Citation Nr: 1301752 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-26 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a left ankle disorder. 2. Entitlement to service connection for a right ankle disorder. 3. Entitlement to service connection for venous insufficiency in the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from September 1964 to September 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which denied all of the benefits sought on appeal. In May 2011, the Veteran provided testimony at a Board hearing at the RO in Las Vegas before the undersigned Veterans Law Judge. A transcript of the hearing is in the claims folder. The Board notes that the Veteran also provided testimony regarding venous insufficiency in his right lower extremity and there are medical findings of varicose veins in his right lower extremity of record. As such, the Board finds that an inferred claim for entitlement to service connection for venous insufficiency in the right lower extremity has been raised. This matter has not yet been addressed by the Agency of Original Jurisdiction (AOJ), and therefore, the Board does not have jurisdiction over it. The matter is referred back to the AOJ for appropriate action. As the current appeal was processed as part of the Virtual VA system, any existing electronic records have been taken into consideration of this appellant's case. The issue of entitlement to service connection for venous insufficiency in the left lower extremity is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A chronic right ankle disorder was not present during active duty service and the current evidence is against a finding of diagnosed or underlying right ankle disorder. 2. A chronic left ankle disorder was not present during active duty service and the current evidence is against a finding of diagnosed or underlying left ankle disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a left ankle disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the notice required under the VCAA and under Dingess by a letter mailed in April 2008. Subsequently, in December 2008, the RO adjudicated the Veteran's claims in the first instance. The Veteran filed a timely appeal as to this December 2008 rating decision. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to his service-connection claim for bilateral ankle disorder. Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, identified VA and private treatment records, and his lay statements of argument have been obtained. Pertinently, the Veteran has not indicated that any other VA treatment reports relevant to his bilateral ankle claim currently exist, nor has he requested that the VA attempt to obtain any other private treatment records. The Veteran was afforded a VA examination in conjunction with his bilateral ankle claim in August 2010. The report of the examination reflects that the examiner reviewed the Veteran's complete claims file, to include his service treatment records and past medical history. The examiner recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board therefore concludes that the examination is adequate for adjudication purposes. See 38 C.F.R. § 4.2. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions with respect to the issues on appeal have been met. 38 C.F.R. § 3.159(c)(4). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of these issues has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103. He has retained the services of a representative, and testified before the undersigned at the May 2011 hearing. Service Connection Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Essential to the award of service connection is the first Hickson element, existence of a disability. Without it, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) [noting that service connection presupposes a current diagnosis of the claimed disability]; see also Chelte v. Brown, 10 Vet. App. 268 (1997) [observing that a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection]. Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Here, the Veteran seeks entitlement to service connection for right and left ankle disorders. The Veteran sought treatment for right and left ankle problems during his period of service. He reports that he was hospitalized at least three times to treat problems associated with his ankles. An October 1964 hospital treatment note shows that the Veteran was hospitalized for eight days to treat symptoms of redness, swelling, and tenderness in his right ankle. He presented with a history of swelling and tenderness in his right ankle. A diagnosis of cellulitis in the right ankle was provided. It was noted that this condition did not exist prior to enlistment and was incurred during the line of duty. During his hospital stay, the Veteran was treated with bed rest, with elevation of his ankle, and with hot soaks. He responded well to the treatment and was discharged to duty with limited profile for three days and permanent profile to wear tennis shoes. A January 1965 treatment note shows that the Veteran presented with a history of swelling and tenderness in his left ankle. A provisional diagnosis of arthritis was provided. That diagnosis was later revised to arthralgia in the left ankle based on negative x-ray findings. The Veteran was hospitalized for three days and treated with bed rest, hot soaks, and aspirin. Subsequent service treatment records show no further complaints, treatment or diagnosis for any right or left ankle problems. The report of an August 1968 examination prior to separation shows that the Veteran's lower extremities were evaluated as normal. The Veteran underwent a VA examination in August 2010. Therein, the Veteran denied any current symptoms associated with his ankles, to include pain, instability, stiffness, weakness, and decreased motion. Physical examination revealed no objective findings of abnormalities in either of the Veteran's ankles. He had full range of motion without pain in both ankles. There was no evidence of tenderness or swelling on examination. The examiner did observe the presence of varicose veins in both legs that was worse on the left. X-ray examinations of the ankles were normal. No left ankle disability was diagnosed in either ankle. Rather, the examiner noted normal examinations of both ankles. While the examiner noted the Veteran's history of right and left ankle problems during service, the VA examiner concluded that the Veteran does not have any ankle problems at the present time and has not had any ankle problems since the ankle problems noted during his period of service. In May 2011, during his Travel Board hearing, the Veteran testified that has no current orthopedic problems associated with either of his ankles. See hearing transcript, page 13-14. Rather, he provided testimony regarding the continuity and progression of his symptoms associated with his current diagnosed venous insufficiency in both legs. As noted above, in order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the two. See Hickson, 12 Vet. App. at 253. Furthermore, the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). With respect to crucial Hickson element (1), the Board finds that the weight of the evidence of record does not demonstrate that any right and left ankle disorders currently exist or have existed at any time during the course of the appeal. In this respect, the service and post-service records are absent of any chronic physical disorder relating to the Veteran's left and right ankles. The service treatment records include normal x-ray findings of left ankle and there is no documentation showing treatment for a chronic left or right ankle conditions. While the Veteran did receive treatment for right ankle problems in 1964 and for left ankle problems in 1965, no ankle problems or disabilities were observed during his 1968 discharge examination. The post-service records also lack any evidence demonstrating chronic right or left ankle problems. The August 2010 VA examination does not note any complaints or objective findings associated with either ankle. The Veteran had full range of motion without reports of pain in both ankles and x-ray films revealed no ankle abnormalities. There has been no diagnosis of right or left ankle disability during the pendency of this claim. The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C.A. § 1110; see also Hickson, 12 Vet. App. at 253, and Brammer, 3 Vet. App. At 225. Here, the record unequivocally shows that the Veteran has not been diagnosed with any disability involving the Veteran's right or left ankles at any time during the course of the appeal. Moreover, the Veteran testified that he has not received treatment for any current orthopedic problems involving his ankles. Rather, the Veteran's reported current symptomatology involves the venous insufficiency in his lower extremities, which is addressed in the remand portion below. Thus, despite the in-service treatment for right and left ankle problems, the evidence does not demonstrate that the Veteran has a current right or left ankle disability (other than venous insufficiency) at any time during the course of the appeal. In the absence of any diagnosed right and left ankle disorders, service connection may not be granted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. Accordingly, Hickson element (1) has not been met as to the Veteran's claims, and they fail on this basis alone. The benefits sought on appeal are denied. ORDER Entitlement to service connection for a right ankle disorder is denied. Entitlement to service connection for a left ankle disorder is denied. REMAND The Veteran seeks entitlement to service connection for venous insufficiency in the left lower extremity. Unfortunately, based on a review of the record, the Board finds that additional development is needed prior to adjudication of the Veteran's claim. In particular, a VA examination is needed. The Veteran claims that his current diagnosed venous insufficiency in his left lower extremity first manifested during his period of service. Service treatment records shows that the Veteran was hospitalized to treat symptoms of swelling and tenderness in his right ankle in October 1964. He was hospitalized again to treat for similar symptoms his left ankle in January 1965. During both hospitalizations, the Veteran was treated with bed rest, with elevation of his feet, and with hot soaks. The Veteran asserts that these symptoms of swelling and tenderness in his ankles mark the onset of his current diagnosed venous insufficiency in his lower extremities. The Veteran denies seeking any subsequent treatment for these symptoms in his lower extremities during the remainder of service and until the mid-1980's. However, the Veteran reports that he continued to keep his feet elevated at night which provided him with relief from recurrent symptoms of swelling and tenderness. He reports that his symptoms were not significant and did not really bother him again until the mid-1980s. The Veteran reports that he was able to find relief from his symptoms during that 15-20 year time span by elevating his feet at night. The Veteran asserts that the venous insufficiency in his left lower extremity has progressively worsened over time since it was first manifested by symptoms of swelling and tenderness in his ankles during his period of service. See May 2008 statement in support of the case as well as May 2011 Travel Board hearing transcript. Post-service VA and private treatment records show diagnosis of severe chronic venous insufficiency with varicose veins in the left lower extremity. A June 1996 private treatment note shows that the Veteran has had varicosities for the past 10 years. Subsequent VA treatment records note a reported history of venous insufficiency related to a 1975 motor vehicle accident where the Veteran's left leg was injured and that injury resulted in varicose veins in the left leg. It appears that RO based its December 2008 denial of the Veteran's claim for venous insufficiency in the left lower extremity on his reported history of the 1975 injury. The Board finds it pertinent that the 1975 injury to the left leg does not explain or account for the similar findings of severe venous insufficiency in the Veteran's right leg. The similar symptomatology that affects both legs suggests that the Veteran's venous insufficiency in his left lower extremity might not be wholly attributable to the 1975 injury. The record also contains a December 2009 private medical statement from Dr. R.V.B., in which he opined based on the Veteran's reported history of lifting heavy bombs while onboard ships during his period of service, the Veteran's severe chronic venous insufficiency did not exist prior to his enlistment into service. The Veteran contends that the in-service symptoms of swelling and tenderness in his lower extremities are similar to his symptoms later associated with his venous insufficiency and that have progressively worsened over time. The Board observes that lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Since the medical evidence of record is insufficient, VA should supplement the record by seeking an advisory opinion, or ordering a medical examination to support its conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the Board finds that a remand is needed to provide the Veteran with a VA examination in order to obtain a medical opinion that addresses his contention that the in-service lower extremity symptoms of swelling and tenderness mark the onset of his current diagnosed venous insufficiency in the left leg. Prior to any examination sought, VA should ask the Veteran to identify any outstanding records of pertinent VA and private treatment, and an attempt should be made to obtain such records. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran for his assistance obtaining any outstanding records of pertinent VA or private treatment and associate them with the claims folder. 2. After all the available records have been associated with the claims folder, schedule the Veteran for a VA examination to determine the etiology of his venous insufficiency in the left lower extremity. The entire claims file, to include a complete copy of the REMAND must be made available to the examiner designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. After examining the Veteran and reviewing the relevant evidence in the claims file, the examiner should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's venous insufficiency in his left lower extremity (1) had its onset during his period of service as marked by the symptoms of swelling and tenderness in his left ankle shown in 1965, or (2) is otherwise related to his period of service. In rendering the requested opinion, the examiner should specifically consider and discuss the service and post-service medical evidence as well as the Veteran's lay statement. The examiner should clearly outline the rationale for any opinion expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 3. Thereafter, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If the report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. 4. After completion of the above and any additional notice or development deemed necessary, re-adjudicate the claims remaining on appeal. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental SOC and be afforded an opportunity to respond before the case is returned to the Board for further appellate review, if otherwise in order The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs