Citation Nr: 1037477 Decision Date: 10/01/10 Archive Date: 10/12/10 DOCKET NO. 09-17 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a right ankle condition. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran had active service from December 1994 to December 1998. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision by the Department of Veterans Affairs (VA) Cleveland, Ohio Regional Office (RO). As the Veteran has moved to New York, the Buffalo, New York RO has properly assumed jurisdiction over his claim. The Veteran appeared and testified at a Travel Board hearing held before the undersigned Veterans Law Judge in October 2009. A transcript of the hearing has been associated with the claims folder. This case was previously before the Board in January 2010. At that time, the Board remanded the Veteran's claim in order that the Appeals Management Center may seek records of the Veteran's VA treatment. A review of the Veteran's claims file reveals that this development has been completed. The Board thus finds there was substantial compliance with its January 2010 remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance). As the requested development has been completed, the case may proceed without prejudice to the Veteran. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran is not diagnosed as suffering from a chronic, ratable right ankle disability. CONCLUSION OF LAW The criteria for service connection for a right ankle condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic; continuity is also required where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In order to grant a service connection claim, the Board must find medical evidence that the Veteran currently suffers from a disability, medical evidence (or, in certain circumstances, lay evidence) of an in service incurrence or aggravation of that disability, and medical evidence of a nexus between the present disability and the disability claimed in service. Hickson v. West, 12 Vet. App 247, 253 (1999) (citing 38 C.F.R. § 3.303(a)). In this case, the Veteran seeks service connection for a right ankle condition which he contends is causally related to his active service. For the reasons that follow, however, the Board determines that service connection for a right ankle condition is not warranted. The Board acknowledges that the Veteran suffered a right ankle injury in service. A review of the Veteran's service treatment records reveals that the Veteran injured his ankle in January 1995. The Veteran was climbing a rope when he lost his grip and fell to the ground, twisting his ankle in the process. An examination at that time found no evidence of edema or erythmea. The Veteran's gait was normal, and he had full range of motion. He was diagnosed as suffering from a right ankle sprain and told to treat his sprain with ibuprofen and ice. At a return check- up, an examiner found no deformity, discoloration, or edema in the Veteran's right ankle. He had full active range of motion and strength of 5 out of 5. His x-ray was within normal limits. There is no record of the Veteran complaining of or seeking treatment for a right ankle condition following this injury. By the time of his separation examination in July 1998, his examiner did not note any problems with the Veteran's right ankle. Perhaps more important, on his report of medical history, the Veteran himself did not mention any lingering issues with his ankle. Despite this evidence of an in-service injury, the Veteran's claim fails because there is no evidence that he is currently suffering from a chronic right ankle injury. The Veteran underwent a VA examination in October 2007. The Veteran reported that his right ankle made a popping noise, particularly when he climbed stairs. The Veteran did not report suffering from pain, fatigability, decreased endurance, incoordination, or flare-ups. Upon examination, the examiner reported that the Veteran's right ankle was not tender to palpation. He found no evidence of swelling or deformities. The Veteran had dorsiflexion of 30 degrees, plantar flexion of 40 degrees, inversion of 5 degrees and eversion of 0 degrees. The examiner found no evidence of pain, weakness, fatigability, decreased endurance, or incoordination in the Veteran's right ankle. A VA radiologist offered his opinion that x-rays performed in conjunction with the Veteran's examination showed his ankle to be normal. The examiner did not diagnose the Veteran as suffering from a right ankle disability. Other medical records associated with the claims file similarly do not show a diagnosis of a right ankle disability. Records of the Veteran's treatment at Bolling Air Force base from 1998-2005 do not show complaints of or treatment for an ankle disability. A VA treatment record from July 2009 does reflect a complaint of right ankle pain, but the Veteran was not given a diagnosis for this pain, and a later September 2009 record reflects that his ankle was within normal limits. The Veteran presented testimony regarding his right ankle in an October 2009 Travel Board hearing. The Veteran discussed his initial injury, his current symptoms, and his treatment. Importantly, however, while the Veteran mentioned that his right ankle pops and is painful, he did not state that he was given any particular diagnosis for his right ankle condition. This lack of a diagnosis ultimately proves fatal to the Veteran's claim. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, vacated and remanded in part sub nom. Sanchez- Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that, absent an underlying malady or condition, mere symptoms do not constitute a disability for which service connection may be granted). It is axiomatic that "in the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no evidence that the Veteran is currently suffering from a chronic, ratable right ankle condition. Accordingly, the Board concludes that the criteria for service connection for a right ankle condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. Finally, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 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). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2007 - prior to the initial RO decision in this matter - that addressed the notice elements. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Court of Appeals for Veterans Claims ruled that VA must inform claimants of all five elements of a service connection claim, including how VA assigns disability ratings and how an effective date is established. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Though the Veteran in this case did not receive such notice regarding ratings and effective dates, his claim is being denied, so there can be no possibility of any prejudice to him. See Smith v. Shinseki, No. 08-1667, slip op. at 11 (Vet. App. Aug. 17, 2010) (finding failure to provide Dingess notice to Veteran whose service connection claim was being denied to be harmless error). Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records, records of his post-service VA treatment, and records of his post-service private and military treatment. The Veteran requested and attended a Travel Board hearing. The Veteran was afforded a VA compensation and pension examination. The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Service connection for a right ankle condition is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs