Citation Nr: 0811122 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-03 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for residuals of a right foot stress fracture. 2. Entitlement to service connection for residuals of a left foot stress fracture. 3. Entitlement to service connection for right ankle arthralgia. 4. Entitlement to service connection for left ankle arthralgia. 5. Entitlement to service connection for a psychiatric disorder, described as an adjustment disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The appellant had service from August 2003 to January 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In July 2007, the appellant presented testimony at a Travel Board hearing conducted by the undersigned. A transcript is in the file. The appellant has raised the issue of entitlement to increased ratings for left and right knee disorders. These issues are not currently developed or certified for appellate review. Accordingly, they are referred to the RO for appropriate consideration. FINDINGS OF FACT 1. The appellant's complaints of residuals of a right foot stress fracture are not supported by any probative findings of a current disability. 2. The appellant's complaints of residuals of a left foot stress fracture are not supported by any probative findings of a current disability. 3. The appellant's complaints of right ankle arthralgia are not supported by any probative findings of a current disability. 4. The appellant's complaints of left ankle arthralgia are not supported by any probative findings of a current disability. 5. A chronic psychiatric disorder was not demonstrated while on active duty, and a psychosis was not compensably disabling within one year of separation from active duty. CONCLUSIONS OF LAW 1. A chronic right foot disorder, described as residuals of a right foot stress fracture, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2007). 2. A chronic left foot disorder, described as residuals of a left foot stress fracture, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. 3. A chronic right ankle disorder, described as right ankle arthralgia, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. 4. A chronic left ankle disorder, described as left ankle arthralgia, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. 5. A chronic psychiatric disorder was not incurred in or aggravated by service, and a psychosis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in April 2004 and March 2006 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. VA informed the claimant of the need to submit all pertinent evidence in her possession. While notice was not provided explaining how a disability rating and an effective date are assigned any questions regarding that matter are moot in light of the decision reached below. While the appellant may not have received full notice prior to the initial decision, after pertinent notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claims, and the claims were readjudicated. The claimant was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Certain chronic disabilities, such as a psychosis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the appellant had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2007). To establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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. Hickson v. West, 12 Vet. App. 247, 253 (1999). It is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet. App. 429 (1995). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 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. Analysis I. Service connection for residuals of right and left foot stress fractures; right and left ankle arthralgia. The claimant claims entitlement to service connection for residuals of stress fractures of the feet, and for bilateral ankle arthralgia. In statements and testimony she reports developing bilateral stress fractures of the feet and bilateral ankle pain as a result of prolonged walking and running in service. Specifically, she indicated that she cannot run or walk at a fast pace because of the pain. The service medical records include a May 2003 pre-enlistment examination which noted mild asymptomatic pes planus bilaterally. Shortly after induction the claimant began complaining of leg and foot, pain and she was assigned to a medical hold area. The preliminary report noted mild shin splints and stress of the feet and ankles. By August 2003, the stress fractures were described as resolved. In September 2003, however, a whole body scan revealed mild shin splints with stress changes of the feet, right greater than left. In October 2003, the appellant was diagnosed with shin splints. Notes from a December 2003 separation examination revealed that the claimant was being administratively separated. She had been seen for bilateral foot and ankle pain with extended walking. Examination revealed no objective evidence of pain, swelling or discoloration. There was no locking or giving out of the ankles. No injury to the ankles or knees was shown. A pertinent diagnosis was not offered. At a May 2004 VA examination the appellant reported developing foot pain in service associated with prolonged walking, running, and tight shoes. A bone scan at Keesler Air Force Base in October 2003 revealed indications of mild stress fractures. She also reported ankle pain but without a history of trauma, sprains, or any giving out of the ankles. She currently avoided pain in her feet by wearing loose shoes and avoiding heels. The ankles were asymptomatic at time of examination. Examination revealed a normal gait with no swelling, masses, deformity, or heat. The joints were not tender to palpation. There was full range of ankle motion with no crepitus. The feet and ankles were bilaterally non tender with no pain. X- rays of the feet and ankles revealed normal bony mineralization with no acute fractures or subluxation. There was no significant degenerative changes and soft tissue was normal. The diagnoses was a history of bilateral stress fractures of the feet and bilateral ankle arthralgia. In this case, while an October 2003 bone scan revealed evidence of stress changes of the feet, by separation from active duty and by the time of her May 2004 VA examination, only a history of stress fractures was diagnosed. Hence, while the appellant was diagnosed with stress fractures in- service, by separation and again in May 2004, she no longer was diagnosed with a disability, and no competent medical evidence has been submitted to show a post service continuity of symptomatology. The United States Court of Appeals for Veterans Claims has held that a condition or injury occurred in service alone is not enough; there must be a current disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Chelte v. Brown, 10 Vet. App. 268, 271 (1997). In the absence of proof of a present disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Likewise, the medical records do not show any probative findings of any current disability due to a bilateral ankle arthralgia. The May 2004 VA examination report revealed no objective evidence of deformity, constitutional symptoms of bone disease, or tenderness of either ankle. While there is evidence that the veteran has undergone postservice Achilles tendon repairs, there is no medical opinion evidence linking these disorders to service. The appellant's testimony regarding her symptoms of ankle and foot pain is competent. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The medical evidence does not, however, support a finding of current disability due to either stress fractures or arthralgia. Pain alone, without a diagnosed or identifiable underlying condition does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). While the Board has considered the appellant's lay assertions, they do not outweigh the most probative medical evidence of record, which shows that there is no present diagnosis of bilateral stress fractures of the feet or any evidence of arthralgia of the ankles. In sum, service connection for residuals of stress fractures of the feet, and for bilateral arthralgia of the ankles is denied. In making these decisions the Board has considered the benefit of the doubt doctrine; however, as the evidence is not equally-balanced in this regard, it does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Service connection for a psychiatric disorder, described as an adjustment disorder. The service medical records reveal that on November 13, 2003, the claimant self reported herself to the emergency room complaining of interpersonal problems with her roommate as well as with personal relationships. She had crying spells and felt pressured, angry, and had a loss of energy and appetite. The diagnosis was relationship problems, not otherwise specified. She was told to return to the clinic if needed. A follow up appointment on November 21, 2003, noted the appellant had an anxiety attack and was distressed in school and was afraid of failing out. She was scheduled for stress management group therapy as well as individual therapy sessions. At a November 24, 2003, stress management group session the claimant's mental status was considered to be within normal limits. She was diagnosed with phase of life problems. A November 26, 2003, clinical appointment noted she was facing separation from service. The diagnosis was occupational and relationship problems A December 2003 separation examination noted the claimant's physical complaints and the examiner opined that he suspected that her symptoms, "should resolve after out of training environment." At a May 2004 VA mental disorders examination the examiner noted that he had reviewed the service medical records. He noted the appellant had been given an entry level separation and diagnosed with occupational and relational problems. She reported crying, being unhappy, and worrying since she had begun military training. She complained of malnutrition in- service, and stated that constant screaming affected her "badly." She could not cope and was separated. Since separation she reportedly has not done well, but was not receiving any treatment. Following a mental status examination the appellant was diagnosed with a "non-service connected" (sic) adjustment disorder with anxiety and depressive mood; and rule out personality disorder, not otherwise specified with self defeating personality traits. The examiner noted that the claimant had a difficult time in service. She was seen in mental health and diagnosed with occupational and relationship problems as well as phase of life problems. During her interview she appeared to exaggerate her in-service symptoms and conditions. The examiner opined that it was possible she might have an adjustment disorder with anxiety and depressed mood based on where she was in life. This diagnosis, however, was not related to service but based on her current situation. She also appeared to have a self defeating personality trait which further impacted her negativity on life. He opined that, I do not believe that the veteran has any lingering psychological problems from her service, basically her service time was too brief and too short and she could not cope and was released from it. The complaints that she has, like having only two minute to eat and being constantly screamed at and a lack of sleep seems to be more of an exaggeration on her part. The medical records do not show any current treatment for any psychiatric disorders. Further, the record is devoid of any competent medical opinion which relates a currently diagnosed psychiatric disorder to service or to any event therein. The VA psychiatric examiner in May 2004 had access to the appellant's service medical records. After reviewing the service medical records and a VA examination it was opined that her adjustment disorder was not related to service. Without competent evidence of a chronic psychiatric disability in service, and without evidence of a nexus between any current psychiatric disability and service, service connection for such disability is not warranted. Regarding the appellant's assertions that her adjustment disorder was related to service such assertions are not competent evidence because she is not shown to have the requisite training and expertise to offer a medical opinion. Espiritu. As such, the benefit sought on appeal is denied. ORDER Entitlement to service connection for residuals of right and left foot stress fractures is denied. Entitlement to service connection for right and left ankle arthralgia is denied. Entitlement to service connection for an adjustment disorder is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs