Citation Nr: 1007486 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-00 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION The Veteran had active duty service from September 2001 to September 2006. This claim comes before the Board of Veterans' Appeals (BVA or Board) on appeal of an October 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in December 2007, a statement of the case was issued in December 2007, and a substantive appeal was received in January 2008. The Veteran testified at a hearing before the RO in September 2008. The October 2007 rating decision also denied service connection for left and right knee disabilities, but these benefits were subsequently granted by rating decision in December 2008. The issues of service connection for left and right knee disabilities are therefore no longer in appellate status. FINDINGS OF FACT 1. The Veteran is not shown to have a right ankle disability. 2. The Veteran is not shown to have a left ankle disability. CONCLUSIONS OF LAW 1. A right ankle disability was not incurred in or aggravated by the Veteran's active service, nor may in- service incurrence be presumed. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 2. A left ankle disability was not incurred in or aggravated by the Veteran's active service, nor may in-service incurrence be presumed. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009) Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in September 2007. The September 2007 letter also provided the Veteran with notice of the types of evidence necessary to establish a disability rating and the type of evidence necessary to establish an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The evidence of record contains the Veteran's service treatment records, as well as post-service VA medical records. The evidence of record also contains a September 2007 report of VA examination. The examination report obtained is fully adequate and contains sufficient information to decide the issues on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). The Veteran and her representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced her in the adjudication of her appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Criteria & Analysis 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 the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 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). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. 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 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service treatment records dated in November 2002 reflect that the Veteran complained of that her left ankle rolled inwards and a history of a sprained ankle years earlier. In October 2004, the Veteran complained of right ankle pain. A Report of Medical Examination dated in May 2006 for separation purposes reflects that the Veteran's lower extremities were clinically evaluated as normal. A Report of Medical History dated in May 2006 for separation purposes does not reflect that the Veteran complained of any ankle disabilities. The Veteran underwent a VA examination in September 2007. She reported previous inversion injuries to both ankles which occurred in 2003. She stated that there have been several inversion type injuries to both ankles, usually associated with running and physical training. She reported mild swelling and occasionally mild ecchymosis of the ankle. Although the examiner diagnosed bilateral ankle strain, the Board notes that an X-ray examination revealed only bilateral plantar calcaneal spurs and negative images of both ankles. At this point, the Board observes that the September 2007 VA examination report reflects that the Veteran does not currently have diagnosed ankle disabilities. The Veteran's service treatment records reflect findings relating to the disabilities at issue. However, based on the objective findings in the September 2007 VA examination, there is no current diagnosis of ankle disabilities. As noted above, the September 2007 VA examination x-ray findings revealed negative images of both ankles. The Veteran has otherwise not identified or submitted any medical evidence which reflects current ankle disabilities. As such, in the absence of proof of a present disability, there can be no valid claim of service connection. See Brammer, supra. As there is no evidence of a current disability, it is unnecessary for the Board to reach the question of etiology of the claimed ankle disabilities. The Board has considered the Veteran's own lay statements to the effect that ankle disabilities were due to service. However, the Veteran is not competent to provide a medical nexus opinion between ankle disabilities and an injury, disease, or event of service origin. Where, as here, the determinative issue involves a question of a medical nexus or medical causation, not capable of lay observation, competent medical evidence is required to substantiate the claim because a lay person is not qualified through education, training, and expertise to offer an opinion on medical causation. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical opinion. 38 C.F.R. § 3.159. For this reason, the Board rejects the Veteran's statements as competent evidence to substantiate the claim that ankle disabilities are related to an injury, disease, or event of service origin. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). There is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision for the issue adjudicated by this decision. 38 U.S.C.A. § 5107(b). ORDER The claim of entitlement to service connection for a right ankle disability is denied. The claim of entitlement to service connection for a left ankle disability is denied. ____________________________________________ HALLIE E. BROKOWSKY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs