Citation Nr: 1305541 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 10-10 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left ankle disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to October 1973, with additional service the Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which in pertinent part, denied service connection for a left ankle disorder. The Board notes that the claim was certified as being on appeal from a November 2008 rating decision which held that new and material evidence had not been received to reopen the previously denied claim of service connection for the left ankle disorder. The Board acknowledges that the Veteran submitted a Notice of Disagreement (NOD) in January 2009 to that decision. The Board also notes that the Veteran previously submitted a statement in July 2008 which his accredited representative identified as an NOD to an October 2007 rating decision's denial of service connection for posttraumatic stress disorder (PTSD) and a May 2008 rating decision's denial of service connection for left foot gout. However, in the NOD itself the Veteran also made references to appealing the left ankle. As this statement was received within the appeal period of the August 2007 rating decision, the Board finds that the Veteran submitted a timely NOD to that decision, and that new and material evidence is not required to reopen this claim. The Veteran provided testimony on the issue of service connection for a left ankle disorder at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2012. A transcript of this hearing has been associated with the Veteran's VA claims folder. Further, as he had the opportunity to present evidence and testimony in support of the underlying service connection claim at this hearing, the Board finds no prejudice to the Veteran in proceeding with an adjudication on the merits of this claim. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Regarding the references to the Veteran wishing to appeal the denial of service connection for PTSD and left foot gout in the July 2008 NOD, the Board observes that service connection for PTSD was granted by a March 2010 decision review officer (DRO) decision. In view of the foregoing, this issue has been resolved and is not on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). With respect to the left foot gout, the Board observes that he did not perfect his appeal as to this claim by filing a timely Substantive Appeal after a Statement of the Case (SOC) was promulgated on this issue in March 2010. See 38 C.F.R. §§ 20.200, 20.302 (2012). The Board also notes that he did not contend this issue was on appeal at the September 2012 hearing. FINDINGS OF FACT 1. All notification and development necessary for the disposition of this case have been completed. 2. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's current left ankle disorder was incurred in, aggravated by, or otherwise the result of his active service. CONCLUSION OF LAW The criteria for a grant of service connection for a left ankle disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Veteran was sent pre-adjudication notice via a May 2007 letter which informed him of what was necessary to substantiate his current appellate claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. Moreover, the May 2007 letter included the information regarding disability rating(s) and effective date(s) mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the September 2012 Board hearing. Nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified outstanding evidence which relates the etiology of his current left ankle disorder to his military service. With respect to the aforementioned September 2012 hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts 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, during the hearing, the VLJ accurately noted the current appellate claim, asked questions to clarify the Veteran's contentions, and summarized the basic requirements of establishing service connection for a current disability. Moreover, the testimony of the Veteran, to include the questions posed by his accredited representative, focused on the elements necessary to substantiate the claim; i.e., the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Finally, 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 either hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Board further notes that the Veteran was accorded a VA medical examination in July 2007 which included an opinion that addressed the etiology of the current left ankle disorder. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). As the July 2007 VA examiner's opinion was based upon both a medical evaluation of the Veteran, and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds it is supported by an adequate foundation. The Board also notes that the examiner's opinion was supported by stated rationale consistent with the evidence of record. No competent medical evidence is of record which specifically refutes the findings of the July 2007 VA examination, and the Veteran has not otherwise identified any prejudice therein. Accordingly, the Board finds that this examination is adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. 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). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Legal Criteria and Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In this case, the Veteran essentially contends that he injured his left ankle while on active duty, has had continuity of symptomatology since service, that he had no problems prior to this injury, and that he had no other injuries to the left ankle. He has also indicated that he was told this injury was just a sprain during service, but that it was later determined to be a "crack." Transcript p. 7. However, he also indicated that no X-rays were taken of his ankle in- or post-service until he underwent his VA medical examination in July 2007. Further, he testified that he did not seek treatment for the left ankle from 1973 to 2007. See Transcript p. 5. The Board acknowledges that the Veteran engaged in combat while on active duty, as evidenced by the fact that he is in receipt of the Combat Infantryman Badge (CIB). The provisions of 38 U.S.C.A. § 1154(b) provides that in the case of any veteran who engaged in combat with the enemy in active military service during a period of war, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (Citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board notes, however, that it does not appear the Veteran has contended the injury occurred while engaged in combat. He testified at his hearing that the injury occurred during a helicopter "self-jump" in the "LZ." Transcript p. 3. Although he stated it occurred while in Vietnam, he did not state he was engaged in combat at that time. Nevertheless, the Board notes that there is official record of a left ankle injury. Specifically, service treatment records dated in April 1969 show a left ankle sprain, treated by ace bandage and hot soaks. Subsequent records dated in May 1970 note that the Veteran reported he twisted his left ankle 10 days earlier. It was noted that X-rays revealed no bony injury. In short, there is no dispute the Veteran injured his left ankle while on active duty. The issue is whether the current left ankle disorder, diagnosed as degenerative joint disease/arthritis, is the result of this injury. The Board notes that while the Veteran is competent to describe the injury and symptomatology thereof, as specific medical testing such as X-rays is required to diagnose this condition then competent medical evidence is required to resolve this case. Further, this finding is supported by the fact the evidence shows the Veteran to have multiple medical conditions of the left lower extremity to include his service-connected cold injury residuals and nonservice-connected left foot gout. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Nevertheless, his lay contentions can serve as the basis for a later medical diagnosis and opinion. In this case, the Board reiterates that while the Veteran has intimated he sustained a fracture ("crack") of his left ankle during service, and that no X-rays were conducted at that time, the May 1970 service treatment records specifically state that X-rays revealed no bony injury. Moreover, X-rays conducted on both ankles as part of the July 2007 VA examination noted, in pertinent part, that no acute fracture was identified. Thus, there is actually competent medical evidence against the Veteran sustaining a fracture ("crack") of his left ankle while on active duty. The Board also observes that no subsequent left ankle complaints were demonstrated in the service treatment records. In fact, his feet and lower extremities were clinically evaluated as normal on service examinations conducted in June 1972, April 1973, and his June 1973 separation examination. He did not indicated any left ankle problems on the concurrent Reports of Medical History. Further, the Veteran himself acknowledged at his hearing that he did not seek any treatment for his left ankle from 1973 to 2007. See Transcript p. 5. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (Affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). The Board further observes that the July 2007 VA examiner opined, in pertinent part, that the Veteran's ankles were less likely as not (less than 50/50 probability) caused by or a result of condition treated in service. In support of this opinion, the examiner stated that the condition was most likely due to natural aging process and genetic predisposition of this individual. In other words, the examiner found that the current disability was not of the type that it would be caused by injury. For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran's current left ankle disorder was incurred in, aggravated by, or otherwise the result of his active service. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. In making this determination, the Board was cognizant of the holding in Reeves, supra, that in the case of a combat veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. However, as already stated, it does not appear the Veteran is specifically identifying the injury as having been incurred in combat. Moreover, there is no causal relationship demonstrated by the acknowledged in-service injury and the current disability. ORDER Service connection for a left ankle disorder is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs