Citation Nr: 1237603 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 10-26 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES Entitlement to service connection for a left elbow disability. Entitlement to service connection for a left ankle disability. ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1985 to December 2007. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky which, in pertinent part, denied service connection for a left elbow disability and a left ankle disability. In a June 2010 substantive appeal (VA Form 9), the Veteran did not appeal the issue of service connection for a left elbow disability. However, by issuing a December 2011 supplemental statement of the case and certifying the appeal in June 2008 to the Board for both left elbow and left ankle disabilities, the RO has taken action to indicate that such a filing has been waived. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (holding that the filing of a timely substantive appeal may be waived, and that, where the RO takes actions to indicate that such filing has been waived (for instance by certifying the appeal), the Board has jurisdiction to decide the appeal.). Therefore, that Board has jurisdiction to decide the appeal for a claimed left elbow disability. FINDINGS OF FACT 1. The Veteran does not have a currently diagnosed left elbow disability. 2. The Veteran does not have a currently diagnosed left ankle disability. CONCLUSIONS OF LAW 1. A left elbow disability was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. A left ankle disability was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). VA has met its duty to notify and assist the Veteran in this case. The Veteran acknowledged receipt of a preadjudicatory August 2007 VCAA notice letter which informed him of the evidence necessary to substantiate his claim, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible. The letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was afforded a VA examination in February 2008 to address his service connection claims; however, a medical opinion was not provided in conjunction with this examination. 38 C.F.R. § 3.159(c)(4) (2012). The Board finds that an additional VA examination or opinion is not necessary in order to decide the claim for service connection for a left elbow and left ankle disability. VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). Because the weight of the medical evidence already demonstrates that the Veteran does not have a currently diagnosed left ankle or left elbow disability, there is already competent medical evidence to decide this claim, and there is no duty to provide an additional VA medical opinion. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d). The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, the holding in Charles was clearly predicated on the existence of evidence of both an in-service injury or event and a current diagnosis. Simply put, the duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, VA treatment records, VA examinations, and the Veteran's lay statements. The Veteran has not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. B. Law and Analysis In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 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) (2012). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Left Ankle Disability After reviewing all the evidence of record, lay and medical, the Board finds that the more competent, credible, and probative evidence of record demonstrates that the Veteran does not have a currently diagnosed left ankle disability. Service treatment records show that the Veteran was treated for a left ankle sprain in March 1986. However, the Board finds that the left ankle sprain, treated in service, was not chronic and resolved without residuals. In that regard, the Veteran did not receive continuing treatment for a left ankle sprain in service, and service treatment records reflect no further complaints related to the left ankle for over 11 years, between the initial injury in 1986 until the time of a separation examination in September 2006. The Veteran also did not have any left ankle complaints at the time of a March 1988 periodic examination or May 1988 reenlistment examination completed two years after the initial March 1986 left ankle injury, nor were there any complaints related to the left ankle noted in periodic examinations completed in March 1993, July 1995, and August 1998. A September 2006 separation examination does reflect that the Veteran reported bilateral knee and ankle pain and that he had a slight deformity to the left ankle due to a prior sprain in service. A post-service February 2008 VA examination showed mild soft tissue swelling in the left ankle; however, the Veteran was not diagnosed with a left ankle disability at the time of examination. The VA examiner instead provided a diagnosis of "left ankle sprain without residual." While ossification (the formation of bone or bony substance) posterior to the talus was noted on x-rays of the left ankle, joint spaces were preserved and there was no fracture or bony displacement seen. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1332 (30th ed. 2003) (defining ossification). The impression given was of "no radiographic abnormality." Thus, the Board finds that a left ankle disability was not diagnosed at the time of a February 2008 VA examination. VA treatment records dated from 2008 to 2011 do not otherwise reflect any treatment or diagnoses related to the Veteran's claimed left ankle disability and only contain one note a past medical history of left ankle pain. For these reasons, the Board finds that while the Veteran has some mild left ankle symptoms, he does not have a currently diagnosed chronic left ankle disability related to such symptoms for which service connection can be granted. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). Although the Veteran has been seen for a left ankle sprain in service, based on the lack of treatment for 11 years subsequent to his in-service injury and the February 2008 VA examiner's assessment showing that the left ankle sprain had resolved without residual; the Board finds that the Veteran does not have a currently diagnosed left ankle disability. While the Veteran has reported left ankle pain at his separation from service and in conjunction with his present claim, the United States Court of Appeals for Veterans Claims has held that pain alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted. See Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999). Accordingly, the Board finds that the weight of the evidence does not demonstrate that the Veteran has a currently diagnosed left ankle disability. The Veteran contends that he has current symptoms of left ankle pain, and the Board finds that he had credibly reported his symptoms of pain; however, the Board finds that the Veteran does not possess the medical training and expertise necessary to render a medical diagnosis as it relates to his pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also 38 C.F.R. § 3.159(a)(2). Absent a current diagnosis related to the Veteran's complaints of left ankle pain; the Board finds that service connection is not warranted. Left Elbow Disability After reviewing all the evidence of record, lay and medical, the Board also finds that the more competent, credible, and probative evidence of record demonstrates that the Veteran does not have a currently diagnosed left elbow disability. Service treatment records do not reflect any treatment or complaints relating to the left elbow in service. The Veteran, however, submitted a August 2007 claim, dated prior to his separation from service stating that he has current bilateral elbow pain. Thus, the Board finds that the Veteran is shown to have complaints of left elbow pain in service, just prior to separation. Despite the Veteran's current claim in relation to his left elbow, during a February 2008 VA examination the Veteran only reported symptoms related to the right elbow. The Veteran was diagnosed with lateral epicondylitis based on physical findings shown for the right elbow on examination; however, he is not shown to have a current left elbow disability. While the Veteran contends in a July 2009 notice of disagreement that he was diagnosed with "bilateral" elbow epicondylitis during a February 2008 VA examination, the Board finds, upon review of the examination report, that the diagnosis of lateral epicondylitis rendered during the examination was referable only to findings shown in the right elbow, and not the left. There were no complaints or objective findings referable to the left elbow at the time of the February 2008 VA examination. VA treatment records dated from 2008 to 2011 do not do not otherwise reflect any complaints or treatment for a left elbow disability. For these reasons, the Board finds that the Veteran does not have a currently diagnosed left elbow disability for which service connection can be granted. While the Veteran contends that he has current symptoms of pain in the left elbow, and he is credible to report his symptoms, the Board finds that the Veteran has not provided competent evidence relating his pain to a diagnosis of lateral epicondylitis as he does not possess the medical training and expertise necessary to render a medical diagnosis. See Jandreau v. Nicholson, supra; 38 C.F.R. § 3.159(a)(2). Additionally, given the lack of findings as to any injury to the left elbow in service or findings that indicate any current symptoms or complaints referable to the left elbow , at the time of a February 2008 VA examination or in current VA treatment reports, the Board finds that the absence of contemporaneous medical evidence symptomatology referable to the left elbow is a factor which also tends to weigh against the credibility of the Veteran's more recent statements made in conjunction with his claim for compensation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board emphasizes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. § 1110, 1131; Degmetich 104 F. 3d 1328. The Board finds that the weight of the evidence does not demonstrate that the Veteran has a currently diagnosed left elbow disability. In summary, absent credible, competent, and probative evidence of a current left elbow disability, the Board finds that service connection is not warranted. C. Conclusion The Veteran is not shown to have currently diagnosed left ankle or left elbow disabilities. Therefore, the Board concludes that the preponderance of the evidence is against finding that the Veteran has a left ankle or elbow disability etiologically related to active service. Because the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a left ankle disability is denied. Service connection for a left elbow is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs