foot down which then gave way and caused the accident in March 1992. The parties contended that the VA examiner (2004) made an assumption of facts not in the record and that therefore the VA examination was flawed. The veteran indicated that he had undergone three right ankle surgeries since the 1992 accident. Legal Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is evidence that a chronic disease, including arthritis, manifests to a degree of 10 percent or more within one year of leaving service, such disability shall be granted service connection on a presumptive basis. 38 C.F.R. § 3.307, 3.309 (2007). Service connection may be granted for disability that is proximately due to, the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310(a) (2007); Allen v. Brown, 7 Vet. App. 439 (1995). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, herein, to the extent applicable, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2007). 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 C.F.R. § 3.102 (West 2002). The veteran contends that service connection is warranted for a right ankle disorder, which he primarily contends is attributable/secondary to a service connected right knee disability. As a practical matter, the veteran does not maintain that he sustained any injury to the right ankle during service. In addition, he has not described having any significant or chronic symptomatology of the right ankle during and since service, nor does the evidence reflect this. The SMRs are entirely negative for any reference to a right ankle injury and do not document complaints, treatment or a diagnosis relating to the right ankle. Moreover, there has been no clinical evidence which establishes the presence of arthritis of the right ankle during the first post-service year. Moreover, the record contains no clinical or competent evidence or opinion etiologically linking currently diagnosed arthritis of the right ankle, directly to the veteran's period of service, or any incident therein. Accordingly, service connection under the theory of direct incurrence or on a presumptive basis (in cases where arthritis manifests during the first post-service year) is not warranted. In the alternative, the primary argument is that currently manifested arthritis of the right ankle is secondarily related to a service-connected right knee disability. Clinical records show that the right ankle has been symptomatic since at least 1998 and the veteran maintains that his right ankle problems began in 1992 after the forklift accident. Significantly, medical records dated in 1992 reflect that it was the left knee that was injured in 1992, without indication of right knee involvement in causing that injury, and without any indication of injury to the right ankle at that time. The 1992 records do contain references to Morton's neuroma of the both feet diagnosed in 1992, and it was ultimately was determined by competent medical opinion that this was neither related to the veteran's work activities or to his March 1992 left knee injury. A duplicate medical opinion dated in December 1992 and provided for the record at the September 2007 hearing discusses the relationship between the veteran's foot orthotics and a nonservice-connected left knee injury and hence that opinion is not probative or supportive of the claim on appeal. The requirement of an evidentiary showing of an etiological relationship has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit which has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between the veteran's service (to include a service-connected condition) and the disability claimed. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). When examined by VA in 2004, an assessment of degenerative osteoarthritis of the right ankle with Achilles tendonitis was made. After reviewing the evidence, the examiner opined that it was not at least as likely as not that the veteran's service- connected right knee disability resulted in a right ankle injury. There is no contrary medical evidence or opinion of record nor is there any competent evidence or medical opinion on file etiologically linking the claimed right ankle disorder to falls allegedly caused by the service-connected right knee disability. In rendering the aforementioned medical opinion in 2004, the VA examiner observed that driving a forklift usually necessitated getting off on the left leg and not the right leg, due to the shifting case on the forklift of most models. The parties contended that the VA examiner (2004) made an assumption of facts not in the record and that therefore the VA examination was flawed. Having reviewed the examination report, the Board observes that the VA examiner merely made a general observation and there is no indication that this observation, in and of itself, or in any significant way, provided the basis for the ultimate conclusion reached. Accordingly, the 2004 VA examination is not determined to be "flawed." With respect to the veteran's statements and testimony pertaining to his own belief that an etiological relationship exists between currently manifested arthritis of the right ankle and the service connected disability of the right knee to include falls claimed to be caused by the right knee disability, it is well established that as a layman, the veteran is not qualified to render opinions as to medical diagnoses, etiology or causation. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Given the foregoing, the Board finds that the preponderance of the evidence is against the claim, and service connection for a right ankle disorder under either the basis of direct service incurrence, presumptive incurrence, or based upon a secondary relationship, must be denied. 38 U.S.C.A. §§ 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). ORDER Entitlement to service connection for a right ankle disorder, either on the basis of direct service incurrence or as secondary to service-connected disability, or for arthritis of the right ankle based on a presumption of service incurrence, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs