Citation Nr: 0813499 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-15 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to an evaluation in excess of 20 percent for residuals, fracture, little finger, right hand. 2. Entitlement to service connection for a left ankle condition REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran had active duty service from January 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas. In March 2008, the veteran testified at a hearing before the undersigned Veterans Law Judge. FINDINGS OF FACT 1. In March 2008, the veteran notified the Board of his desire to withdraw the appeal of entitlement to an evaluation in excess of 20 percent for residuals, fracture, little finger, right hand. 2. A left ankle condition was first demonstrated many years after service and is not related to active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal, on the issue of entitlement to an increased evaluation for residuals of frostbite, by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). 2. Service connection for a left ankle condition is not warranted. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs 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, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2007). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). In this case, as explained below, VA has strictly complied with the VCAA by providing the veteran adequate notice and assistance with regard to the claims on appeal. Accordingly, the veteran is not prejudiced by the Board's decision to proceed with the disposition of this appeal. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). During the pendency of this appeal, on March 3, 2006, the 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. Dingess/Hartman at 488. 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. A. Duty to Notify In a September 2004 letter, the RO notified the veteran of the evidence required to substantiate a claim for service connection. This letter explained VA's duty to assist with the development of the claim and advised the veteran what evidence VA would be responsible for obtaining and what evidence VA would assist the veteran in obtaining. The veteran was advised to submit any relevant medical records in his possession. This notice complied with the timing requirements set forth in Pelegrini, as it was provided prior to the initial unfavorable rating decision. A March 2006 letter informed the veteran of the evidence necessary to establish a disability rating or effective date in the event of award of the benefit sought. The Board finds that the duty to notify has been satisfied. All the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). B. Duty to Assist The RO made reasonable efforts to assist the veteran with the development of this claim. The record in this case includes service medical records and VA and private treatment records. The veteran has not identified any outstanding records that are pertinent to the development of this claim. It is noted that the RO did not provide a VA examination for this service connection claim and per recent precedent, such a medical examination is not required in order to make a final adjudication. McLendon v. Nicholson, 20 Vet. App. 79 (2006), states, that in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. In this case, because the record does not establish that a left ankle injury occurred in service or may be associated with an in-service injury or event, a VA examination is not necessary. Under these circumstances, the Board finds the requirements of the duty to assist have been satisfied, that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran. II. Analysis of Claim The veteran claims entitlement to service connection for a left ankle condition. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. § 1110 (West 2002). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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) (2006). 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) (2007). Service connection may be presumed for certain diseases, including arthritis, if it is shown that the veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, such disease became manifest to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2007). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d) (2007). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) 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 (1999). In determining whether service connection is warranted for a disability, VA is 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 must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Medical records reflect that the veteran has a current diagnosis of post-traumatic arthritis of the subtalar joint. Thus, the first Hickson requirement that of a current diagnosis, is satisfied. With regard to the second Hickson requirement of evidence of in-service incurrence, service medical records are negative for any treatment or diagnosis of a left ankle condition. The November 1968 separation examination did not note any history of a left ankle injury. The lower extremities were evaluated as clinically normal. In this case, the veteran's testimony and the lay statements submitted by the veteran provide the only evidence of an in- service ankle injury. The veteran contends that he injured his left ankle and his right hand in a fall in 1967 and contends that the service medical records support this contention. The Board notes that the veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Medical evidence of treatment for the left ankle is first shown in 2002, over 30 years after separation from service. X-rays of the left ankle in October 2002 were normal. In a podiatry clinic note of February 2003, it was noted that the veteran reported pain in the left ankle. He reported no history of trauma or injury but remembered jumping into a ravine while in service and twisting his ankle in service. He stated that the pain was not constant but was occasional. On a podiatry consult in August 2004, it was noted that the veteran had had complaint of ankle pain the previous year but that x-rays and CT scans were negative. The medical evidence does not support a finding that the veteran developed an ankle disorder as a result of service. He relates a twisted in ankle in 1967 with no further treatment until 2002. This lengthy period of time without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Given this lack of evidence of treatment for a left ankle condition during service or for many years following service, the Board finds that the veteran's lay statements are not sufficient to establish service incurrence of a left ankle injury. With respect to the last Hickson requirement, that of a medical nexus to service, the record contains one medical opinion regarding the etiology of the veteran's left ankle disability. In a letter dated in November 2006, Dr. M.R.D., M.D., indicated that the veteran has post-traumatic arthritis in the subtalar joint. Dr. M.R.D. opined that the veteran's left ankle condition is more likely than not related to an injury the veteran suffered in the military in 1967. The Board notes that the opinion provided by Dr. M.R.D. is based on the veteran's reported history of in-service injury. The Court has held that a post-service reference to injuries sustained in service, without a review of service medical records, is not competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). The Court has held that reliance on a veteran's statements renders a medical report incredible only if the Board rejects the statements of the veteran. Coburn v. Nicholson, 19 Vet. App. 427 (2006). The Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). In this case, the Board rejects the medical opinion because the veteran's report of an in-service injury is contradicted by the service medical records which do not show any complaints, treatment or diagnoses of a left ankle condition and the postservice medical records which do not indicate the presence of an ankle disability in the 30 plus years following service. For the reasons set forth above, the Board finds that service connection for a left ankle condition is not warranted. While there is evidence of a current left ankle disability and of a medical nexus based on the veteran's reported medical history, service incurrence of a left ankle injury has not been established. In reaching this determination, the Board has considered the applicability of the benefit-of- the-doubt doctrine, but as there is not an approximate balance of positive and negative evidence of record, reasonable doubt could not be resolved in the veteran's favor. Rather, as the preponderance of the evidence is against the veteran's claim for service connection for a left ankle condition, the claim must be denied. ORDER The appeal for an increased evaluation for residuals, fracture, little finger, right hand, is dismissed. Service connection for a left ankle condition is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs