Citation Nr: 1314217 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 11-00 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for residuals of a right heel injury. ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1980 to November 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction over the case was subsequently transferred to the RO in Winston-Salem, North Carolina. The Board reopened the claim for service connection for residuals of a right heel injury in June 2011 remanded the merits of the issue for further development. The case has since been returned to the Board for further appellate review. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims processing system (Virtual VA) electronic file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue decided herein. FINDING OF FACT The Veteran has been shown to have a scar of the right ankle area related to an in-service injury. CONCLUSION OF LAW A scar of the right ankle area was incurred in service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.159 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO did provide the appellant with notice in February 2010 prior to the initial decision on the claim later that month. Moreover, after the notice was provided, the Veteran's claim for service connection was readjudicated in a statement of the case (SOC). Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating the claim and notifying claimant of such readjudication in the statement of the case). In addition, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the February 2010 letter of the evidence necessary to substantiate a claim for service connection and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim being decided herein. The Veteran and his representative have not identified any outstanding evidence pertinent to the claim. The Veteran was also afforded a VA examination in August 2011 in connection with his claim for service connection for residuals of a right heel injury. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the VA examination and medical opinion obtained in this case are adequate, as they are predicated on a full reading of the Veteran's claims file. The examiner considered all of the pertinent evidence of record, to include the statements of the appellant, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Law and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may also be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The disorder at issue is not considered a chronic disease as enumerated for VA compensation purposes. As such, the provisions for continuity of symptomatology after discharge are not for application in this case. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Veteran contends that he has residuals of an in-service right heel injury that have been present since service. He specifically complains of chronic pain in the right heel area. The Veteran's service treatment records show that he was treated in December 1982 for a laceration to the heel of the right foot/ankle following a slip on marblestone stairs. On initial examination, the subcutaneous tissue was clear, and the flap-type laceration was unable to be sutured. He was treated with a topical antiseptic and sterile dressings. On examination two days later, the wound was noted to be an avulsion wound to the back of the right ankle (also described in the same note as laceration to heel of right foot/ankle). There was redness with bleeding, but it was clean without sign of infection. He was treated with a topical antibiotic and sterile dressing. During his October 1984 separation examination, the Veteran denied having a medical history of foot trouble, swollen or painful joints, broken bones, and bone, joint or other deformity. He reported "don't know" to a history of skin diseases and tumor, growth, cyst, or cancer; however, he also reported at that time that he had a "knot or bump . . . above [his] privates" with no notation of a foot problem. On examination, the feet, lower extremities, and skin were found to be "normal." A review of the post-service medical evidence shows that the Veteran has been treated for a number of nonservice-connected disabilities, including gout with related multiple joint pain, and pes planus with reports of chronic pain. See, e.g., VA treatment records April 2007; June 2009; August 2009; November 2009 (past medical history list); Sandhills Orthopaedic and First Health of the Carolinas May 2008 private treatment records. A November 2009 VA treatment note shows that the Veteran reported having pain in his arches, ankles, and back of the right heel. He also indicated that he had lacerated his right heel while in service. He further reported that he had outside therapy for multiple foot and ankle problems in the past. In a November 2009 written statement, the Veteran's mother reported that the Veteran told her of his fall down the stairs during service resulting in the cut to his heel that tore a ligament. She stated that he never stopped having pain over the years following the injury. A February 2010 VA treatment note shows that the Veteran reported sustaining an injury to his right ankle during service. In particular, he stated that a tendon was cut and that the wound sutured. He also reported that there was chronic pain in the area. On examination, there was right Achilles tenderness. In response to the Board's June 2011 remand, the Veteran was afforded a VA examination in August 2011 during which he recounted his in-service slip on the stairs in 1982 (specific date unknown). He stated that the injury resulted in lacerated "tendons" for which he received "stitches and [was] bandaged up." He also reported having intermittent pain in the heel and ankle area with soreness, tenderness, and itching. On examination, there was no visible scar on the right heel, but there was a scar from the injury on his right posterior calf at the area of the Achilles tendon. That scar was measured to be approximately 2.5 centimeters by 2 centimeters. There was no acute bony abnormality of the right foot. The Veteran stated that the heel was painful, but the observable scar was located at the area of the Achilles tendon. When palpating the area, the Veteran stated it was painful to touch. The examiner diagnosed the Veteran, in relevant part, with status post trauma to right ankle area with residual pain and scarring; no current heel scar. The examiner also noted the Veteran's multiple nonservice-connected comorbidities, to include chronic pain syndrome, lower back degenerative disc disease, multiple joint pain, gout, and carpal tunnel syndrome. The examiner opined that it was less likely than not that the Veteran's right heel pain (diagnosed as status post trauma to right ankle area with residual pain and scarring) was caused by or due to service. In so finding, the examiner noted that the Veteran's description of the injury and treatment did not correlate with the notes in the claims file, i.e. no ligament was cut, repaired, or sutured at the time of the incident. The examiner further indicated that the scar was noted, not on the heel, but on the posterior calf at the area of the Achilles tendon. Radiographs of the right foot and ankle show no osseous abnormalities. Upon careful review of the record, the Board finds that service connection for a scar of the right ankle area is warranted. The record shows that the Veteran sustained an in-service laceration to the right heel area (documented as both to the back of the right ankle and heel of right foot/ankle). He also has a current diagnosis of status post trauma to right ankle area with residual pain and scarring. In rendering that diagnosis, the August 2011 VA examiner specifically identified a scar on his right posterior calf at the area of the Achilles tendon. The August 2011 VA examiner further indicated that the scar was a result of the in-service laceration in 1982. Therefore, the Board concludes that the Veteran is entitled to service connection for a scar of the right ankle area. The Board has considered whether the Veteran is entitled to service connection for any other residuals of his right heel injury in service. However, the August 2011 VA examiner found that the right heel pain outside of the scar area was less likely than not due to service, based on a review of the record, to include treatment of the injury and the Veteran's reports at that time. While the examiner noted the Veteran's other current physical disorders, no other residuals due to the injury were identified. The Board finds that this entire opinion is highly probative, as the examiner reviewed the claims file, took a history from the Veteran, and considered the inconsistencies between the reported history and the record. With the available information, the examiner concluded that the scar was a result of the in-service injury, but that the right heel pain and other disorders were not related to the injury. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board has also considered the Veteran's and his mother's lay statements of record, to include the report of chronic right heel pain and pain in the area of the scar. Laypersons are certainly competent to report as to the observable symptoms, such as an onset of his symptoms and their history. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the August 2011 VA examiner considered the Veteran's reports of pain during the examination. To the extent that the Veteran complained of right foot, heel, and/or ankle pain outside of the scar area, the record shows that this symptomatology is related to nonservice-connected disorders of an unrelated pathology (e.g., Veteran's complaints of joint pain due to gout outside of VA examination setting). Moreover, to the extent that the Veteran contends that there are residuals other than the painful scar, to include any such residuals as a result of laceration of tendons or from sutures, the Board finds that such general statements are not credible. His service treatment records specifically indicate that there was only a laceration of the skin and that there were no sutures. Thus, there is affirmative evidence showing otherwise. Based on the foregoing, the Veteran is entitled to service connection for residuals of a heel injury, as manifested by a scar of the ankle area. There are no other residuals for which service connection is warranted. ORDER Entitlement to service connection for residuals of a right heel injury is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs