Citation Nr: 1312740 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-46 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for loss of front teeth. 2. Entitlement to service connection for residuals of a distal fibular injury. ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to July 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veteran's Affairs (VA) regional office (RO) located in Winston-Salem, North Carolina. The Board notes that the Veteran originally filed a claim for service connection as for a "left leg" disability. See Claim, October 2009. The RO recharacterized the claim as for a left ankle fracture. Based on the medical evidence of record, and so as to avoid confusion as to whether this matter involves a claim for a left leg versus left ankle disability, the Board has recharacterized the Veteran's claim from entitlement to service connection for a left ankle fracture to entitlement to service connection for residuals of a left distal fibular injury. The Board notes that because the Veteran's claim is being granted herein, there is no prejudice to the Veteran in such recharacterization. The RO issued a statement of the case (SOC) in this appeal in September 2010, which covered the issues of entitlement to service connection for a left ankle fracture, left rib fractures, and loss of front teeth. In response, the Veteran submitted a timely VA Form 9, Substantive Appeal, in November 2010. On that form, he checked the box indicating that he had read the SOC and was only appealing the following: "Request my front teeth bridge be reinstalled." However, in the space provided below that section of the form, the Veteran argued that a particular Airborne Division clinic should have on record that he was provided "a cast on [his] left leg, ankle, and foot," and that a particular entity should have a record of the parachute crash in which he sustained that injury. VA has a duty to construe Veterans' pleadings liberally. In this case, the Board finds that where it is ambiguous as to whether the Veteran intended to perfect his appeal of the left leg disability, the Board will presume that he did, and take jurisdiction of the appeal. Because, however, the Veteran did not mention the injury to the ribs, the Board finds that the Veteran expressly did not intend to perfect his appeal with respect to that issue. On the November 2010, substantive appeal, the Veteran requested a Board hearing at the central office in Washington, DC, which hearing was scheduled for January 17, 2012. Subsequently, a written request to cancel the hearing was received by VA on January 5, 2012 (although it was not apparently routed to the Board until after the time of the scheduled hearing). Based thereon, the Board finds that the Veteran's request for a Board hearing is considered withdrawn, and this matter is ready for decision. At the outset of his claim, the Veteran had executed a power of attorney in favor of the North Carolina Division of Veterans Affairs (NCDVA), a duly accredited veterans service organization (VSO). In December 2010, however, NCDVA revoked its power of attorney prior to the certification of the appeal. The Veteran has not executed a power of attorney in favor of a different VSO. Therefore, the Veteran no longer has representation before VA and proceeds pro se. FINDINGS OF FACT 1. In November 2010, before the Board promulgated a decision, the Board received a letter from the Veteran's then appointed representative in which it was expressed that any reference to the claim of entitlement to service connection for loss of front teeth was not appeal related. The Board construes this as an intent to withdraw the issue from appellate review. 2. The Veteran is shown by a preponderance of the most probative evidence of record to have residuals of a left distal fibular injury that are etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of an appeal of his claim of entitlement to service connection for loss of front teeth have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012). 2. The Veteran has residuals of a distal fibular injury that was incurred in or aggravated by service. See 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's claim for service connection for loss of teeth is dismissed herein, and the claim for residuals of a distal fibular injury is being granted herein, as discussed below. As such, the Board finds that any error related to the VCAA is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Dismissal The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2012). A May 2010 rating decision denied entitlement to service connection for the loss of the Veteran's front teeth. Ultimately, the Veteran filed a notice of disagreement and a substantive appeal. On his November 2010 appeal, the Veteran requested that his front teeth bridge be reinstalled. Subsequently, in a November 2010, VA Form 646, Statement of Accredited Representative in Appealed Case, before the Board promulgated a decision on this matter, the Veteran's representative submitted a written request to withdraw the Veteran's claim from appellate consideration (clarifying that the Veteran did not intend to appeal the service connection claim, but rather, he simply sought treatment at the outpatient clinic for his dental bridge). Hence, there remains no allegation of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the claim of entitlement to service connection for the loss of the Veteran's front teeth; therefore, the claim is dismissed. III. Service Connection The Veteran seeks service connection for a left leg disability, which he contends is the result of a parachute landing in the spring of 1964 in the trees. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a 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 (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. Id. To establish a right to compensation for a present disability, 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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran served on active duty from August 1963 to July 1966. He claims that he has residuals of "left leg" injury, recharacterized herein as a left distal fibular injury, that he incurred hitting a pine tree during a nighttime parachute jump at Ft. Bragg around the spring of 1964. See Claim, October 2009. He reports that he was treated with a cast, and that he also lost his front teeth requiring a bridge. The Veteran's service treatment records reflect that a February 11, 1964, x-ray of his left ankle showed no evidence fracture. A February 20, 1964, service treatment record reflects that a cast was removed, but does not specify the anatomical location. Also, his service dental records reflect that in February 1964, his front top teeth (numbers seven to ten) were extracted and a gold bridge was inserted. The Veteran's service personnel records reflect that he served as a radio telecommunications operator with Company D, 1st Airborne Battle Group, 325th Infantry in early 1964 at Ft. Bragg, and that he is the recipient of a Parachute Badge. The Board also acknowledges that his service treatment records indicate that he performed parachute jumps in service, as a May 1966 record reflects that he landed in trees and was treated for a contusion to his right hand. The Board acknowledges that there is no service treatment record in the claims file specifically noting treatment for a left leg or left ankle injury due to a parachute jump in 1964. Nevertheless, the Board finds that the above documentary evidence of the Veteran's parachute jumping in service, and of his treatment in February 1964 for his left ankle and front teeth (as an x-ray of his left ankle indicates some complaints or treatment), and of a cast having been removed later in February 1964, all tends to corroborate his reported history of injuring his left leg/ankle in a parachute jump around the spring of 1964 and being treated with a cast. While the Board acknowledges that the February 1964 x-ray showed no left ankle fracture, the Board notes that the x-rays of the Veteran's left tibia and fibula (and left ankle) taken in connection with his March 2010 VA examination revealed residuals of a distal fibular injury, which is not necessarily inconsistent with the lack of a left ankle fracture shown in the February 1964 x-ray. Furthermore, the Board notes again that the Veteran's service treatment records show that shortly after the Veteran's left ankle was x-rayed, he requested that a cast be removed, which is consistent with his report of having his left leg/ankle casted for treatment after the injury. The Board adds that no other musculoskeletal complaints or treatment are documented around that time except for the x-ray ordered for the Veteran's left ankle. Certainly, the Veteran is competent to report having fallen into trees during a nighttime parachute jump and being injured and his left leg/ankle being treated with a cast. Furthermore, the Board adds that having sustained a musculoskeletal injury while parachuting at night is more than conceivable. See, e.g., 146 Cong. Rec. H9912, H9917 (2000). Therefore, the incurrence of an in-service injury to his left leg/ankle is conceded in this case. The Board acknowledges certain April 1999 private treatment records from the Cape Fear Medical Center noted by the RO that reflect that the Veteran was involved in a motorcycle accident. The Board notes, however, that none of these records show any left lower extremity injury except for one record noting that the Veteran had abrasions on his left leg. Rather, these records show that the Veteran underwent surgical treatment for a right knee fracture as a result of the accident. The Board also acknowledges a March 2004 VA treatment record noted by the RO that reflects that the Veteran had a history of a motorcycle accident in 1999 (transposed in error as 1998) reflecting that he had injured his right knee in the accident. Also, the Veteran's VA treatment records reflect that he has been followed for complaints of arthritic pain and diagnosed DJD, but no specific notations are shown relating to his left leg or ankle. See, e.g., January 2006. The Veteran was provided with a VA examination in March 2010 relating to his claim (see also March 2010 addendum). The Veteran reported to the examiner a history in service of making a night parachute jump with combat equipment in the spring of 1964 and hitting a large tree and injuring his left leg. The Veteran reported that he experienced pain in his left ankle daily, and that his condition had existed since the in-service injury. Physical examination of the Veteran's left knee was normal, including ranges of motion within normal limits. The left ankle, however, revealed abnormal movement, with dorsiflexion to 20 degrees (of 20) and plantarflexion limited to 35 degrees (of 45). The examiner noted that a May 2009 private treatment record from Dr. O. showed diagnosed degenerative joint disease, but did not specify which joint in particular (specifically diagnosed as "degenerative osteoarthritis"). The examiner also acknowledged that the Veteran's June 1966 separation examination report was noncontributory. An x-ray of the Veteran's left ankle revealed remodeling of the distal fibula supporting sequellae of remote, healed injury with mature callus, and an x-ray of his left tibia and fibula revealed a subcortical irregularity of the distal left fibula that may be the result of old trauma. The examiner recorded a diagnosis of residuals of a left leg fracture, and opined that it was at least as likely as not related to service, and at least as likely as not specifically related to performing a parachute jump while on active duty. The examiner explained that his opinion was based on the Veteran's statements as well as the radiographs confirming an old, remote fracture. In a March 2010 addendum, the examiner clarified that although the parachuting injury had occurred 46 years prior to the examination, residuals could remain indefinitely depending on the severity of the injury. In light of all of the above, the Board finds that a preponderance of the evidence is in favor of granting service connection for residuals of a distal fibular injury. As shown above, the Board concedes that the Veteran incurred an in-service left leg/ankle injury while parachuting, VA examination revealed residuals of old distal fibular trauma, and the VA examiner opined that the Veteran's condition is at least as likely as not related to an in-service parachuting injury. The Board emphasizes that there is no medical opinion of record that contradicts the opinion of the VA examiner, which is based on a review of the claims file and an interview and examination of the Veteran. Also, the examiner provided an adequate rationale for his conclusions based on the medical findings. The Board is cognizant that it may not go on a fishing expedition for negative evidence, or draw its own medical conclusions in this case. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In summary, the preponderance of the evidence is in favor of granting the Veteran's claim for service connection for residuals of a left distal fibular injury. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). ORDER The appeal of entitlement to service connection for loss of front teeth is dismissed. Service connection for residuals of a left distal fibular injury is granted. ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs