Citation Nr: 1003262 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 07-16 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for right ankle disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from October 1982 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDING OF FACT The evidence of record does not show a current right ankle disorder related to the Veteran's military service. CONCLUSION OF LAW A right ankle disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's August 2006 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With respect to the Dingess requirements, the August 2006 letter provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, as well as his identified VA and private medical treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In addition, a VA examination to determine the etiology of the Veteran's current right ankle disorder is not required in this case. Specifically, a right ankle disorder was not shown during service or for more than 20 years thereafter. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). As discussed in more detail below, physical examinations in March 1999 and February 2002 noted normal findings concerning the Veteran's lower extremities. Moreover, at these examinations, the Veteran denied having any history of joint pains or limitations in his lower extremities. Finally, as a lay person, he can not provide competent evidence by his statements alone that observable symptoms are manifestations of chronic pathology or diagnosed disability, and there is no indication any current right ankle disorder is associated with his military service. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997); 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4). There is no sign in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (2009). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). 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 medical 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 Pond v. West, 12 Vet App. 341, 346 (1999). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veteran is seeking service connection for a right ankle disorder. On his application form, VA Form 21-526, he indicated that he injured his right ankle in November 1983 while on maneuvers in Germany. Specifically, he reported twisting/rolling his ankle. He indicated that his ankle was treated by a medic with tape and ice. He also indicated that it was good enough to walk on in a week, but that it never healed properly and was still very weak. A review of his service treatment records revealed that the Veteran was treated for a right heel injury in February 1983. The report concluded with an assessment of soft tissue injury versus fracture. No follow up treatment was indicated. A March 1999 comprehensive medical evaluation noted that the Veteran reported exercising four days a week doing aerobic and weight training. He denied having any significant joint pains, complicated fractures, or limitations. Physical examination of his bones and joints revealed no swelling, inflammation, or deformities. The examiner noted that the Veteran's extremities had good pulsations and no edema. The examiner concluded with an impression of good general health. A March 2002 annual physical report noted that there had been no change in the Veteran's health status, and that his medical history included no serious injuries. The examiner noted that the Veteran exercised as much as possible, but was working full time and going to school. He denied having any history of joint pains, complicated fractures, or limitation of motion of his extremities, other than his shoulders. Physical examination of his bones and joints revealed no deformities or synovial thickening. His extremities exhibited good pulsations and no varicosities or swelling. The report concluded with an impression of good general health. An October 2006 VA treatment report noted that the Veteran reported that he sprained his right ankle in the military and that it had been weak since that time. He indicated that it had been reinjured several times, and that he wanted a brace to help with strength. A November 2006 treatment report noted the Veteran's history of an old roll-over right ankle injury while in the military. The report noted that he had intermittent right ankle pain and re-occurrence of a right ankle roll-over event. The Veteran was issued an ankle stabilization traditional brace. A March 2007 treatment report noted that the Veteran continued to have right ankle pain. Based upon its longitudinal review of the record, the Board concludes that service connection is not warranted for a right ankle disorder. Specifically, the Board finds that the evidence of record does not show the Veteran has a current right ankle disorder related to his active duty service. Initially, the service treatment records are negative for any complaint of finding of a right ankle disorder. While he was shown to have been treated for complaints of right heel pain, this treatment report was silent as to any ankle problems. Moreover, no subsequent treatment for this condition was indicated. The first post-service complaints of a right ankle disorder are not shown until October 2006, 22 years after the Veteran's discharge from the service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the appellant failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Moreover, medical evaluations prior to October 2006 fail to document any right ankle complaints or concerns. The March 1999 comprehensive medical evaluation noted that the Veteran exercised four days a week, including aerobic and weight training activities. He also denied having any significant joint pains, complicated fractures, or limitations. At his March 2002 annual physical, the Veteran denied having any joint pains or limitations of his extremities, denied having any medical history of serious injuries, and also reported that he exercised as much as possible. In addition, both physical examinations in March 1999 and March 2002 revealed normal findings concerning the Veteran's lower extremities. Finally, the medical evidence of record does not attribute any current right ankle disorder to his military service. While some of Veteran's recent treatment records have noted his self-reported history of a right ankle injury during his military service, "a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional." LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Thus, there is no evidence linking any current right ankle disorder to his military service. Although the Veteran was treated recently for complaints of right ankle pain subsequent to service, a diagnosis of a current right ankle disorder is not shown. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Although the Veteran, family members, and a fellow service member, contend that his current right ankle disorder resulted from his military service, these statements are not competent evidence to establish a diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Lay assertions of medical diagnosis cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). In addition, the Board finds the Veteran's contentions herein are not consistent with the evidence of record. As noted above, there is no objective evidence of any complaints of or treatment for a right ankle disorder for 22 years prior to his discharge from service. The evidence of record indicates that the Veteran had post-service employment requiring climbing telephone poles, going up and down ladders, and working on hillsides. At his October 2007 hearing before the RO, the Veteran testified that "up until 2006 I thought, well, it will heal up." Nevertheless, the Veteran specifically denied having any joint pains during his March 1999 and February 2002 physical examinations. In addition, after physical examinations both examiners noted normal findings regarding the Veteran's lower extremities. Finally, there are inconsistencies with the Veteran's contentions as to the timing of his right ankle injury. At his hearing before the RO, the Veteran testified that he had a right ankle injury at Ft. Sill, rather than the previously alleged injury in Germany. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for right ankle disorder, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for right ankle disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs