Citation Nr: 1037814 Decision Date: 10/06/10 Archive Date: 10/15/10 DOCKET NO. 10-02 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for residuals of a right ankle injury. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1942 to March 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The preponderance of the evidence shows that the Veteran's current diagnosis of post traumatic injury arthritis was not incurred in military service, was not incurred to compensable degree within one year of discharge from service or is otherwise related to active military service. CONCLUSION OF LAW Residuals of a right ankle injury were not incurred in or aggravated by active military service, nor may right ankle arthritis be presumed related to service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. 38 C.F.R. § 3.159(b). With regard to claims for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. After careful review of the claims folder, the Board finds that a January 2009 letter satisfied the duty to notify provisions and it was provided to the Veteran prior to the initial decision by the AOJ. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Specifically, the letter advised the Veteran what information and evidence was needed to substantiate his service connection claim for a right ankle injury. The Veteran was notified of how VA will determine the disability rating and effective date if his claim is granted. The letter also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records and records from other Federal agencies. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of his claim and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private treatment records and an opinion from a private physician. The Board observes that the Veteran was not provided with a VA examination with respect to his claim. VA has a duty to provide a VA examination when the record lacks evidence to decide the veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's service treatment records do not show an in-service ankle injury and the Board has determined that the Veteran's lay statements of an in-service ankle injury are not credible. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that VA was not required to provide a medical examination when there is not credible evidence of an event, injury or disease in service). Furthermore, there is no credible evidence of a relationship between the Veteran's current right ankle disorder and active military service. Thus, the Veteran has not presented sufficient evidence to trigger VA's duty to provide an examination and there is enough evidence in the file to decide the Veteran's claim. Furthermore, the claims file contains the Veteran's statements in support of his claim. The Board has carefully reviewed such statements and it concludes that he has not identified further available evidence not already of record. Therefore, the Board finds that all relevant facts have been developed properly and sufficiently in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. II. Merits of the Claim for Service Connection The Veteran claims his right ankle disorder is related to active military service. Specifically, he contends that he injured his right ankle during basic training in January or February 1943 and this injury has caused pain from his foot all the way up his leg to the buttocks. Service connection may be granted to a veteran for a disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for a 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 addition, service connection may be presumed for certain chronic diseases that are manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2010). In general, to establish service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Such determination is based on an analysis of all the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). In assessing the Veteran's service connection claim for residuals of a right ankle injury, the Board must determine whether the Veteran currently has a diagnosis of the claimed disability. A January 2008 private treatment record reveals that the Veteran had some mild narrowing of the tibial talar joint base, as well as some mild narrowing of the subtalar joint space with no evidence of fracture. An April 2009 private physician letter provides a diagnosis of severe post traumatic injury arthritis of the right ankle. Accordingly, the evidence shows that the Veteran has a current diagnosis of a right ankle disorder. Nevertheless, the competent and credible evidence of record does not show that the Veteran's current right ankle disorder is related to his active military service or manifested to a compensable degree within one year of discharge. In this regard, a review of the Veteran's service treatment records shows that the medical evidence does not reveal that the Veteran complained of or received treatment for a right ankle injury during active military service. The Veteran reported that he had not had any medical care for his right ankle until he sought treatment from Dr. C. E., a private physician. January 2009 statement in support of claim. The first medical evidence of any complaints of or treatment for an ankle disorder was in January 2008, approximately 62 years after discharge from active military service. This large gap between the Veteran's active military service and the first medical evidence of complaints of a right ankle disorder is evidence against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). The record contains the Veteran's lay statements that he injured his right ankle during service. The Board finds that the Veteran is competent to report that he injured his right ankle during military service. See Savage v. Gober, 10 Vet. App. 488, 497-98 (1997). However, the Veteran's statements are subject to a Board analysis of credibility. See Hayes v. Brown, 5 Vet. App. 60, 69- 70 (1993), citing Wood v. Derwinski, 1 Vet. App. 190, 192- 193 (1992). The evidence of record shows that the Veteran has provided conflicting statements regarding the occurrence of an in-service right ankle injury. Although the Veteran asserted in his November 2008 claim that he injured his right ankle during basic training, a January 2008 private treatment record reveals that the Veteran denied any trauma to his right ankle when he sought treatment for bilateral ankle pain. The Board emphasizes that this denial of any past trauma was made while the Veteran was seeking treatment for bilateral ankle pain. Lay statements made when medical treatment was being rendered may be afforded greater probative value. These records were generated with a view towards ascertaining the appellant's then-state of physical fitness; they are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Furthermore, the Veteran's statements are inconsistent with the objective evidence of record. There is no evidence of treatment for a right ankle disorder to include due to an injury during military service and the first indication of complaints of a right ankle disorder in the record is not shown until 2008. As noted above, the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered against a claim of service connection. See Maxson, 230 F.3d at 1333; Shaw v. Principi, 3 Vet. App. 365 (1992). In light of foregoing, the Board finds that the Veteran's statements are not credible and it is unable to afford his statements regarding the onset of an ankle disorder any probative value with respect to the issue of whether there was an in-service right ankle injury. Furthermore, there is no probative evidence of record that indicates the Veteran's current right ankle disorder is otherwise related to military service. The Board acknowledges that the record contains a private medical opinion dated in April 2009. It reveals that the Veteran's private physician has treated the Veteran with pain management medications for severe post traumatic injury arthritis of the right ankle. The physician provided the opinion that the injury causing arthritis was sustained while the Veteran was in the military. There is no evidence that the private physician reviewed the Veteran's service treatment records and it appears that the physician relied on the Veteran's assertions that he injured his right ankle during military service in forming his opinion. As discussed in above, the Board has found that the Veteran's lay statements regarding an in-service ankle injury are not credible. Furthermore, it is not supported by the medical evidence of record. Thus, to the extent that the private physician relied on a history of an in-service ankle injury, which the Board does not find credible, the Board ascribes no probative value to that opinion. See Coburn v. Nicholson, 19 Vet. App. 427 (2006) (held that reliance on a veteran's statements renders a medical report incredible only if the Board rejects the statements of the veteran); Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (the Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate or because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion). The Board also finds that the April 2009 opinion is not probative, because the physician did not provide any rationale for his opinion. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). With respect to the Veteran's contentions that his current right ankle disorder is related to military service, these assertions have no probative value because lay persons are not competent to offer medical opinions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.19 (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). The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current diagnosis of post traumatic injury arthritis and military service. Based on the evidence discussed above, the Board concludes that a preponderance of the evidence is against the Veteran's service connection claim for residuals of a right ankle injury. Therefore, the Veteran's claim for entitlement to service connection for residuals of a right ankle disorder is not warranted. ORDER Entitlement to residuals of a right ankle injury is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs