Citation Nr: 1314743 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 04-36 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for the residuals of right ankle sprain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran had active military service from June 1973 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2007, the Veteran provided testimony before the undersigned Veterans Law Judge in Columbia, South Carolina. A transcript of that hearing was produced and has been included in the claims folder for review. In December 2007, the Board reopened and remanded the Veteran's claim for service connection for residuals of a right ankle sprain. The Board again remanded the Veteran's right ankle claim in April 2010 and June 2012. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. FINDING OF FACT The Veteran does not have a current right ankle disability that is related to service. CONCLUSION OF LAW Residuals of a right ankle sprain were not incurred in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In March 2005, prior to the May 2005 rating decision on appeal, the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate the claim, and the relative duties upon himself and VA in developing his claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran was specifically notified of how ratings and effective dates are assigned by way of a March 2006 letter from the RO pursuant to Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With respect to the May 2007 Travel Board hearing, the United States Court of Appeals for Veterans Claims (Court) held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge 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 May 2007 hearing, the Veterans Law Judge enumerated the issue on appeal. Information was obtained regarding onset of the Veteran's claimed right ankle disability, his current symptoms, and any causal link between the claimed right ankle disability and his active service. The Veteran testified as to having injured his ankle in service, his current symptomatology and that he had learned to live with the problem over the last 30 years. The Veteran has not asserted that there was any prejudice with regard to the conduct of the hearing. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted or sought. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. Following the hearing, the case was remanded on several occasions to obtain additional VA medical records, including a September 2010 VA x-ray report, Social Security Administration records, and a VA examination to provide information as to whether the Veteran currently has a right ankle disability that is related to service. The Board notes that the Veteran's service treatment records, VA treatment records, and Social Security Administration (SSA) records have been obtained. The Veteran has been provided VA medical examinations. He has provided testimony at a Board hearing. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. Neither the Veteran nor his representative has indicated that there is any additional obtainable evidence that should be obtained to substantiate the claim. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), the RO substantially complied with the Board's remand orders, and the duty to assist has been satisfied. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claim. II. History Service treatment records (STR) include a July 1975 complaint of a sprained right ankle. The Veteran was treated with ice, hot packs, and Tylenol. The next day, examination revealed minimal ecchymosis and swelling. The impression was first degree sprain. The Veteran was placed on a limited duty profile that prevented him from crawling, stooping, jumping, running, prolonged sanding, or marching. He was also instructed to refrain from strenuous physical activity. A July 1976 separation examination marked the Veteran's feet and lower extremities as normal. In April 1982 the Veteran submitted a VA Form 21-526 in which he indicated he sprained his ankle in July 1973 and in July 1975. On VA examination in July 1982 the Veteran reported a left ankle injury during service. The examiner did not describe the Veteran's right ankle. X-rays revealed that both ankles were normal. When afforded a VA examination in April 2006 the Veteran reported pain in the lumbar spine, right knee and bilateral shoulders. The Veteran made no reference to his right ankle and he was noted to have a normal gait. In April 2007, SSA determined that the Veteran had been disabled since December 2003, due to a cerebrovascular accident and diabetes mellitus. At his May 2007 hearing the Veteran testified that he injured his right ankle while playing basketball in Germany. He reported pain, swelling and stiffness in the right ankle and indicated that he had had right ankle disability ever since service. The Veteran stated that he was not receiving treatment for his right ankle. He said that he knew how to take care of it. When it swelled up, he just stayed off of it. On VA examination in September 2010, the Veteran reported that he experienced recurrent pain and swelling in his right ankle. He also reported that he had no pain in his ankle except when walking for long distances. Physical examination revealed pain on range of motion during dorsiflexion and plantar flexion. An x-ray revealed what might be mild diffuse soft tissue swelling. There was no acute fracture or dislocation. The examiner stated that he found no evidence of a right ankle condition upon examination A September 2011 VA treatment record reveals that the Veteran complained of aching pain in the medial right heel and swelling in both feet. The Veteran reported that the swelling and pain had been going on for about 20 years. The assessment was peripheral vascular disease, diabetic neuropathy, and pitting edema. The Veteran was provided a VA examination in July 2012. The Veteran stated that he twisted his right ankle playing basketball in 1974. He reported that he had been treated with wrapping and temporary profile. The Veteran asserted that he had had right ankle problems ever since the injury. Examination resulted in a diagnosis of sprain. The examiner stated that there was no evidence of arthritis or gout of the right ankle. The examiner opined that the Veteran's current right ankle complaints were unrelated to the in-service right ankle injury. He noted that the STR following the injury did not indicate that the right ankle injury was more than acute and self limiting. He also noted that there were no complaints of any joint problems on the Report of Medical History. III. Analysis The Veteran contends that service connection for a right ankle disability is warranted. He asserts that he has had repeated pain and swelling of the right ankle that is due to this right ankle injury in service. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection or service-connected aggravation for a present disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant 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). Although various VA treatment records indicate that the Veteran has osteoarthritis and gout, none of the extensive medical records indicates that the Veteran has arthritis or gout of the right ankle. In fact, the medical evidence clearly shows that the Veteran does not have arthritis of the right ankle. X-rays of the right ankle performed in July 1982 and September 2010 did not reveal any arthritis, and the July 2012 VA examiner indicated that the Veteran does not have arthritis or gout of the right ankle. The evidence of record reflects that the Veteran did not develop any chronic disability of the right ankle within a year of discharge from service. Accordingly, he is not entitled to presumptive service connection for residuals of a right ankle sprain. See 38 C.F.R. §§ 3.307, 3.309(a) (2012). The Board finds that the Veteran did injure his right ankle during service, that September 2010 VA x-rays showed that there might be mild diffuse soft tissue swelling, and that a September 2011 VA treatment report revealed pain in the right heel and swelling in both feet. Furthermore, the Board acknowledges that the Veteran is competent to report right ankle pain and swelling symptoms ever since service despite the lack of medical evidence of such. However, on the question of whether the in-service right ankle injury resulted in a current right ankle disability, the Board finds the Veteran's lay statement to be of limited probative value. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran has a right ankle disability diagnosed many years after service that is related to the right ankle injury during service, such falls outside the realm of common knowledge of a lay person as this is beyond the capability of a lay person to observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Even if the Veteran were competent to provide an etiological opinion, and the Board were to find such competent and credible, the Veteran's statements are still outweighed by the more probative VA medical opinion. The Board finds that the most probative evidence of record is the July 2012 VA medical opinion. The examination is adequate and probative as the VA examiner examined the Veteran, reviewed the Veteran's medical history, and then came to the conclusion that the Veteran's current right ankle complaints are unrelated to service. There are no medical opinions to contrary. Furthermore, the Veteran's medical history clearly supports the July 2012 negative VA medical opinion. This is shown by STR subsequent to July 1975 which contain no further right ankle complaints, and by the July 1976 report of examination for separation from service, which indicated that the Veteran's feet and lower extremities were normal. The Veteran reported at that time that he was in good health and in March 1977 denied any problems with swollen or painful joints. Other evidence weighing against the Veteran's claim is the July 1982 VA examination report. At the July 1982 VA examination the Veteran reported that he injured his left ankle in service and he reported left ankle disability. The Veteran's statements to the July 1982 VA examiner would indicate that he did not have any right ankle complaints at that time. Also weighing against the Veteran's claim is an April 2006 VA examination report. At that examination the Veteran reported back pain. When asked about his joints he also reported right knee pian and bilateral shoulder pain. However, the Veteran made no right ankle complaints, which indicates that at that time the Veteran was not experiencing right ankle pain or swelling. Furthermore, when the Veteran's right ankle was examined in September 2010, the examiner stated that there were no objective findings of a right ankle condition. As shown above, the greater weight of the evidence, and the most probative evidence, clearly shows that the Veteran does not have any current right ankle disability that is related to service. As the preponderance of the evidence is against his claim, service connection for residuals of a right ankle sprain is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for the residuals of right ankle sprain is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs