Citation Nr: 1008045 Decision Date: 03/04/10 Archive Date: 03/11/10 DOCKET NO. 07-20 824A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for right ankle/foot disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active duty service from May 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in June 2006, a statement of the case was issued in June 2007, and a substantive appeal was received in July 2007. A personal RO hearing was scheduled in April 2008; however, the Veteran cancelled it. The Board notes that the issue of entitlement to an initial higher rating for residual of fracture 5th metacarpal (right hand) was also on appeal from the February 2006 rating decision. However, in a January 2008 statement, the Veteran withdrew his appeal of this issue. Thus, there remain no allegations of errors of fact or law for appellate consideration of this issue. See 38 C.F.R. § 20.204 FINDING OF FACT Chronic right ankle/foot disability was not manifested during active military service, nor is it otherwise related to such service CONCLUSION OF LAW Chronic right ankle/foot disability was not incurred in or aggravated by active military service, nor may it be presumed to be incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). Duty to Notify The record shows that in July 2005, December 2005 and July 2006 VCAA letters, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet.App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in July and December 2005, which was prior to the February 2006 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet.App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. Further, the July 2006 letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, private treatment records, Michigan Bureau of Disability records and VA examination reports. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. The Veteran was afforded a VA examination with etiological opinion in May 2007. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examination report obtained contains sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet.App. 204 (1994). Thus, the Board finds that a further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue on appeal. Analysis The Veteran is seeking entitlement to service connection for right ankle/foot disability. 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 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; 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). Service treatment records showed that in May 1970, the Veteran reported with blisters on both feet and a possible sprained right ankle. The assessment was twisted ankle. Importantly, a contemporaneous x-ray was negative. His ankle was wrapped with an ace bandage and he was put on light duty. Again, in July 1971, the Veteran had a sprained right ankle. Again, an x-ray showed no fracture. His ankle was again wrapped in an ace bandage. He was given crutches and put on limited duty. Otherwise, service treatment records are silent with respect to any injuries to the right ankle/foot. Further, importantly, a December 1971 service examination prior to discharge showed that the Veteran's feet and lower extremities were clinically evaluated as normal. In a January 1972 statement, the Veteran provided that there had been no change in his medical condition from the last examination. The first mention of any right ankle/foot disability in the claims file was when the Veteran filed his current claim for service connection in June 2005. The Veteran indicated that he injured his right/ankle foot in 1971 while in service. The first post service medical evidence of right ankle/foot disability are June 1995 to November 1995 private treatment records from Podiatry Plus, P.C., which showed that the Veteran was diagnosed with right heel spur syndrome with calcaneal bursitis and plantar fasciitis. These records are silent with respect to any problems associated with the right ankle, and do not provide any link between any right foot disability and the right ankle injuries in service. Subsequently, the next post service treatment records are March 2005 private hospital records that showed the Veteran was admitted for painful swelling in the right lower extremity. There was no evidence of deep vein thrombosis. The Veteran was discharged in April 2005 with a diagnosed of intermediate probability pulmonary embolus. Significantly, the first post service medical evidence pertaining to a right ankle disability is a May 2005 private treatment record from Podiatry Plus P.C. The Veteran presented complaining of right ankle pain. He indicated that the onset was gradual. The diagnosis was right ankle pain; rule out stress fracture right ankle; and possible soft tissue injury right ankle. Follow up treatment records showed a diagnosis of resolving capsulitis right ankle as well as pes cavus of both feet and skin and nail conditions of both feet. A November 2005 private MRI showed additional disabilities of the right ankle. The claims file also includes private treatment records from December 2005 to August 2007 from James Fogarty, M.D. and Stacy Bacon, M.D. Significantly, the Veteran reported that he broke his right ankle 35 years ago. However, his current problem had been bothering him for nine months. The examiner noted some degenerative changes present as well as some chronic inflammation of the ligaments, but there did not seem to be any obvious cause of the problem. The assessment was effusion, joint ankle. In July 2007, the Veteran underwent a right ankle arthroscopy with extensive debridement, synovectomy, exostectomy and removal of loose bodies in the ankle joint. The postoperative diagnoses were right ankle degenerative joint disease, right ankle impingement, synovitis right ankle and loose debris right ankle. However, there is no opinion in these records linking any current right ankle disability to the incidents in service. The claims file also includes records pertaining to workmen's compensation claims filed by the Veteran from the Michigan Bureau of Disability. However, while these records refer to injuries of the knees, spine, shoulders and left ankle, these records are silent with respect to the right ankle/foot. The Veteran was afforded a VA examination in January 2006. However, the claims file was not available for review. The Veteran reported a past medical history of deep venous thrombosis for which he was hospitalized in April 2005. He also stated that he injured his right foot in 1971. He stated that he was x-rayed and was told he had a "hairline fracture." He said he was given a brace and placed on crutches for a month. While a contemporaneous x-ray showed degenerative changes and soft tissue swelling, there was no evidence of an acute fracture. The assessment was right ankle degenerative joint disease of moderate severity. The examiner opined that a component of the Veteran's pain was probably related to history of deep venous thrombosis of the same leg. However, no further etiological opinion was given. The Veteran was afforded another VA examination in May 2007. The claims file was reviewed. The examiner noted both incidents in service. After examining the Veteran and reviewing x-ray evidence, the assessment was again degenerative joint disease of the right ankle. The examiner observed that it was extremely uncommon for the ankle to develop degenerative joint disease unless there was a prior traumatic injury to the articular cartilage of the ankle that would predispose him to degenerative joint disease of the ankle. On reviewing the service medical records, the two episodes where he sprained his ankle appeared to be quite minor sprains and involved the lateral malleolar aspect of the ankle and not the lateral aspect of the ankle. The indication from the service medical records was that the Veteran did not sustain an injury significant enough to where it would have caused any cartilaginous rupture in the ankle joint itself. If he had significant injury to the articular cartilage while in service, the degenerative joint disease would have been much more advanced at a much earlier age than what he currently had. The examiner concluded that he found no medical evidence that the slight sprain injuries in service would contribute to the current degenerative joint disease. It was therefore his opinion that the current degenerative joint disease was not due to the two minor sprains that he had when in service. In a July 2007 statement, the Veteran appeared to assert that the VA examination was insufficient because it was done by a physician's assistant. However, in Cox v. Nicholson, 20 Vet.App. 563 (2007), the Court held that it has never required that medical examinations under section 5103A only be conducted by physicians. As provided by 38 C.F.R. § 3.159(a)(1), "competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." In Cox, a nurse practitioner was found to fit squarely into the requirement of section 3.159(a)(1) as a provider competent to provide diagnoses, statements, or opinions. Similarly, in this case, the May 2007 VA examiner, who was identified as a physician's assistant, completed medical education and training and meets the requirement of section 3.159(a)(1) as one competent to provide diagnoses, statements, or opinions. Moreover, the May 2007 VA examiner reviewed the Veteran's claims file and provided competent medical evidence specifically addressing the medical evidence of record including the service treatment records, and as such, the Board concludes that the examination report and the opinion of the examiner is sufficient upon which to base a decision. In sum, given that the claims file was reviewed by the examiner and the examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be sufficient for appellate review and has a high probative value. In support of his claim, the Veteran submitted a January 2008 private opinion from Dr. Bacon. The opinion stated that the Veteran had significant degenerative changes in his right ankle with cartilage injury. She continued that he sustained an injury while in the army several years ago. The Veteran had posttraumatic arthritis in his right ankle, which required an ankle arthroscopy. However, the examiner did not provide a clear opinion relating the Veteran's current right ankle disability to the two incidents documented in service or any rational for such opinion. While she observed that the Veteran sustained an injury in service, according to his treatment records with this doctor, the Veteran had reported that he broke his ankle in service. However, service treatment records, including x-ray evidence, clearly showed no fracture. The examiner's opinion is therefore based on inaccurate medical history provided by the Veteran and, in turn, the opinion has not probative value. Based on the evidence of record, the Board finds that service connection for right ankle/foot disability is not warranted. While service treatment records showed two incidents where the Veteran sprained his right ankle, the December 1971 service examination prior to discharge showed that the feet and lower extremities were clinically evaluated as normal. Further, after reviewing the claims file and examining the Veteran, the highly probative May 2007 VA examination report stated the Veteran's right ankle disability was not related to service and provided a detailed rational for such opinion. The only medical evidence of record to refute this opinion is the January 2008 private opinion, which has been found to have no probative value because it is based on inaccurate history provided by the Veteran. Further, there is no evidence of arthritis within one year of service so the service incurrence of arthritis of the right ankle may not be presumed. Moreover, while the post service treatment records also showed additional disabilities of the right foot and right lower extremity, service treatment records are silent with respect to any related injuries. Significantly, there is no competent medical evidence linking any other disability of the right foot and lower extremity to service. Further, the Board further finds it significant that the first post service medical evidence was in 1995, approximately 24 years after service, and the first post service medical evidence of a right ankle disability was in 2005, approximately 34 years after service, so there is no supporting medical evidence of a continuity of pertinent symptomatology. A lengthy period without evidence of treatment may also be viewed as evidence weighing against the Veteran's claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed.Cir. 2000). The Board acknowledges the Veteran's statements indicating that his right ankle/foot disability was due to the incidents documented in service. However, medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Nevertheless, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Citing Buchanan and Jandreau, the Federal Circuit recently reiterated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When applying the case law discussed above, here, the Veteran is competent to say that he experienced symptoms while in service and his assertions concerning injuring his ankle in service are supported by the service treatment records. Further, he is also competent to report a continuity of symptoms since service. However, any current assertions in this regard by the Veteran are inconsistent with the other evidence of record which showed no pertinent complaints over many years. Moreover, the Veteran has claimed during the course of treatment and at the January 2006 VA examination that he had broken or fractured his right ankle in service. However, these statements are completely inconsistent with the x-ray evidence done at the time of the injuries. Moreover, he claimed that he was given a brace in service, but service treatment records clearly showed that he was only wrapped with an ace bandage. Another December 2005 private treatment record also noted that the Veteran reported that his right ankle had been bothering him for nine months, which is completely inconsistent with any statements that he had experienced problems since service. In sum, these inconsistencies diminish the Veteran's credibility. Moreover, at the January 2006 VA examination, the Veteran reported that he had recently been treated for deep vein thrombosis in April 2005. However, the hospital records clearly showed that the Veteran did not have deep vein thrombosis. Again, this inconsistency clearly shows that the Veteran is not a reliable historian and, in turn, cannot be considered credible. Further, it is reasonable to expect that the Veteran would have reported ongoing right ankle/foot problems since service if he was in fact experiencing them. His failure in this regard further diminishes his credibility regarding a continuity of symptoms since service. Accordingly, the Board finds that the Veteran is not credible to the extent that he reports a continuity of symptoms since service. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.)." In sum, while the Veteran's contentions have been carefully considered, these contentions are outweighed by the remaining evidence of record, including the highly probative May 2007 VA examination. In conclusion, a preponderance of the evidence is against the Veteran's claim for right ankle/foot disability. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for chronic right ankle/foot disability is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs