Citation Nr: 1300376 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 08-19 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left ankle disorder, to include residuals of a left Achilles tendon strain. ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to June 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, and an April 2012 Board decision. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that some documents are non-duplicative of those in the paper claims file and are relevant to the issue decided in this matter. Specifically, the Virtual VA file contains evidence of the Veteran's ongoing VA treatment from July 1998 to August 2012. These documents were considered by the RO when the Veteran's claim was previously adjudicated. As such, the Board notes that it considered these records as well as the paper claims file in deciding this case. FINDINGS OF FACT Resolving all reasonable doubt in favor of the Veteran, recurrent left ankle strain is due to an in-service left Achilles tendon strain. CONCLUSION OF LAW Residuals of a left Achilles tendon strain manifested by current left ankle strain were incurred in active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Given the fully favorable disposition of this matter, the Board finds that that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau, supra, 1372 at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that residuals of a left Achilles tendon strain have been present since his discharge from service. The Veteran's service treatment records (STRs) reflect that he was treated in March 1982 following an injury to his left ankle while playing basketball. On examination, there was point tenderness over the Achilles tendon; tendon and bone structures were intact. The diagnosis was strained Achilles tendon left foot. The Veteran was given a splint and crutches and placed on a temporary profile of L3, for his lower extremities. At the time of separation in June 1982, the Veteran waived medical examination. During a February 2006 examination related to the Veteran's application for Social Security Administration disability benefits (for medical disorders other than the issue of this appeal) prior to his February 2007 claim, the Veteran refused to both stand on his left-side toes and heel and perform deep knee bending, stating that his left leg was painful. A review of the post-service medical evidence of record shows that the Veteran underwent ongoing VA treatment for left ankle symptomatology beginning in 2006, with no history of recent injury. An October 2006 VA treatment record shows that the Veteran had a history of left ankle tendonititis. Ongoing treatment included the use of prescription capsaicin cream and oral medication (Tramadol) for pain; he was also fitted for a supportive ankle brace. Throughout the course of the treatment of record, the Veteran consistently reported chronic discomfort or pain in the left ankle. The Veteran was afforded a VA examination in July 2007, during which he reported that he sustained a left ankle injury while in the gym which never improved. He also reported a history of intermittent pain with daily flare-ups in the ankle caused by certain movements, give-way, instability, and weakness. He self-treated his symptoms. An X-ray report revealed no acute findings and no suspicious osseous lesion. The diagnosis was left ankle strain, resolved, and recurrent ankle strain. The examiner commented that although the Veteran had a normal ankle exam on discharge and a basically normal exam that day, the history of a severe sprain with repeat strain does damage the mechanics of the joint such that even when no bony pathology is present, the tendons are stretched, making the ankle prone to re-injury. In his August 2007 notice of disagreement, the Veteran indicated that since his in-service injury, he has experienced severe chronic pain that has intensified over the years, including in the toe and heel area upon touch and when ambulating. He reported use of a cane and brace as well as medicated cream. In the Veteran's June 2008 substantive appeal, he indicated that following his March 1982 ankle injury, the ankle never improved. In an August 2012 VA examination, the Veteran reported that he sustained a sprain to his left ankle in 1982 while playing basketball and experienced pain since that time. Upon examination, the diagnosis was left ankle strain. The examiner opined that it was less likely than not that the current left ankle strain was caused or aggravated by the in-service left ankle injury, as the Veteran's in-service sprain resolved with no evidence of chronicity of disability in the STRs or post-service medical evidence; the examiner also noted that there was no entry of a left ankle complaint in the VA treatment records after service until July/August 2007. In a September 2012 written statement, the Veteran indicated that he experienced pain in the ankle, which became worse over time. He stated that he dealt with the pain because he had to work to support his family. The Board finds that service connection for residuals of a left Achilles tendon strain is warranted. First, there is currently diagnosed left ankle strain. Second, there was an in-service Achilles tendon strain. Finally, the Board finds that the remaining evidence of record supports continuity of symptoms since service. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan, supra. In this case, the Board must consider the Veteran's lay statements indicating that he has experienced residual symptoms of his left ankle strain since service, including intermittent pain. The Veteran is competent to report as to the symptoms he experiences, such as pain, and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan, supra. Moreover, symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, supra, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Given the Veteran's consistent statements, the Board finds that the Veteran's assertions of residual difficulty following the in-service left Achilles tendon strain dating back to service to be credible. The Veteran is currently experiencing strain and intermittent, chronic discomfort in this area, as noted in the medical evidence of record. Thus, the Veteran's statements establish continuity of symptomatology such as to enable a grant of service connection for residuals of a left Achilles tendon strain. The Board acknowledges that the August 2012 VA examiner essentially opined that the Veteran's current left ankle strain disorder is not related to active service because there was no documentation in the medical records of evidence of chronicity following service and no record of left ankle complaints until July/August 2007 in the VA treatment records. The conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991); however, the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this instance, as noted above, the competent and consistent contentions of the Veteran reflect a continuity of symptomatology in the left ankle following the in-service injury and support a finding that these residuals are related to his active service. In addition, the August 2012 VA examiner's opinion is inadequate inasmuch as the rationale provided was based on an incomplete history of the Veteran's symptomatology and does not appear to fully address the Veteran's reports of chronic discomfort/pain. Specifically, the additional VA treatment records received show treatment for left ankle complaints prior to July/August 2007; the SSA records from February 2006 also note left leg pain, and refusal to undergo left-side toe and heel testing. In further support of the Veteran's lay evidence is the July 2007 VA examiner's explanation that a history of a severe sprain with repeat strains damages the mechanics of the joint, stretching the tendons and making the ankle prone to re-injury, even in the absence of bony pathology. This tends to support the Veteran's contentions of recurrent ankle strains. Given the above evidence, and resolving the benefit of the doubt in the Veteran's favor, the Board finds that the criteria for service connection for residuals of a left Achilles tendon strain are met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for residuals of a left Achilles tendon strain is granted. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs