Citation Nr: 1310879 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 07-13 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a left ankle disability, to include arthritis. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from April 1960 to December 1980, including combat service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which, in part, denied service connection for a left ankle disability. Jurisdiction over the Veteran's claim was transferred to the RO in Louisville, Kentucky after the issuance of the February 2006 rating decision. The Veteran testified before the undersigned Acting Veterans Law Judge at a February 2009 videoconference hearing. A transcript of this hearing has been associated with the claims file. In August 2009 and September 2011, the Board remanded the Veteran's claim for additional development. In September 2011, the Board also observed that the issue of service connection for residuals of a shell fragment wound to the right or left calf was raised during the February 2009 hearing, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). As this issue still has not been adjudicated, the Board again refers it to the AOJ for appropriate action. One issue previously remanded by the Board, entitlement to service connection for a chronic left knee disorder, was granted by the VA Appeals Management Center (AMC) in an August 2012 rating decision. To the Board's knowledge, the Veteran has not disagreed with that decision. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). FINDING OF FACT The currently demonstrated left ankle arthritis is shown as likely as not to have had its clinical onset during the Veteran's period of active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his left ankle arthritis is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), 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. The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.App. 122, 128-30 (2000). I. Duties to notify and assist The Board has considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012). The VCAA provides 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. The VCAA also requires VA 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 of the evidence is to be provided by the claimant and which part VA will attempt to obtain on behalf of the claimant. The Board need not, however, discuss the sufficiency of the notification letter sent to the Veteran during the current appeal - or VA's development of his claim - in light of the fact that service connection is being granted for a left ankle disability. Thus, any potential deficiency on the part of VA in complying with the provisions of VCAA has essentially been rendered moot by the Board's complete grant of the service connection benefits sought on appeal. II. Law and Regulations In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic disabilities, to include arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The term 'chronic disease,' whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 Westlaw 628429 (Fed. Cir. Feb. 21, 2013). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d). However, 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet.App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet.App. 563, 567 (1996). III. Analysis As noted, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence or aggravation of disease or injury; and (3) a competent and credible nexus linking the current disability to the in-service disease or injury. See Shedden, supra. During the February 2009 hearing, the Veteran testified that he injured his left ankle while carrying injured service-members "off the battlefield" during combat. See the hearing transcript, pages 12-13. He stated that his ankle would be so swollen that it was difficult to take his boots off or walk. Id. The Veteran's DD-214 indicates that his military occupational specialty (MOS) was a field medical technician, that he served in the Republic of Vietnam, and that he was awarded the Purple Heart Metal, Combat Action Ribbon and Presidential Unit Citation. Based on the Veteran's MOS and his combat decorations, the Veteran is entitled to combat status under 38 U.S.C.A. § 1154(b). An in-service injury has therefore been demonstrated. In addition to his combat injuries, the Veteran testified during the February 2009 hearing that he injured his left ankle while playing basketball during service, and that he has had left ankle problems ever since his in-service injury. See the hearing transcript, pages 5-7. While the Veteran's service treatment records do not document any in-service complaints or treatment for a left ankle problem, the Veteran is competent to report that he experienced pain and swelling in his ankle during service and the lack of contemporaneous medical evidence is not an absolute bar to a veteran's ability to prove his claim of entitlement to disability benefits. Jandreau, supra; Buchanan, supra. The Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing left ankle injuries while serving as a medic in combat conditions and while playing basketball). Barr v. Nicholson, 21 Vet.App. 303 (2007); Washington v. Nicholson, 19 Vet.App. 362 (2005). In this regard the Board finds that the Veteran's testimony regarding left ankle injuries while serving as a medic in combat conditions and while playing basketball during service is competent and credible, and of a very high probative weight, based in significant part on the undersigned's observations of the Veteran's demeanor and presentation at his February 2009 Board hearing. With respect to evidence of a current disability, the record reflects that the Veteran has been diagnosed with arthritis of the left ankle. See a June 2008 x-ray report; see also an August 2005 VA examination report. A current disability has therefore been demonstrated. With respect to the third Shedden element, a nexus linking the current disability to the in-service disease or injury, the Veteran was afforded a VA examination in June 2008 to determine the etiology of his left ankle disability. In a September 2008 addendum opinion, the VA examiner declined to find a link between the Veteran's current ankle disability and service due, at least in part, to the Veteran's failure to describe an in-service left ankle injury during the examination. As noted, the Board has found the Veteran's statements of an in-service left ankle injuries to be competent and credible evidence of a high probative value and weight. Moreover, the Court has held that a medical opinion is inadequate where it is based solely on the absence of confirmatory service treatment records and does not take into account a veteran's reports of his history and symptoms. Dalton v. Nicholson, 21 Vet.App. 23 (2007). As such, the Board affords very little weight of probative value to the June 2008 VA examination report and September 2008 addendum opinion. The Veteran was afforded an additional VA examination in October 2011. After reviewing the Veteran's claims file and conducting a physical examination, the examiner determined that the Veteran did not have a left ankle disability and, as a result, stated that the Veteran's claimed condition was not related to his active duty service. As noted, however, the Veteran has been diagnosed, by a June 2008 VA X-ray, as having arthritis of the left ankle during the appeal period. As the examiner overlooked this critical medical evidence, the examination report and opinion are therefore of no weight of probative value. See Monzingo v. Shinseki, 26 Vet.App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely." (citing Reonal v. Brown, 5 Vet.App. 458, 461 (1993))). In this case, the Veteran has testified that he began experiencing left ankle pain during service which has continued to the present. As noted, the Veteran is competent to report symptoms of left ankle pain and its date of onset and duration. Layno v. Brown, 6 Vet.App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). His complaints of left ankle pain have been diagnosed by health care professionals as arthritis. See Jandreau, supra (lay evidence can be competent to and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). This case meets the three-element test as set forth in 38 C.F.R. § 3.303(a) - (1) the existence of a present disability (the diagnosed left ankle arthritis); (2) in-service incurrence of a disease (the combat injury and basketball injury); and (3) a causal relationship between the present disability and the disease or injury incurred during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The nexus requirement here was established by way of credible lay evidence and competent, circumstantial medical evidence of a left ankle disorder that was diagnosed during service and has continued to the present. Both the lay and medical evidence of record is probative in the instant case. In addition, the Board emphasizes that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran served in combat, and received the Purple Heart Medal for his service as a combat medic, and testifies that that he experienced significant swelling of the left ankle in performing these combat duties. This is evidence of very substantial probative weight and value. Further, at his February 2009 Board hearing, he provided competent and credible testimony of frequent left ankle symptoms since discharge from active service, though worsening over the years. Moreover, 38 C.F.R. § 3.303(a) provides that determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for a left ankle disability, diagnosed as arthritis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for disability of the left ankle, diagnosed as arthritis, is granted. ____________________________________________ STEPHEN L. HIGGS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs