Citation Nr: 1301614 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 06-06 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from September 1966 to January 1970. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. This matter was previously remanded by the Board in March 2009 and January 2011 for further development. FINDINGS OF FACT 1. The Veteran is presumed sound upon entry into active service, and the evidence does not clearly and unmistakably show that a right ankle disability existed prior to active service. 2. A right ankle disability is not related to service or to a service-connected disability. CONCLUSION OF LAW A right ankle disability was not incurred in or aggravated by active service and is not proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by VCAA, 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) (2012). 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in February 2005, prior to the initial adjudication of the claim, and in March 2006. The February 2005 letter informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. A March 2006 letter explained how disability ratings and effective dates are determined. Any timing defect with respect to the March 2006 letter was cured by subsequent readjudication of the claim, most recently in a March 2012 supplemental statement of the case. Neither the appellant nor his representative has raised allegations of prejudice resulting from any error on the part of VA. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009); see also Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. In this case, the record indicates that the RO obtained all information relevant to the Veteran's claim. Service treatment records, post-service private and VA treatment records, and records from the Social Security Administration (SSA) have been obtained. Moreover, the Veteran underwent adequate and probative VA medical examinations in June 2009 (with February 2010 addendum) and June 2011. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). These examinations are found to be adequate for rating purposes as they substantially complied with the Board's March 2009 and January 2011 remands. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). In this regard, it is noted that the examiners reviewed the Veteran's medical history, including his lay testimony concerning his right ankle injuries in service and his right ankle symptoms since that time. The examiners also performed extensive medical examinations and reviewed radiology reports. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that in the recent case of Monzingo v. Shinseki, No.10-922, (Vet. App. Nov. 21, 2012) the Court held that "[t]here is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file." Monzingo at 7 (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)). The Court instead has held that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Id. The Board finds that the 2009, 2010 and 2011 VA medical opinions are adequate under this standard as the examiners provided their judgment on the requested medical questions as well as the essential rationales for their opinions. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227(2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis of Claim 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 (2011). 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 addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (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). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). As the current claim was filed prior to the amendment of 38 C.F.R. § 3.310, the Board will apply the older version of the regulation which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. Thus, in order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). A veteran will be considered to have been in sound condition when examined, accepted and enrolled in service, except as to defects, infirmities, or disorders noted at entrance into service, or where evidence or medical judgment is such as to warrant a finding that an injury or disease existed prior thereto. 38 U.S.C.A. §§ 1111, 1132. Clear and unmistakable evidence that the disability both existed prior to service and was not aggravated by service will rebut the presumption of soundness. VAOPGCPREC 3-2003 (July 16, 2003). The Veteran asserts that a current right ankle disability was either caused or aggravated by a service-connected left ankle disability. The Veteran had active duty service from September 1966 to January 1970. A May 1966 pre-enlistment examination did not note any ankle conditions. As no right ankle condition was noted at enlistment, the Veteran is presumed sound with respect to the right ankle. Service treatment records show that the Veteran was treated for a left ankle sprain in October 1966. A medical board report dated in October 1966 noted residual old sprains and fractures, both ankles with some instability. In June 1968, the Veteran was referred to the orthopedic clinic for evaluation of right shoulder pain. The evaluation noted the Veteran's report of instability of the left ankle, which had been sprained on three different occasions. The report noted that stress inversion x-rays of both ankles were made, and there appeared to be subluxation of both ankles, which appeared to be greater on the right than the symptomatic left ankle. In October 1969, the Veteran was referred for medical board evaluation due to persistent pain in his right scapula. He was referred for a physical evaluation board for disposition. The October 1969 evaluation did not note any right ankle complaints or diagnoses. In December 1969, the physical evaluation board recommended that the Veteran be separated from service based upon him being physically unable to fulfill the purpose of his assignment on active duty. A July 1970 VA examination report addressed several musculoskeletal complaints, including the left ankle, but did not mention the right ankle. Medical records in the claims file show post-service treatment of the right ankle from 2005. A VA treatment note dated in February 2005 noted that the Veteran was status post excision of anterior ankle osteophyte. A March 2005 statement from M.T., who had attended basic training with the Veteran, reported that in October 1966 he observed the Veteran stepping in a hole and then holding both his ankles. M.T. stated he was later told by another servicemember that the Veteran had broken both his ankles and would not complete basic training with his original group. The Veteran had a VA examination in June 2009. The examiner noted that the claims file was reviewed. The Veteran reported that his right ankle became weak and he developed a problem with it in 2005. He reported that he had a fusion in 2005. That did not take, and he had a repeat surgery in 2007. The Veteran reported constant pain since the right ankle fusion in 2005 and that it has become worse since left ankle surgery due to transferring weight to the right side. The VA examiner diagnosed bilateral tibiotalar fusions with evidence of degenerative joint disease. The examiner noted that there was no report of any ankle injury or problems on the enlistment physical. The Veteran was diagnosed with a left ankle sprain during initial training. An orthopedic note dated in June 1968 stated that x-rays of both ankles were positive for subluxation, right greater than left. The examiner stated that it seems likely that the Veteran had some problems with both ankles prior to service, based upon the information in the service treatment records. The examiner opined that the Veteran's left ankle may have been aggravated during service. The examiner noted that there was no evidence of treatment until 30 years later with a left ankle fusion in 1998 and no treatment for the right ankle until almost 40 years later in 2005. The examiner stated that, "because of the lack of evidence to support ongoing problems with his . . . [right] ankle since [the Veteran] left the service until . . . 40 years later, I cannot resolve this issue without resort to mere speculation." In February 2010, the RO requested that the VA examiner review the claims file again and provide a nexus opinion. The examiner noted that the Veteran had been seen by orthopedics in the past for bilateral tibiotalar arthrodesis in the past (multiple revisions on the right). The Veteran had chronic pain, likely secondary to significant subtalar arthritis bilaterally with a TENS unit in place. It was noted that the Veteran was status post removal of hardware from the right ankle an dexploration of right tibiotalar fusion in November 2007 and status post right ankle arthrodesis in May 2006. The examiner stated that she had not changed her opinion. The examiner diagnosed bilateral tibiotalar fusions with evidence of degenerative joint disease. The examiner noted that service treatment records have documentation of pes planus on the enlistment physical, pre-service. The Veteran was diagnosed with a left ankle sprain during initial training. A note from orthopedics dated in October 1966 noted that the Veteran had a history of old sprains and fracture of both ankles with some instability. A note dated in June 1968 stated that x-rays of both ankles were positive for subluxation, right greater than left. The examiner stated that it seems likely that the Veteran had some problems with both ankles prior to service, based upon the information in the service treatment records. The examiner opined that the Veteran's left ankle may have been aggravated in service, but there was no evidence of treatment until almost 30 years later with left ankle fusion in 1996 and no treatment for right ankle fusion until almost 40 years later in 2005. The examiner stated that, because of the lack of evidence to support ongoing problems with the left or right ankle since the Veteran left service until 30 or 40 years later, she could not resolve the issue without resort to mere speculation. Service connection for left ankle disability was awarded in a January 2011 Board decision. As a result, the issue on appeal was remanded for another VA examination in June 2011 to address whether the now service-connected left ankle caused or aggravated the right ankle disability. The 2011 VA examiner indicated that the claims file was reviewed. The Veteran denied any problems with his ankles prior to entering military service in 1966. The Veteran reported to the examiner that, in 1966 in basic training, he sustained a left ankle injury when he stepped in a gopher hole and snapped it. The Veteran recalled being treated with a cast for an indeterminate period of time and eventually resumed basic training after discharge from care of his left ankle injury. The examiner noted that the Veteran "thought" (quotations in original) that he sustained a right ankle injury at the same time of his left ankle injury in basic training. The Veteran recalled sustaining other injuries to both ankles during his active military service but could not recall the specific circumstances of those injuries or the associated treatment. The examiner diagnosed right ankle arthroplasty in January 2011 with limitation of range of motion. The examiner opined that the "right ankle condition is not caused by and is (was) not aggravated by the Veteran's service-connected left ankle condition based upon a reasonable degree of medical certainty and probability." The examiner reasoned that there is insufficient objective medical evidence to establish a nexus between the Veteran's service-connected left ankle and the Veteran's right ankle condition. The examiner stated that he was "unaware of any evidence-based studies in peer reviewed professional journals that have established a nexus between an increased incidence of degenerative changes in an ankle contralateral to an arthrodesed ankle in comparison to the incidence of ankle degenerative changes in the general population." In this case, as noted, no right ankle condition was documented at enlistment. Thus, in order to rebut the presumption of soundness, it must be shown by clear and unmistakable evidence that a right ankle disability clearly and unmistakably preexisted service. VAOPGCPREC 3-2003. The June 1968 orthopedic treatment note indicated that there was subluxation of both ankles but did not specifically note any history of pre-service injury. The June 2009 and February 2010 VA medical opinions found that it was "likely" that the Veteran had problems with both ankles prior to service. The clear and unmistakable evidence standard requires that the result be undebatable. Cotant v. West, 17 Vet. App. 116, 131 (2003); see also Harris v. West, 11 Vet. App. 456, 462 (1998) (holding that physician's unequivocal and uncontradicted opinion regarding the appellant's disability constituted clear and unmistakable evidence that rebutted presumptions of soundness and aggravation). That standard is not met in this case. Therefore, the Board finds that the presumption of soundness is not rebutted. The Board therefore concludes that a right ankle disability did not exist prior to service. Thus, the issue next becomes whether the Veteran's right ankle disability was incurred during active service. See Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed. Cir. 2004) (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). VAOPGCPREC 3-2003. After a review of the medical and lay evidence, the Board concludes that it is not shown that a right ankle disability was incurred in service. Continuity of right ankle symptomatolgy since service is not shown, as the highly probative 2009 VA examination report reflects that the Veteran reported that his right ankle symptoms began in 2005. In addition, while the Veteran reported other orthopedic complaints, including with respect to his left ankle, during a July 1970 VA examination, he did not report any right ankle symptomatology. The preponderance of the evidence is against a finding of a nexus between the current right ankle disability and service. The 2009 examiner clearly stated that a nexus opinion could not be provided without resort to speculation due to the lack of evidence to support ongoing problems with the right ankle for 40 years after service. In short, there currently is no persuasive medical nexus evidence of record indicating the Veteran developed right ankle disability as a result of his service in the military. The Board notes that the absence of evidence constitutes negative evidence against the claim because it tends to disprove that the right ankle disorder was the result of an in-service injury, which resulted in a chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). This lack of objective evidence between the period of active military service ending in 1970 and the first diagnosis of right ankle disability in 2005, is itself evidence which tends to show that the Veteran's current right ankle disability did not have its onset in service or for many years thereafter. This is significant because the Court has determined that 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. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Accordingly, the Board finds that service connection is not warranted on a direct basis. While the Veteran is now diagnosed with degenerative joint disease of the right ankle (see, for example, a December 22, 2005 VA treatment record), the record does not show that arthritis of the right ankle was first manifested to a compensable degree within a year of his separation from service in 1970. Accordingly, service connection for a right ankle disability on a presumptive basis (for right ankle arthritis as a chronic disease under 38 U.S.C.A. § 1112) is not warranted. In order to establish service connection on a secondary basis, there must be medical evidence of a nexus (either on a direct basis or due to aggravation) between a service-connected disability and the disability at issue. Wallin, supra; Reiber, supra. The evidence of record is against a finding that such a relationship exists between the Veteran's service-connected left ankle disability and a current right ankle disability. The 2011 VA examiner concluded that a right ankle disability is not caused or aggravated by a service-connected left ankle disability and provided a clear explanation, including reference to the lack of support for such a finding in the peer reviewed medical literature. The Board has considered the Veteran's lay statements and the lay statement of M.T. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. The Veteran contends that there is a relationship between his right ankle disability and service, or that his left ankle disability led to or aggravated his right ankle disability. According to medical records, the Veteran has reported that he feels that he is favoring his right side because of his problems with his left ankle. The Veteran is competent to testify to his observable symptoms regarding his right ankle. However, the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. The same is true of M.T.'s admittedly second-hand report that the Veteran fractured his right ankle in service. Generally, fractures require specific radiography for confirmation which is outside the scope of lay observation. Nothing in the record demonstrates that the Veteran or M.T. received any special training or acquired any medical expertise in diagnosing, evaluating, or determining causal connections for ankle conditions. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Based upon the foregoing, the Board concludes that service connection for a right ankle disability is not warranted. As there is a preponderance of the evidence against the claim, reasonable doubt may not be resolved in the Veteran's favor. 38 U.S.C.A. § 5107. ORDER Service connection for a right ankle disability is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs