Citation Nr: 1301655 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 06-09 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran had active service from January 1960 to June 1967 and from June 1968 to January 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In March 2010, the Veteran presented testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing was placed in the claims file and was considered in appellate review. In a November 2010 action, the Board reopened the above claim finding that new and material evidence had been submitted and remanded the claim for additional development. The Board again remanded the claim for additional development in May 2012. The requested development having been completed, the matter again is before the Board. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. FINDING OF FACT A right ankle disability was not shown in service and is not otherwise related to the Veteran's active service; and, arthritis of the right ankle was not manifested to a compensable degree within one year of the Veteran's separation from active service. CONCLUSION OF LAW A right ankle disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 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). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran 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 Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in May 2003 and January 2011 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The January 2011 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issue on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claim that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claim. Indeed, based in part on the evidence elicited during the Board hearing the Veteran's claim for a right ankle disability was reopened, based on the finding that he had submitted new and material evidence. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced state service organization and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of entitlement to service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private treatment records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claims, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, pursuant to the Board's November 2010 remand directives the Veteran was provided a VA examination in February 2011. At that time, the examiner found that the Veteran did not have a current right ankle disability. Pursuant to the Board's May 2012 remand directives, the Veteran was afforded another VA examination in June 2012. At that time, the examiner considered the Veteran's claims of right ankle problems beginning in service and the service treatment records showing treatment for the right ankle during that service; however the examiner opined that the Veteran's current right ankle disability was less likely as not related to his in-service history of right ankle sprain. As will be discussed in greater detail below, the examiner's opinion was based on review of the claims file and available medical records, the Veteran's reported history, his current symptoms, and a physical examination. The Board, therefore, finds the June 2012 VA examination report to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the January 2011 notice letter, subsequent association of treatment records, the February 2011 and June 2012 VA examinations, and the subsequent readjudication of the Veteran's claim, the Board finds that there has been substantial compliance with its November 2010 and May 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a) (2012). In this case, the Veteran was not diagnosed with arthritis of the right ankle in service or within one year of separation from service. As such, entitlement to service connection on a presumptive basis is not warranted. To establish a right to compensation for a present disability on a direct basis, 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, the Veteran claims that he has a right ankle disability that was caused or permanently aggravated by his military service. The Veteran contends that right ankle problems began during military service and have continued to the present. The Veteran's service treatment records include no complaints of or treatment for right ankle problems during the Veteran's first period of active service. During his second period of active service, however, the service treatment records include multiple treatments for right ankle problems. In April 1975, the Veteran was treated for sharp pain and swelling of the right ankle. The Veteran denied any specific injury and was diagnosed with tendonitis. Several days later the Veteran again sought treatment for worsening swelling in the lower leg and right ankle. He reported tenderness for the previous 8 days and no relief from wrapping the ankle and taking aspirin. The assessment was myalgias. In June 1975, physical examination of the lower extremities was normal. In September 1978, the Veteran complained of swelling in the right ankle and both knees. The Veteran reported falling the previous night and injuring the right ankle. Following marching the next morning, the Veteran noted increased swelling and burning of the ankle. On examination, range of motion was full, but with noted swelling. The assessment was right ankle sprain. The ankle was splinted and the Veteran prescribed crutches, ice, and elevation of the ankle. In addition, he was put on a physical profile for approximately 6 weeks with no running, and no marching until the final 2 weeks of the profile. During this profile period, in October 1978 the Veteran denied any ankle pain, but did note significant swelling and burning. The Veteran's prior treatments were continued for an additional week. Two days later the Veteran reported increased swelling that had started to cause pain. X-rays showed no evidence of fracture. Two weeks later, however, the Veteran reported no further pain or swelling. Physical examination was unremarkable and the assessment was resolved right ankle sprain. In a subsequent August 1979 Report of Medical History, the Veteran reported a history of foot pain and the examining medical professional noted the treatment for a swollen right ankle and right ankle sprain. In both cases, however, the examiner indicated that there were no complications and no sequelae and contemporaneous examination of the lower extremities was normal, with specific notation of normal strength and range of motion in the bilateral ankles. In October 1980, the Veteran reported a history of foot trouble, but specifically noted only a history of gout in the left big toe and occasional cramping in the legs secondary to being on his feet all day. The record does not indicate any discussion of any ongoing ankle problems. After service, a June 1997 private treatment record noted arthritis of the bilateral knees, feet, and elbows, but did not mention the right ankle. Additional private records note a generalized diagnosis of arthritis. The Veteran also was treated for radiculopathy symptoms attributable to a back disability that affected the right lower extremity. A September 2004 VA medical record noted that the Veteran had "Arthritis since 1979 to 1980." The record did not list the specific joint or joints affected by the arthritis. In support of his claim, the Veteran submitted a May 2006 letter from his private physician that stated, in relevant part, that the Veteran had degenerative joint disease of the right ankle and that "As likely as not, these conditions are continuation of conditions developed during his military service." As noted above, the Veteran was afforded a VA examination in February 2011. The examiner noted review of the claims file and medical records. The Veteran reported that he sprained his right ankle in 1978 while playing volleyball and was seen twice in service for the problem. The Veteran denied any subsequent ankle sprains, but did state that the ankle was weak due to diabetic neuropathy. (As an aside, the Board notes that the Veteran is not service connected for diabetes mellitus.) Examination of the right ankle was normal and the Veteran denied any current symptoms. As such, the examiner concluded that no right ankle diagnosis was warranted or etiology opinion necessary. The Veteran was afforded an additional VA examination in June 2012. The examiner noted review of the claims file. The examiner outlined the 2006 private physician's letter, the Veteran's in-service treatment for his ankles in 1975 and 1978, the normal examinations of the ankles in 1979 and 1980, and the February 2011 VA examination report. Based on the evidence of record, the examiner diagnosed arthritis of the bilateral feet and ankles with limitation of motion in the bilateral subtaler joints and ankles. The examiner noted, however, that there was no evidence of residuals of a right ankle sprain. The examiner concluded that it was less likely as not that the Veteran's current right ankle disability was related to his in-service history of right ankle sprain. As to rationale, the examiner noted that stress x-rays showed no evidence of any residual from the in-service ankle sprain and that at the time his problems came on slowly after an injury. The examiner concluded that his in-service injury more likely exacerbated his symptoms of gout than resulted in ligamentous laxity of the ankle. The examiner noted that the Veteran already was service connected for gout in other joints, but that there was no confirmed diagnosis of gout in the right ankle and that while a diagnosis of gout could not be confirmed or dismissed based solely on x-rays, x-rays of the ankles were symmetrical. The examiner also indicated that complications from diabetes and peripheral neuropathy affected the Veteran's right ankle. Thus, the Veteran has a current right ankle disability. The crucial question, therefore, is whether the Veteran's right ankle arthritis was incurred in or is otherwise related to his military service. Based on the evidence outlined above, the Board concludes it was not. In reaching that determination, the Board finds the June 2012 VA examination report of significant probative value. The examiner's opinions were based on an interview of the Veteran, his reported medical history, and physical examination. Further, a complete and thorough rationale was provided for the opinions rendered. Specifically, the examiner concluded that it was less likely than not that the current right ankle arthritis was related to the Veteran's in-service right ankle sprain and associated problems. The Board notes that the examiner attributed some of the Veteran's in-service right ankle problems to symptoms of gout; however, the examiner concluded that the evidence of record did not establish a current diagnosis of gout in the right ankle and determined that the evidence of record was insufficient to warrant joint aspiration with visualization of uric acid crystals. In support of that conclusion, the Board notes that the Veteran's private physician has treated the Veteran for right ankle arthritis, but not for gout of the right ankle. As such, the Board concludes that the examiner's overall conclusions are fully explained and consistent with the evidence of record. By contrast, the Board finds the opinion expressed in the May 2006 private physician's letter of very limited probative value. Although the opinion did express a link between the Veteran's current right ankle arthritis and his military service, the private physician did not provide any rationale or scientific basis for his conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that most of the probative value of a medical opinion comes from its reasoning and an opinion that contains only data and conclusions is not entitled to any weight). In reaching that decision, the Board has considered the Court's holding in Savage v. Shinseki, 24 Vet. App. 259 (2011) that in certain circumstances VA has an obligation to seek clarification of a private medical examination report. The Board finds that the circumstances in this case are not of the type requiring a remand for clarification, as contemplated by the Court. In that regard, the Board observes the Court specifically noted that "our holding is limited to those instances in which the missing information is relevant, factual, and objective - that is, not a matter of opinion - and where the missing evidence bears greatly on the probative value of the private examination report." Id at 270. In this case, there is no objective or factual deficiency in the May 2006 private physician's letter. Instead, the letter simply fails to include any rationale for the opinions expressed therein. As such, a remand for clarification is unnecessary. Finally, the Board has considered the Veteran's contentions that his current right ankle problems are related to his military service. In that regard, the Board acknowledges that the Veteran can attest to observed physical symptoms, such as ankle problems and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). That said, there is no evidence of record that the Veteran has any medical expertise. As to non-expert or lay opinions with regard to diagnoses or a relationship of a condition to service ("nexus"), whether such opinions are competent evidence depends on the question at issue and the particular facts of the case. Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit stated as follows: "[l]ay 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). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id at n.4. Also of note is that the Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking that decision together with the explanation in Layno, leads the Board to the conclusion that whether a non-expert nexus opinion or diagnosis is competent evidence depends on the complexity of the particular question and whether a nexus opinion could be rendered based on personal observation. Here, the question of whether his current right ankle disability is due to a 1978 right ankle sprain from which the Veteran fully recovered during service, or any other incident of service, is a complex question and answering that question is not possible from mere observation with the five senses. The Board finds such a conclusion particularly appropriate in this case, given the complex nature of the Veteran's lower extremity symptomatology, which also involves complications from nonservice-connected conditions such as diabetes mellitus and peripheral neuropathy. As such, the Board ascribes far more weight to the conclusions of the June 2012 medical professional who concluded that the Veteran's current right ankle disability was not related to his in-service right ankle problems, specifically residuals of right ankle sprain. In summary, there is no objective evidence of right ankle arthritis during service or for many years after service. Additionally, the most probative medical evidence of record, the June 2012 VA examination report, explicitly concluded that it was less likely than not that the Veteran's current right ankle disability was related to his military service. As the May 2006 private physician's opinion letter included no rationale for the expressed conclusions, the Board finds the letter's conclusions of extremely limited probative value. While the Veteran certainly is competent to report intermittent and recurring right ankle problems from service, given the complexity of his lower extremity problems and his lack of demonstrated medical expertise, the Board concludes that his opinions are afforded significantly less probative weight than the June 2012 VA examiner's opinion. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. ORDER Entitlement to service connection for a right ankle disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs