Citation Nr: 1118587	
Decision Date: 05/13/11    Archive Date: 05/17/11

DOCKET NO.  07-15 001	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for residuals of torn tendons of the right ankle, claimed as a foot disorder.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Davitian, Counsel


INTRODUCTION

The Veteran served on active duty from September 1952 to July 1954, and from August 1965 to August 1967, with additional service in the Naval Reserve.

This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the benefit sought on appeal.

When this issue was previously before the Board in July 2010, it was remanded for additional development.  The case is now before the Board for final appellate consideration.

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).


FINDING OF FACT

There has been no demonstration by competent clinical, or competent and credible lay, evidence of record that the Veteran incurred or aggravated residuals of torn tendons of the right ankle, claimed as a foot disorder, during active duty. 


CONCLUSION OF LAW

Residuals of torn tendons of the right ankle, claimed as a foot disorder, were not incurred in or aggravated by active service, nor may they be so presumed.  38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2010).







REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

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, and 3.326(a) (2010).

Duty to Notify

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) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice 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.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, those five elements include: (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.  Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to 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.  This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded.

In correspondence dated in August 2005, VA informed the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence.  In May 2007 correspondence, VA informed him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman.

In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision.  Because VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini.  Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error.  Although complete notice was provided to the Veteran after the initial adjudication, the claim was readjudicated thereafter in SSOCs dated in January 2008, March 2009 and March 2011, and the Veteran therefore has not been prejudiced.  The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman.  The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices.

The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996).  The Board finds the VCAA notice requirements have been met in this case.




Duty to Assist

With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA and private medical records, and the Veteran's statements in support of his claim.  The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record.  

The report of a June 2007 VA orthopedic examination includes the statement that the examiner was "unable to state that his [the Veteran's] right ankle injury is due to his ankle sprain in the military, and cannot give a definitive etiology at this time."  This opinion was improper because the VA examiner failed to use the proper standard of whether it was at least as likely as not (50 percent or more likelihood) that the Veteran's right ankle disability was due to or a result of an ankle injury during active duty.  

Another VA opinion with respect to the issue on appeal was obtained in August 2010.  38 C.F.R. § 3.159(c)(4).  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the December 2010 VA opinion obtained in this case is more than adequate, as it is predicated on a reading of the Veteran's claims file and medical records.  It considers all of the pertinent evidence of record, to include the June 2007 VA examination report and the Veteran's service treatment records and statements, and provides a rationale for the opinion offered.  It also uses the correct legal standard.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008).  

The Board finds that all relevant facts have been properly and sufficiently developed 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.


Legal Analysis 

With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal.  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 Court of Appeals for the Federal Circuit (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 the claim.

A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim.  See 38 C.F.R. § 3.303(b).  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997).

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C.A. § 5107(b).

The Veteran contends that he now has a right ankle disability due to a 1967 right ankle injury during active duty.  On his February 2006 Notice of Disagreement, he specifically stated that he wore a cast on his foot and ankle during active duty.  During the June 2007 VA examination, he reported having had right ankle pain ever since the 1967 injury.

The Veteran's service treatment records are negative for complaints, symptoms, findings or diagnoses related to the right ankle.  They show that the Veteran received treatment, including ankle wraps, in July and August 1967 at the Long Beach Naval Station for what was clearly and repeatedly identified as a left ankle, left foot and left leg injury.  The Veteran's August 1967 separation report of medical examination provides that the Veteran's feet and lower extremities were normal on clinical evaluation.  

The report of a May 1968 Reserve annual medical examination provides that the Veteran's feet and lower extremities were normal on clinical evaluation.  A May 1968 re-enlistment report of medical history provides that the Veteran complained of foot trouble, and gives a history of pulled tendon right lower extremity right ankle at the U.S. Naval Base, Long Beach, California.  As the actual, contemporary July and August 1967 treatment records clearly and unmistakably reflect treatment of the left foot, left ankle and left leg, the Board finds that the subsequent May 1968 recitation of past medical history is mistaken to the extent that it reflects a past right ankle injury treated at a Navy facility at Long Beach.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran, in this case while completing a subsequent report of medical history).  Thus, when considered as a whole, the Veteran's service treatment records clearly show 1967 treatment of the left ankle, and no treatment of the right ankle.  

There is no evidence of right ankle arthritis within one year of the Veteran's separation from service.  Because the claimed disability was not seen during service, service connection may not be established based on chronicity in service or continuity of symptomatology thereafter.  38 C.F.R. § 3.303; Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997).  Because right ankle arthritis was not seen within one year of the Veteran's separation from service, presumptive service connection is not warranted.

The Veteran's post-service VA medical records, including the report of a January 1989 Agent Orange Registry Examination, are negative for relevant complaints, symptoms, findings or diagnoses for decades after his separation.  A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).

In the report of the June 2007 VA orthopedic examination, the VA examiner noted that he had reviewed the Veteran's claims file.  He noted that a service record indicated a sprain that was wrapped due to that injury.  The current diagnosis was degenerative joint disease of the right ankle.  The examiner stated that he was asked to provide an opinion as to the etiology of the Veteran's right ankle disability, and whether it was due to or a result of an ankle injury during active duty.  The examiner explained that as there were no records to document the evolution of the Veteran's injury, the osteoarthritis shown on current X-ray could be simply the result of his longstanding wear and tear that could be expected for a 73 year old.  The examiner concluded that he was "unable to state that his [the Veteran's] right ankle injury is due to his ankle sprain in the military, and cannot give a definitive etiology at this time."  

This opinion was improper because the VA examiner failed to use the proper standard of whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's right ankle disability was due to or a result of an ankle injury during active duty.  Moreover, the opinion is based on an inaccurate review of the Veteran's contemporary service treatment records, which do not in fact show any treatment or injury of the right ankle.  Therefore, the Board finds that the opinion is inadequate because it is based in an inaccurate factual premise.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative).

The August 2010 VA medical opinion provides that the examiner reviewed the Veteran's claims file, including his service treatment records, VA treatment records and contentions.  The examiner reiterated that he had reviewed the Veteran's entire Military Medical Record.  The report sets forth the relevant medical history shown in the Veteran's service treatment records, reviews the June 2007 VA examination report, and provides the results of current X-rays.  The August 2010 medical opinion observes that the June 2007 VA examination report refers to a 1967 right ankle injury that was wrapped at that time.  The August 2010 examiner states that although the June 2007 examiner claimed to have reviewed the record, the June 2007 examiner's conclusions that the Veteran's right ankle was wrapped was not supported by his own review of the Veteran's service treatment records.  The August 2010 examiner stated that there was no evidence that the Veteran's right foot or ankle was injured in the military.  The August 2010 examiner stated that it was therefore his opinion that the Veteran's right ankle disability was not affected by military service.  

The Board finds that the August 2010 VA medical opinion constitutes highly probative evidence against the Veteran's claim.  It was based on a review of the Veteran's service treatment records and the June 2007 VA examination report, and is supported by references to them.  This fact is particularly important, in the Board's judgment, as the references makes for a more convincing rationale.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history).

The Board is aware of the Veteran's own allegations.  He is competent to provide testimony and statements concerning factual matters of which he has firsthand knowledge (i.e., experiencing or observing relevant symptoms during or after service).  Barr, supra; Washington v. Nicholson, 19 Vet. App. 362 (2005).  Further, under certain circumstances, lay statements 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, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

However, the Veteran is not competent to diagnose himself with a right ankle disability; state that any right ankle symptoms or problems during service were of a chronic nature to which current disability may be attributed; or state that any current right ankle disability is etiologically related to his service.  A layperson is generally not deemed competent to express an opinion on a matter that requires medical knowledge, such as a diagnosis, the question of whether a chronic disability is currently present, or a determination of etiology.  See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). 

Further, the Board finds that the Veteran's assertions as to having had a right ankle cast during active duty are either less than credible or the result of faulty memory.  See Curry, supra (noting that contemporaneous evidence has greater probative value than history as reported by the veteran).  As noted above, the Veteran's contemporary service treatment records show that he was treated for an injury of the left ankle, not the right ankle.  

Similarly, the Board finds that the Veteran's assertions as to continuity of right ankle symptomatology since service are less than credible.  Id.  While the Board acknowledges that the absence of any corroborating probative medical evidence supporting the Veteran's assertions, in and of itself, does not render the statements incredible, such absence is for consideration in determining credibility.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible).  The Veteran's service treatment records (containing no contemporary records of treatment of the right ankle) and the post-service medical records (containing no evidence of pertinent complaints, symptoms, findings or diagnoses for decades after separation, and containing the August 2010 VA negative medical opinion) outweigh his contentions.  

In sum, the medical evidence demonstrates that the Veteran is not entitled to service connection for residuals of torn tendons of the right ankle, claimed as a foot disorder.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).


ORDER

Service connection for residuals of torn tendons of the right ankle, claimed as a foot disorder, is denied.



____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs