Citation Nr: 1002736 Decision Date: 01/19/10 Archive Date: 02/01/10 DOCKET NO. 08-00 288A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from August 2000 to July 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for bilateral ankle disabilities. Although the Veteran also appealed the issues of service connection for gastroenteritis, flat feet and acne, she subsequently withdrew the appeals with respect to these claims. Accordingly, this decision is limited to the issues set forth on the preceding page. FINDINGS OF FACT 1. The Veteran's in-service complaints pertaining to her ankles were acute and transitory and resolved without residual disability. 2. The competent medical evidence of record fails to establish that the Veteran has a left ankle disability that is related to service. 3. The competent medical evidence of record fails to establish that the Veteran has a right ankle disability that is related to service. CONCLUSIONS OF LAW 1. A left ankle disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 2. A right ankle disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2009). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In a March 2007 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how the VA determines a disability rating and assigns an effective date, and the type of evidence which impacts such. The case was last readjudicated in September 2009. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, VA medical records, the reports of Department of Veterans Affairs (VA) examinations, and the Veteran's testimony at a hearing. As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate this claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by providing argument and evidence. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). The evidence supporting the Veteran's claim includes the service treatment records and some of the post-service medical evidence of record. The service treatment records disclose that the Veteran was seen in June 2003 and reported she had twisted her left ankle 48 hours earlier. She stated she was running when she tripped and fell down. She claims she felt sore when she walked. She related a history of ankle twisting. Following an examination, the assessment was left ankle injury. The Veteran was treated with taping and a wrap. In September 2003, she described twisting her right ankle while on a march. The assessment was grade II right ankle sprain. When seen for follow-up one week later, the Veteran asserted her right ankle was getting better. Slight bruising and swelling were noted. The Veteran was examined by the VA in May 2006. She reported she twisted her ankles a lot. She was also seen in a VA outpatient treatment clinic later in May 2006. She complained of recurrent ankle sprains. The assessment was lateral ankle/subtalar joint instability, bilateral. It was noted in July 2006 that she had grossly unstable ankles and a history of recurrent strains. She was issued bilateral ankle braces. The evidence against the Veteran's claim includes the service treatment records and the conclusion following a VA examination in January 2009. The Board acknowledges that the Veteran was treated for bilateral ankle complaints during service. The fact remains, however, that she was seen on only one occasion for the left ankle, and several times, all within a one week period, for the right ankle. There are no other entries in the service treatment records reflecting complaints concerning either ankle. X-rays of the ankles during the May 2006 disclosed no acute abnormalities. When examined by the VA in January 2009, the examiner reviewed the claims folder. She noted that the first indication of ankle problems after service was in May 2006. An examination revealed no objective evidence of painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement or guarding of movement. It was indicated that the Veteran reported pain on repeated use and pain during flare-ups. The examiner observed that the Veteran had isolated injuries to each ankle during service, but there was no evidence of a chronic ankle condition. She opined that it was more likely that the Veteran's current ankle pain was related to her chronic pes planus and recent weight gain than to the limited injuries in service. The Board acknowledges the Veteran's assertions that her bilateral ankle disability is the result of her military service, and that she is competent to give evidence about what she experienced in service. She is not, however, competent to diagnosis an ankle disability or render an opinion as to the cause or etiology of an ankle condition as such matter requires medical expertise which she is not shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376- 77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Clyburn v. West, 12 Vet. App. 296, 301 (1999). With respect to any possible connection between the Veteran's current bilateral ankle complaints and her military service, the Board must rely on the relevant medical evidence to make a determination. The only competent medical opinion found no such relationship. The Board acknowledges that the Veteran is competent to report the onset of symptoms in service and their continuity since. Buchanan v. Nicholson, 451 F.3d 1331, 1335-6 (Fed. Cir. 2006). However, a chronic ankle condition was not shown in service, and due to the nature of the condition, medical evidence of a nexus is still required. See Clyburn, 12 Vet. App. at 301-302 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). The fact remains that the only competent medical opinion of record failed to relate any current ankle disability to service; rather, the current complaints were related to nonservice connected causes. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for left ankle or right ankle disabilities. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a left ankle disability is denied. Service connection for a right ankle disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs