Citation Nr: 1038686 Decision Date: 10/15/10 Archive Date: 10/22/10 DOCKET NO. 07-18 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from April 1992 to October 1996 with prior service in the Army Reserves. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of the case was subsequently transferred to the RO in Boston, Massachusetts. FINDING OF FACT The evidence does not demonstrate that the Veteran has a right ankle disability that is related to active service. CONCLUSION OF LAW A right ankle disability was not incurred or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this case. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in September 2005, prior to the adverse determination on appeal, of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The RO did not provide the Veteran notice of how disability ratings and effective dates are determined, but that omission was not prejudicial because the preponderance of the evidence is against the claim, and thus no rating or effective date is being assigned. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim. With respect to private records that could not be obtained, the Veteran was appropriately apprised of such efforts and reminded that it was ultimately his responsibility to secure such documents. Moreover, solicitation of a medical opinion is not necessary in connection with the claim for service connection for right ankle disability as there is no evidence of a current diagnosis of residuals of right ankle disability. See 38 C.F.R. § 3.159(c)(4)(A); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has substantially complied with the notice and assistance requirements; and the appellant is not prejudiced by a decision on the claim at this time. Factual Background and Legal Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may 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). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Treatment reports from the Veteran's period of reserve service prior to his entry into active duty do not show any findings pertaining to the right ankle. Service treatment reports from the Veteran's period of active duty show that in June 1992, he was seen with complaints of right foot pain whenever he walked or ran. Examination revealed full range of motion of the right foot. X-rays of the right foot were normal. The diagnosis was a contusion/strain of the right foot. In July 1992, the Veteran complained of right foot pain and that he had some improvement since he was last seen. He indicated that after running the day before his right foot began causing pain again. In January 1996, the Veteran was treated for a friction blister on his right foot. Post-service treatment records include an August 2005 report from Harvard Pilgrim Health Care which shows that the Veteran was referred to physical therapy for treatment of bilateral Achilles tendonitis. The Veteran underwent a VA orthopedic examination in October 2005. At that time, he complained of tenderness on light pressure in the posterior aspect of the right ankle. The right ankle clearly had an intact Achilles tendon with no evidence of swelling, thickening or indication of chronic tear. There was no evidence of acute inflammation of the Achilles tendon. No abnormalities were noted in the right ankle on both active and passive range of motion testing. No other clinical evidence of record refers to right ankle treatment. The Board finds that service connection for a right ankle disability is not warranted. Again, the VA examination in October 2005 found no right ankle disability. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. The threshold requirement for the granting of service connection is evidence of a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board is mindful of the decision in McLain v. Nicholson, 21 Vet. App. 319 (2007), in which the United States Court of Appeals for Veterans Claims (Court) held that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. Although a diagnosis of Achilles tendonitis is found in August 2005, the evidence as a whole demonstrates that the Veteran does not have chronic right ankle pathology. Indeed, the evidence suggests that the disorder diagnosed as tendonitis in August 2005 was acute and transitory, without lasting residuals. This conclusion is bolstered by the normal findings upon VA examination in October 2005, only two months thereafter. Thus, any symptoms referable to Achilles tendonitis appeared to have resolved. Also, medical evidence subsequent to the October 2005 VA examination report is also silent as to any right ankle complaints or treatment. Thus, under the circumstances of this case, the preponderance of the evidence is against a finding of current chronic disability, even when considering McLain. In sum, absent medical evidence of a current chronic of a right ankle disability, service connection cannot be established, and the claim must be denied. The Board acknowledges the Veteran's contentions that a current right ankle disability started in military service. Certainly, he is competent to describe symptoms of ankle pain. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, however, the Veteran's statements as to continuity of symptomatology are not deemed credible and thus they do not serve as a basis for a grant of service connection. Indeed, upon discharge from service in 1996, the Veteran filed his first claim for VA disability compensation in 1999. At that time, he only reported left shoulder problems. He did not raise a claim referable to the ankles until 2005. Given that he understood how to file a claim in 1999, it is reasonable to expect that if he was then experiencing right ankle problems, he would have made such a claim. His failure to do so strongly suggests that he was not experiencing right ankle symptoms at that time. Thus, continuity of symptoms has not been established by the clinical evidence or by the Veteran's own statements. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102 (2010). ORDER Entitlement to service connection for a right ankle disability is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs