Citation Nr: 1136845 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 08-08 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right ankle disability, to include as secondary to his service-connected degenerative joint disease, right knee, post operative. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Yoo, Associate Counsel INTRODUCTION The Veteran had active service July 1963 to May 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In November 2009, the Board determined new and material evidence was received to reopen the claim of service connection for a right ankle disability. After reopening the claim, the Board remanded the matter for further development in November 2009 and May 2011. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran's right ankle condition is related to service, or secondary to his service connected right knee disability. CONCLUSION OF LAW A right ankle disability was not incurred in or aggravated by the Veteran's military service, may not be presumed to have been incurred in or aggravated by service, and is not secondary to the Veteran's service connected right knee disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Duties to Notify and Assist VA has a 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. 2010); 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; (3) that the claimant is expected to provide. In September 2006 the agency of original jurisdiction (AOJ) provided the notices required by 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010) and 38 C.F.R. § 3.159(b) (2010). Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claims for service connection; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The September 2006 notice also include the requirements pursuant to Dingess. Although this notice letter postdated the initial adjudication, no prejudice resulted as the claims were subsequently readjudicated without taint from the prior decision. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). It is, therefore, the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining post-service VA and private medical treatment records, and previously remanded by the Board in November 2009 and May 2011 for further development. The Veteran has also been afforded with VA examinations in March 2010 and May 2010. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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). Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). An appellant's own conclusion, stated in support of his claim, that his present disability is secondary to his service-connected disability is not competent evidence as to the issue of medical causation. See 38 C.F.R. § 3.159 (2008); see also Grivois v. Brown, 6 Vet. App. 136 (1994). When determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). As such the Board will address the Veteran's claims for service connection for the right ankle disability on both direct and secondary bases. At an August 2008 Board hearing, the Veteran, along with his representative, testified that the Veteran's current right ankle disability should be service connected from an injury sustained during basic training in August 1963. The Veteran testified he fell from horizontal bars and landed on his ankle. The Veteran stated he was told it was sprained and was sent to the clinic and then to a hospital for x-rays. A gel cast was placed on his ankle for approximately a week. The Veteran had contracted mumps during this time and was in the hospital for approximately three weeks. See August 2008 Board hearing transcript. The Veteran further testified that upon separation from service in 1967 his ankle was still causing swelling and pain. The Veteran stated he did not seek treatment for his right ankle because his right knee required medical attention. After the Veteran's right knee underwent replacement surgery, his right ankle started developing increased pain. The Veteran stated he was told by his doctors his right ankle pain was associated to his knee. He disagreed. Id. The Veteran stated again in a March 2011 statement that he was told the swelling and pain in his right ankle was related to the problems he was experiencing in his knee. The Veteran contends it is related that the only instance he injured his ankle was during active duty and the current disability is related to this injury. See Veteran's statement, dated March 2011. The Board notes that the Veteran is currently service connected for degenerative joint disease, right knee, post operative, at 30 percent evaluation. The Veteran's service treatment records reveal that he fell on his right ankle in August 1963. The Veteran's right ankle was placed in a cast for three weeks. The record indicates the Veteran may have had mumps in 1963. However, in a July 1964 re-enlistment examination, the Veteran did not report he did not have mumps currently or in the past. There is also evidence that the Veteran injured his left ankle in October 1968 while stepping off a military vehicle. The Veteran's left ankle was treated with a gel cast but developed signs of deep thrombophlebitis and post-phlebitic leg symptoms. See service treatment records. The August 2005 treatment records from Dr. J. F. Carter, the Veteran's private orthopedist, revealed the Veteran complained of and was treated for a right ankle disability. The Veteran stated that he experienced pain in his right ankle since service and was diagnosed with localized osteoarthrosis of the right ankle and foot. See Dr. J. F. Carter private treatment records, dated August 2005. Examination of the Veteran's right ankle revealed "no joint effusion. His skin is intact. Range of motion was 2-3 degrees of dorsiflexion. Full range of motion on plantar flexion. He has good subtalar motion. Motor strength is 5/5." However, as stated above, the Veteran was diagnosed with primary localized osteoarthrosis of the right ankle and foot. The Veteran was treated with injections to the right ankle. In addition, there is no indication in private treatment records that the Veteran complained of or was treated for any left ankle disability. Id. An x-ray of the right ankle revealed "[t]hree views weightbearing demonstrate significant narrowing of the tib/talar joint. The subtalar joint appears to have excellent cartilage base. No fractures, dislocations or dysplasias noted." Id. In March 2010, the Veteran underwent a VA examination to determine whether the right ankle disability was etiologically related to service. He was diagnosed with degenerative joint disease right ankle and tenosynovitis right posterior tibialis tendon and peroneus longus tendon. Upon physical examination and review of the evidence of record, the VA examiner opined the "[c]urrent ankle condition is less likely than not caused by, related to or aggravated by acute ankle sprain [forty seven] years prior." The VA examiner stated that while there were two entries for right ankle sprains there was no chronicity of symptoms within the service medical records or civilian medical records for over forty years. See VA examination, dated March 2010. However, the March 2010 examination report did not address whether his right ankle disability is due to his service connected degenerative joint disease of the right knee. Therefore, the Board again remanded the Veteran's claim for an opinion to address this asserted secondary relationship. The Veteran underwent another VA examination in May 2010. The Veteran reported that he has had no surgery to the right ankle but stated he had occasional locking or instability. He reported constant pain in the anterior portion of the joint, with occasional flares aggravated by walking downhill or going up or down step ladders. The Veteran does not wear a brace. A physical examination revealed the Veteran's gait was mildly antalgic to the right and was ambulatory with a cane in the right hand. Upon physical examination and a review of the evidence of record, including the prior x-rays the Veteran was diagnosed with degenerative joint disease of the right ankle and tenosynovitis of the right posterior tibialis tendon and peroneous longus tendon. See VA examination, dated May 2010. The examiner noted that the Veteran's service records showed two entries for a right ankle sprain with no further entries over six years of service and no evidence of chronicity in the in-service and post-service treatment records for over forty years. Therefore, the examiner opined the Veteran's current ankle condition is less likely than not caused by, related to or aggravated by an acute ankle sprain during service. Id. Regarding the issue of whether the Veteran's right ankle condition is secondary to the Veteran's service-connected right knee disability, the examiner determined that it was "less likely than not caused by, related to, or worsened beyond natural progression by his service connected right knee condition or any other service connected condition." The examiner based this opinion on the evidence of record that "[t]he initial claim was based on an ankle injury approximately [thirty] year prior to his knee arthroplasty. Degenerative joint disease is a condition of aging." Id. After reviewing all the evidence, the Board is unable to grant the Veteran's claim for service connection for a right ankle disability on a direct basis and as secondary to a service connected degenerative joint disease, right knee, post operative. While it is appears that the Veteran currently has a right ankle disability, the medical evidence of record as a whole supports the proposition that there is no etiological relationship between the origin and/or severity of any right ankle condition and service or his service-connected right knee. Specifically, the March 2010 and May 2010 VA examinations provide a negative nexus opinion as to the question of etiology. Therefore, direct service connection is not warranted because while the evidence does show that the Veteran was treated for a right ankle injury during service, there is no objective evidence of a medical nexus between the Veteran's current right ankle condition and his period of military service. There is also no evidence of chronicity of symptomatology since separation. The Board also notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a lapse of time is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000). The first recorded complaint and treatment for a right ankle disability post-service occurred in August 2005; almost forty years after the Veteran separated from service. Furthermore, despite the Veteran contention that his ankle disability is secondary to the service-connected right knee, where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his opinion because he is not a medical health professional and his opinion does not constitute competent medical authority. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Here, while the Veteran is competent to describe his symptoms of his right ankle and knee disabilities, he is, however, not competent to comment on the etiology of the condition. In addition, as previously stated, while the Veteran has a current diagnosis of a right ankle disability, there is no indication from the evidence that it is related to service-connected disability. In arriving at the above conclusion, the Board has applied the reasonable doubt doctrine and has given the Veteran the benefit of the doubt wherever permissible. See 38 C.F.R. § 4.3; see also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990) (if the Board rules against a veteran in a case where there are "two permissible views" of the evidence, the Board must provide an "adequate statement of [its] reasons or bases" in support of its determination that the veteran is not entitled to the benefit of the doubt) (internal quotations omitted). The Board is sympathetic to the Veteran's cause and appreciates his honorable military service. However, in this case, the evidence for the Veteran's claim is outweighed by the countervailing evidence. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Consequently, in light of the lack of competent evidence supporting the claim, service connection must be denied as to the Veteran's appeal. ORDER Entitlement to service connection for a right ankle disability, to include as secondary to his service-connected degenerative joint disease, right knee, post operative, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs