Citation Nr: 1300356 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 07-05 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for hepatitis B. 2. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for psychiatric disorder. 3. Entitlement to service connection for a left ankle disability. 4. Entitlement to service connection for plantar warts of the left foot. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to August 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2002 and March 2006 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which in pertinent part found that new and material evidence had not been received to reopen claims for service connection for anxiety disorder, service connection for hepatitis B, service connection for residuals of left ankle fracture, and service connection for plantar warts. In response to the December 2002 rating decision which addressed the claim to reopen the issue of service connection for anxiety reaction, the Veteran properly filed a notice of disagreement in July 2003. The RO did not immediately provide a statement of case. The issue was once again addressed in the March 2006 rating decision and the RO again denied the claim to reopen. The Veteran properly filed another notice of disagreement in May 2006, the RO provided a statement of the case, and the Veteran timely perfected his appeal. Therefore, as the Veteran initiated an appeal in 2003, the December 2002 rating decision is the decision properly on appeal for the issue of whether new and material evidence has been received to reopen a claim for service connection for anxiety disorder. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.302 (2012). Where a claim has been finally denied by the Board, the Board has a jurisdictional responsibility to determine whether new and material evidence has been submitted regardless of the RO's actions. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). The Board has a similar responsibility where the claim has previously been denied in a final RO decision. Jackson v. Principi, 265 F.3d 136 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of the claim. Barnett; Jackson. Thus, despite the various characterizations of the issue throughout the appeal, the Board must make an independent determination as to whether new and material evidence has been presented to reopen the claim of entitlement to service connection for hepatitis B and service connection for anxiety disorder. The issues of service connection for residuals of left ankle fracture and service connection for plantar warts, left foot, were originally denied in a February 1968 rating decision which was confirmed by the RO in October 1968. The October 1968 decision was unappealed and became final. See 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2012). Ordinarily, new and material evidence would be required to reopen these claims. 38 U.S.C.A. § 5108(West 2002). In this case, however, service treatment records relevant to both issues that existed at the time of the last final denial were received by the RO in October 1983. Under the provisions of 38 C.F.R. § 3.156(c), when VA receives relevant service department records that existed at the time of a prior final decision, VA will reconsider the prior decision without the need for new and material evidence. The Veteran requested a Board hearing at the RO and one was scheduled for December 2009. However, the Veteran failed to report for his hearing. He had previously contacted the RO to reschedule several other hearings and demonstrated that he understood how to accomplish this. No communication was received from the Veteran prior to the December 2009 hearing. In an April 2010 decision, the Board denied the Veteran's appeal of the new and material evidence issues and remanded the left foot and left ankle claims for further development. Subsequent to the April 2010 Board decision, it was revealed that the RO received a statement from the Veteran the following day reporting that he had not been able to report for his hearing because of sickness. He requested that his hearing be rescheduled. The December 2009 statement from the Veteran was not associated with the claims file at the time of the Board's April 2010 decision. Hence, in April 2011, the Board vacated the April 2010 decision and remanded the case for a Board hearing. While on remand, a hearing was twice scheduled and rescheduled at the Veteran's request. On the last occasion, an April 2012 letter informed the Veteran his hearing was scheduled for May 9, 2012, but the Veteran again informed the RO he could not appear for the hearing and requested it again be rescheduled. The undersigned determined in May 2012 that good cause was not shown for further delay and denied the Motion to Reschedule. Hence, the case has proceeded as if the hearing request was withdrawn. See 38 C.F.R. § 20.704(c),(e) (2012). As noted earlier, in April 2010, the Board remanded the left foot and left ankle claims to the RO, via the Appeals Management Center (AMC), in Washington, DC, for additional development. The AMC/RO completed the additional development as directed, continued to deny the claims, and returned the case to the Board for further appellate review. The Board notes the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and there are currently no pertinent records that are not also in the paper claims file. Nonetheless, any further development or adjudication of this matter should take into account this paperless claims file. FINDINGS OF FACT 1. The AMC/RO completed the additional development directed in the April 2010 Board remand. 2. Entitlement to service connection for hepatitis B was denied in an unappealed January 1995 rating decision and new and material evidence was not received within one year of the decision. 3. Evidence received since the January 1995 rating decision does not relate to a basis for the prior denial and does not raise a reasonable possibility of substantiating the claim for service connection for hepatitis B. 4. Entitlement to service connection for a psychiatric disability, diagnosed as anxiety disorder and schizophrenia, was initially denied in a January 1979 rating decision which was confirmed by March 1983 and June 1986 Board decisions; the claim was most recently denied in an unappealed January 1995 rating decision. 5. Evidence received since the January 1995 rating decision does not relate to a basis for the prior denials and is insufficient to raise a reasonable possibility of substantiating the claim for service connection for anxiety disorder. 6. The preponderance of the evidence of record shows no currently diagnosed left foot disorder causally related to the Veteran's active service. 7. The preponderance of the evidence of record shows no current residuals of an in-service left ankle injury. CONCLUSIONS OF LAW 1. The January 1995 rating decision that denied entitlement to service connection for hepatitis B and anxiety disorder is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2012). 2. New and material evidence has not been received to reopen a claim for service connection for hepatitis B. The claim is not reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302, 20.1103. 3. New and material evidence has not been received to reopen a claim for service connection for anxiety disorder. The claim is not reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302, 20.1103. 4. A left foot disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 5. A left ankle disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), The 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, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a veteran 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, 3.326(a) (2012). Under the VCAA, 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; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In claims to reopen, the duty to notify requires that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). In a December 2005 VCAA letter, the Veteran was provided with notice that complies with Kent. In October 2002 and December 2005 letters, prior to the initial adjudication of the claims, the RO notified the Veteran of the evidence needed to substantiate his claims for service connection for anxiety disorder and hepatitis B. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. See 73 Fed. Reg. 23,353(Apr. 30, 2008). Nevertheless, the Veteran was provided with such notice in December 2005. The Veteran was notified of the first three elements of the Dingess notice by the December 2005 letter. While he has not received specific information regarding the disability rating and effective date elements of his claims, as the claims are being denied no additional disability rating or effective date will be assigned. Therefore, the Veteran is not prejudiced by the delayed notice on these elements. See Bernard v. Brown, 4 Vet. App. 384, 394(1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). VCAA notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice was provided after the initial adjudication of the claims, this timing deficiency was cured by the issuance of VCAA notice followed by re-adjudication of the April 2008 supplemental statement of the case (SSOC). Mayfield v. Nicholson, 499 F. 3d 1317 (Fed. Cir. 2007). Therefore, any timing deficiency has been remedied. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and records from various federal agencies. For a finally-denied claim, VA is not required under the VCAA to provide a medical examination unless the claim is first reopened upon receipt of new and material evidence. 38 C.F.R. § 3.159(c)(4)(C)(iii). The Veteran was afforded a VA examination with regard to his left ankle and left foot disability claims. The examiner provided opinions that were supported by reasons and consideration of an accurate history. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria- Claims to Reopen A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id., at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). Service Connection for Hepatitis B The Veteran was last denied entitlement to service connection for hepatitis B in an unappealed rating decision in January 1995. The evidence of record at that time included the Veteran's service treatment records and VA medical center (VAMC) records through 1984, which were negative for any diagnosis or treatment for hepatitis B. The record also contained a letter dated in May 1988, from a private blood bank, which informed the Veteran that the result of his anti-HBc test was positive, meaning he was likely exposed to hepatitis B in the past. The letter stressed that another blood test which was used to detect the hepatitis B virus itself was negative and that unless he received a second letter, the combination of the two tests probably meant that he was not carrying the hepatitis B virus. A second letter was not submitted and the Veteran never asserted that he received one. The record also contained an April 1994 statement in which the Veteran reported that doctors told him there was no way of knowing how long he had had hepatitis B but he was sure he incurred it during service. The RO determined that the evidence did not establish service connection for hepatitis B because the evidence of record did not establish a diagnosis of the hepatitis B virus and there was no competent evidence that hepatitis B was incurred in service. The Veteran did not submit a notice of disagreement or new and material evidence within one year of this decision. It therefore became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.156(b). The subsequently received evidence includes VAMC treatment records from August 1988 to October 2005 and March 2006 to March 2007 as well as a Social Security Disability Determination dated August 1979, which are negative for any findings of hepatitis B or any indication of exposure to risk factors in service. The newly received evidence does not show that the Veteran has current hepatitis B, much less that it was incurred in service. As such, the evidence does not relate to the elements of the claim that were previously found to be absent. It would not trigger additional VA duties to assist under the VCAA, and it does not raise a reasonable possibility of substantiating the claim. Therefore, reopening of the claim is not in order. Shade, 38 C.F.R. § 3.156(a). Claim to Reopen Service Connection for Anxiety Disorder The Veteran was originally denied entitlement to service connection for anxiety disorder in a January 1979 rating decision which was confirmed by the Board's March 1983 and June 1986 decisions. The most recent final denial was in the RO's January 1995 rating decision. The evidence of record at the time of the 1995 decision included the Veteran's service medical records, which were negative for symptoms, treatment, or diagnosis of a psychiatric disorder, and VAMC and private treatment records showing treatment for psychiatric symptoms with varied diagnoses beginning in May 1978. The Board noted that while the Veteran had a currently diagnosed psychiatric disorder, diagnosed variously as anxiety disorder and schizophrenia; but the evidence of symptoms and treatment for such a disorder show it began more than 10 years after service. The Board concluded that the evidence did not show that a psychiatric disorder was incurred in service or manifested to a compensable degree within one year after separation. The January 1995 rating decision was based on a finding that new and material evidence had not been received. The Veteran also did not submit a notice of disagreement or new and material evidence within one year of the notice of the January 1995 decision. The subsequently received evidence includes the VAMC treatment notes from August 1988 to October 2005 and March 2006 to March 2007 as well as a Social Security Disability Determination dated August 1979 that stated the Veteran's long-standing psychiatric disorder began in January 1975. The evidence received shows continuing treatment for a psychiatric disability but fails to show that this psychiatric disability was incurred in service or within one year of separation. As such, while the evidence is new, it is clearly not material and does not raise a reasonable possibility of substantiating the claim. See Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records describing veteran's current condition are not material to issue of service connection and are not sufficient to reopen claim for service connection based on new and material evidence.). The evidence does not relate to the element of the claim that was previously found to be missing, namely, evidence of a link between the current disability and service. It would not trigger additional VA duties to assist under the VCAA, and it does not raise a reasonable possibility of substantiating the claim. Therefore, reopening of the claim is not in order. Shade, 38 C.F.R. § 3.156(a). Therefore, reopening of the claim is not in order. Service Connection Governing Law and Regulation Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to matters requiring medical expertise. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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). Analysis Left Foot The December 1968 VA examination report notes the Veteran asserted he had a stinging wart on the sole of his foot. He claimed service connection for it. Service treatment records dated in December 1966 note the Veteran's complaints of a large plantar wart on the left foot. The examiner recommended a referral to the dermatology clinic if the podiatry clinic was unable to treat it with liquid nitrogen. Subsequent podiatry entries in December 1966 and early-January 1967 indicate the plantar wart resolved with treatment, as the emphasis of the entries addressed the Veteran's bilateral pes planus. The Veteran's August 1967 Report of Medical History for his examination at discharge reflects he gave no indication of a history of a plantar wart, though he did refer to a history of pre-service treatment for his pes planus. The August 1967 Report Of Medical Examination For Discharge noted no abnormality of the feet. The December 1967 VA examination report notes the Veteran's complaint that he had a wart on the left foot and he had a stinging pain when he walked. Physical examination revealed a plantar wart of the left sole. At this point in time, the noted service treatment records were not in the claims file. As a result, a February 1968 rating decision determined there was no evidence of in-service occurrence of the left sole plantar wart. As noted, the Board remanded so the additional service treatment records could be considered by a medical professional. The May 2011 VA foot examination report reflects the examiner conducted a review of the claims file as part of the examination, during which the examiner noted the in-service occurrence of a plantar wart, and a 1984 private medical note that discussed a Morton's neuroma. When the examiner asked the Veteran about his in-service treatment for the wart, the Veteran reported "they did something with a knife." The Veteran reported further that he did not seek further treatment because on an earlier occasion, a needle was used, and it hurt a lot. The Veteran reported intermittent discomfort on the soles of the feet, primarily on the left, but he pointed at the arch area; and, his toes sometimes felt sweaty and hot. He denied any weakness, swelling, stiffness, or redness. He did endorse some fatigability and lack of endurance. The Veteran was not undergoing any current treatment nor was he taking any medication. As for his pain, on a scale of 1 to 10, the Veteran indicated 6/10. The examiner noted the Veteran did not appear to indicate any specific injury to the left foot. Physical examination of the left foot did not reveal any evidence of painful motion, edema, instability, weakness, or tenderness. There were no callosities or skin breakdown, and the Veteran ambulated with a normal gait without any assistive device. Wear patterns indicated slightly more lateral heel wear on the left foot as compared to the right; but the examiner noted it was of questionable clinical significance. The examiner specifically observed that no plantar warts were noted on clinical examination. Other than pes planus, no abnormalities were noted on clinical examination. The examiner noted a January 1967 x-ray of both feet which was read as negative. The Veteran refused additional x-rays, as he did not desire to be exposed to radiation. In order for service connection to attach, there must be evidence of a current disorder or disease. Pain alone is insufficient to prove a claim, as there must be evidence of an underlying disorder associated with the pain. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (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); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). While the December 1967 VA examination noted the presence of a left sole plantar wart, the May 2011 examination did not. The records during the interim also do not show a left foot disability. While the Veteran would be competent to observe a plantar wart, he has not reported such an observation during the current appeal. In the absence of current plantar wart symptomatology or residuals, there is no factual basis for allowing service connection. 38 C.F.R. § 3.303; see generally McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (to satisfy the current disability requirement the claimed condition must be shown at some time at or since the filing of the current claim). In the absence of any evidence of a current disability, the preponderance of the evidence is against the claim. The claim is therefore, denied. 38 U.S.C.A. § 5107(b). Left Ankle A service treatment records dated in April 1967 notes the Veteran's complaint of leg pain. The examiner reported the Veteran's extensive history of podiatric treatment for claimed foot pain. The examiner noted physical examination revealed no weakness or atrophy of the lower extremities. X-rays of both feet were read as normal. A consult report dated two weeks later by the same doctor notes the Veteran's report that he sprained his left ankle due to playing basketball, and a short-leg walking cast was applied. The examiner removed the cast, and physical examination of the left foot and ankle revealed no swelling or ecchymosis, but there still appeared to be slight tenderness over the lateral aspect of the left ankle. The cast was discontinued, and a gelo cast was applied for ten days to prevent swelling while the sprain resolved. The examiner's impression was resolving left ankle sprain. The Veteran was placed on a Physical Profile for four weeks. The August 1967 Report Of Medical Examination For Discharge notes no abnormality of the left ankle. The December 1967 VA examination report notes the Veteran reported he sustained a left ankle fracture in service, and his left ankle was weak. The Veteran asserted further that his left ankle felt as if it would fold when he ran. Physical examination revealed no area of tenderness, swelling, or effusion. Range of motion on dorsiflexion and plantar flexion were normal. A left ankle x-ray showed no gross bone or joint deformity. Documentation in the claims file reflects the Veteran continued to assert he was told he fractured his left ankle in active service. In March 2009, the Veteran reported a "terrible pain" in his left foot. The May 2011 VA examination report reflects the examiner conducted a review of the claims file as part of the examination. The examiner noted history documented in the service treatment records set forth above. The Veteran reported "the doctor told me it was broke," and he was given a cast and crutches. The Veteran denied receiving any current treatment or taking any pain medication. The examination observed the Veteran to walk with a normal gait without any assistive devices. Physical examination revealed dorsiflexion of 0 to 25 degrees, and 0 to 56 degrees of plantar flexion. On inspection, the examiner noted no edema, atrophy, ecchymosis, or any deformity. Muscle strength was 5/5. The examiner noted the shoe wear pattern as noted at the foot examination. The examiner noted a 1978 x-ray of the ankles that that showed an osseous fragment separated from the distal end of the medial malleolus of the right tibia. The examiner noted it evidently represented an old healed trauma. The Veteran refused any additional x-rays. The examiner noted clinical examination of the left ankle was normal. As a result, the examiner opined it is was not at least as likely as not that any left ankle condition had its onset in active service. The preponderance of the evidence of record shows the Veteran sustained a sprained ankle in service, not a fracture. As a lay person the Veteran would not be competent to say that his in-service injury involved a fracture. To the extent the Veteran asserts otherwise, the Board is convinced that his treatment as documented in the service treatment records is more reliable and accurate. Thus, the Board accords far greater weight to the medical evidence of record. In any event, the medical evidence of record shows no evidence of chronic residuals of the sprain. Thus, the preponderance of the evidence is against the claim. 38 C.F.R. § 3.303. In any event the VA examination shows that no current underlying foot disability was identified. Previous treatment records also contain no evidence of a current left ankle disability. The Veteran has provided competent reports of left ankle pain during the current appeal period; but absent an underlying ankle disability, his complaints do not establish a current disability. Sanchez-Benitez. In reaching this decision the Board considered the doctrine of reasonable doubt, where applicable. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER New and material evidence has not been submitted to reopen a claim for entitlement to service connection for hepatitis B. The petition to reopen the claim is denied. New and material evidence has not been submitted to reopen a claim for entitlement to service connection for a psychiatric disorder. The petition to reopen the claim is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for plantar warts of the left foot is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs