Citation Nr: 1237666 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 07-04 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a bilateral ankle disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The appellant, a member of the United States Army Reserve since August 1988, served on active duty for training (ACDUTRA) from April 1989 to August 1989 and from July 1999 to August 1999. She has also purportedly served on various other periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied the appellant's claim for service connection for a bilateral ankle condition. The appellant has filed and perfected a timely appeal as to that issue. This appeal also initially included the issue of entitlement to service connection for status post fusion surgery at L3-S1. Service connection for that disability was granted by the Board in a November 2011 decision and remand. Accordingly, that issue is no longer for the Board's consideration. The issue of the Veteran's entitlement to service connection for a bilateral ankle disorder was remanded for further claims development. The Board is satisfied that the development action directed in its remand has been performed and is prepared to proceed with its de novo consideration of the issue remaining on appeal. The issue of entitlement to an increased disability rating for status post lumbar spine fusion surgery at L3-S1, currently rated as 10 percent disabling, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran served on a period of ACDUTRA, while participating in a Primary Leadership Development Course (PLDC), from July through August of 1999. 2. The evidence is in relative equipoise as to whether the Veteran sustained a right ankle injury in July 1999, during her period of ACDUTRA. 3. The Veteran has been diagnosed with right ankle instability, status post reconstructive surgery which has been shown as being etiologically related to her July 1999 injury during ACDUTRA. 4. The Veteran did not sustain a left ankle injury during a period of ACDUTRA, INACDUTRA, or other period of active duty service; nor does the evidence show a current left ankle disability. CONCLUSIONS OF LAW 1. Right ankle instability, status post reconstructive surgery, was incurred in service. 38 U.S.C.A. §§ 101(24), 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). 2. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Insofar as the issue of the Veteran's entitlement to service connection for a right ankle disability, the Board has considered whether VA has fulfilled its notification and assistance requirements under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. § 3.159. Nevertheless, given the favorable action taken below as to that issue, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time. Indeed, any such action would result only in delay. Regarding the Veteran's claim for service connection for a left ankle disability, letters provided to the Veteran in July 2005 and December 2011 provided the Veteran with notice regarding what information and evidence is needed to substantiate her claim, as well as the respective responsibilities of the Veteran and VA in obtaining such information and evidence. The December 2011 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The Veteran's claim was last adjudicated in a June 2012 supplemental statement of the case. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, Army reserve records, private treatment records, VA examination reports dated November 2005 and May 2010, and September 2011 VA examination addendum report. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting medical literature and medical and professional opinions to support her claim. Therefore, she was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis A. General Service Connection Principles In order to establish service connection, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active military, naval or air service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (emphasis added); 38 C.F.R. § 3.303(a). A disorder may also be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). "Active military, naval, or air service" includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24) (2012); see Mercado-Martinez v. West, 11 Vet. App. 415 (1998); see also Paulson v. Brown, 7 Vet. App. 466, 469-70 (1995) ("an individual who has served only on active duty for training must establish a service-connected disability in order to achieve veteran status"); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). In other words, when a claim is based on a period of ACDUTRA or INACDUTRA, there must be evidence that the individual concerned died or became disabled during the period of ACDUTRA or INACDUTRA as a result of a disease or injury incurred or aggravated in the line of duty. In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service" and the claimant would not achieve veteran status for purposes of that claim. See 38 U.S.C.A. § 101 (2)-(24); Mercado-Martinez, 11 Vet. App. at 419. Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In order to prevail on the issue of service connection, there must be: (1) medical evidence of a current disability; (2) medical evidence, or, in certain circumstances, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). See also Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). B. Appellant's/Lay Contentions In statements dated June and July of 2005, and in her February 2007 substantive appeal, the Veteran asserted that she sustained a right ankle injury while participating in a PLDC in August 1999. In further support of her claim, the Veteran has provided an August 2006 statement from M.L.N., Staff Operations and Training Supervisor for the Veteran's reserve unit. In this statement, M.L.N. recalled that the Veteran did injure her right foot during PLDC in August 1999. She stated further that prepared and processed appropriate documentation for ongoing care for the Veteran's right ankle injury, which included reconstructive surgery performed at medical facilities at the Naval Station in Newport, Rhode Island. M.L.N. stated further that she has observed the Veteran to be experiencing ongoing weakness in her right ankle. Other buddy statements received in August 2006, from C.J.M. (Senior Human Resource NCO) and J.D.S. (Senior Human Resources Sergeant) attest further as to the Veteran's right ankle injury. No specific allegations as to a left ankle or foot injury are raised in the record, either by the Veteran or any other individuals. C. Service Connection for a Bilateral Ankle Disorder Upon review and consideration of the evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran is entitled to service connection for a right ankle disability, but is not entitled to service connection for a left ankle disability. In that regard, the Board finds that the evidence is in relative equipoise as to the question of whether the Veteran sustained a right ankle injury during a period of ACDUTRA. Post-service medical evidence shows that the Veteran's right ankle disability is related to her injury during ACUTRA. Regarding the Veteran's left ankle, however, the preponderance of the evidence is against the claim as there is no evidence in the record of an in-service injury to that ankle, nor is there any medical evidence of a current left ankle disability. Consistent with the Veteran's assertions and the buddy statements discussed above, the service personnel records show that the Veteran did participate in a two week long PLDC from late July through early August of 1999. Service treatment records dated August 1999 indicate that the Veteran was treated at that time for "raw areas" on her feet following a road march. An October 1999 memorandum issued by the Veteran's reserve unit reflects that the Veteran sustained an injury in August 1999 while on "annual training orders." The memorandum also identifies M.L.N. as the person of contact concerning the Veteran's injury, which is also consistent with the assertions raised by M.L.N. in her statement discussed above. A February 2000 service treatment record reflects that the Veteran underwent a right ankle reconstruction surgery. Although the Board notes that the service personnel and service treatment records prior to February 2000 do not explicitly identify a right ankle injury, the Board finds that those records, particularly when reviewed in their proper context relative to the Veteran's February 2000 right ankle surgery, are nonetheless consistent with the assertions raised by the Veteran and in the various lay statements outlined above. Overall, the evidence is in relative equipoise as to whether the Veteran did sustain a right ankle injury during a period of ACDUTRA. Hence, it must resolve reasonable doubt as to that question in the Veteran's favor. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Civilian treatment records show that, following her February 2000 right ankle surgery, the Veteran received treatment at Naval Healthcare New England through September 2003. The other evidence in the record, however, does not indicate any regular treatment for her right foot and ankle since that time. The evidence of record is silent as to any treatment for the Veteran's left ankle or foot, nor does it document any subjective complaints by the Veteran of any problems in her left ankle or foot. During a November 2005 VA examination, the Veteran continued to report a right ankle injury sustained during leadership classes. Although she stated that she reported to sick call and received immediate treatment, she reported that she continued to experience right ankle pain upon her return home from training. The Veteran also reported a treatment history that is essentially consistent with that documented in her records and discussed above. Regarding her symptoms at the time of the VA examination, she reported ongoing and intermittent throbbing pain in her right ankle which caused her to walk with a limp. She also reported weakness, stiffness, and instability in her ankle. Once again, no specific complaints regarding the left foot or ankle were reported. An examination of the right ankle confirmed the presence of tenderness on palpation along the outside of the ankle. Clicking in the ankle was audible to the examiner. Overall, the examiner diagnosed unstable right ankle, status post ankle reconstruction surgery. The examiner noted that there was no evidence in the claims file concerning a right ankle injury during leadership training. He concluded, nonetheless, that the Veteran's right ankle disability was more likely than not related to her service given her lengthy period of reserve service. The aforementioned buddy statements, particularly when considered in conjunction with the remaining service personnel records and service treatment records, support the Veteran's assertion that she sustained a right ankle injury during PLDC training in August 1999. Although these records do not expressly identify that the Veteran sustained a right ankle injury per se, they do nonetheless show that the Veteran sustained some injury during her PLDC training. Given the Veteran's generally credible assertions and further service treatment records which reflect that she underwent a right ankle reconstruction only six months later in February 2000, the Board finds that the balance of evidence is at least in equipoise as to the question of whether the Veteran did sustain a right ankle injury during a period of ACDUTRA. As set forth in the November 2005 VA examination report, the Veteran has a current diagnosis of right ankle instability status post reconstruction surgery. As noted above, the examiner noted that his review of the evidence did not reveal the occurrence of a right ankle injury during training, yet still provided a positive nexus opinion for the right ankle disability given the Veteran's long period of reserve service. Although the Board finds the length of the Veteran's reserve service as being unavailing as to the question of etiology for her right ankle disability, as noted above, the Veteran is being afforded the benefit of the doubt that she sustained a right ankle injury during a period of ACDUTRA. In view of the foregoing evidence and analysis, the Veteran is entitled to service connection for right ankle instability, status post reconstructive surgery. By contrast, in the absence of any evidence that the Veteran sustained a left foot or ankle injury during a period of ACDUTRA, INACDUTRA, or other active duty service, and any evidence that she has a current left foot or ankle disability, the Veteran is not entitled to service connection for a left ankle disability. Although the Board remains mindful of the benefit of the doubt doctrine, that doctrine is not applicable in connection with the Veteran's claim for service connection for a left ankle disability because the preponderance of the evidence is against that claim. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Service connection for right ankle instability, status post reconstructive surgery, is granted. Service connection for a left ankle disorder is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs