Citation Nr: 1314802 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 06-01 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for residuals of a left ankle fracture. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from October 1954 to March 1958, from June 1959 to August 1959, from January 1964 to May 1964 and from August 1964 to October 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2004 byte Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified during a hearing before the undersigned Veterans Law Judge in March 2008 at the St. Paul, Minnesota RO. A transcript of the hearing is of record. The Board remanded this issue in October 2008 and June 2010 to correct deficiencies with respect to notice and assistance. This issue was remanded again in November 2011 and December 2012 for further evidentiary development. Thereafter, the RO continued the denial of the claim (as reflected in the March 2013 supplemental statement of the case (SSOC)) and returned this issue to the Board for further appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT A preponderance of the evidence shows that the Veteran's current left ankle disability is not related to active military service. CONCLUSION OF LAW Residuals of a left ankle injury were not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. After careful review of the claims folder, the Board finds that letters dated in May 2004 and March 2009 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Specifically, the letters advised the Veteran what information and evidence was needed to substantiate his service connection claim for residuals of a left ankle fracture. The letters also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records and records from other Federal agencies. The March 2009 letter notified the Veteran of how VA will determine the disability rating and effective date if his claim is granted. The May 2004 letter satisfied most of the duty to notify provisions prior to the initial AOJ decision. However, the March 2009 letter satisfied the duty to notify provision with respect to how VA determines disability ratings and effective dates subsequent to the initial AOJ decision. The Board finds that this timing error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of the supplemental statement of the case issued in March 2013 after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Veteran will not be prejudiced by the Board proceeding to decide his claim, as the timing error did not affect the essential fairness of the adjudication. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains VA examinations dated in February 1992 and March 2012, a VA opinion dated in February 2013, some of the Veteran's service treatment records, lay statements from the Veteran, his family and friends and a transcript of the March 2008 Board hearing. The March 2012 VA examination report reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history from the Veteran and physically evaluating the Veteran. He discussed the relevant evidence of record and documented the results of the physical evaluation. Following the above, the examiner provided a diagnosis and a nexus opinion with supporting rationale, which appears to be based on the evidence of record. As such, the Board finds the March 2012 VA examination is adequate for adjudication purposes. With respect to the February 2013 VA opinion, the opinion reveals that the examiner reviewed the claims file prior to providing an opinion. The examiner provided an opinion with a supporting rationale that is based on his expertise and the evidence of record. As such, the Board finds that the February 2013 VA examination is adequate for rating purposes. The Board observes that some of the Veteran's service treatment records are unavailable. In a case in which a veteran's service records are unavailable through no fault of his or her own, there is a heightened obligation for VA to assist the veteran in the development of his or her claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to her claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). A review of the claims folder reveals that VA has fulfilled its heightened duty to assist the Veteran. The RO received some of the Veteran's service treatment records in April 1992. Thereafter, the Veteran submitted a copy of his request for specific treatment records from the National Archives and Records Administration (NARA). He included NARA's response that the medical records were not in their file and that it would most likely have been in the area that suffered the most damage in the fire that occurred in July 1973 and may have been destroyed. The Veteran also submitted in April 2004 a negative response dated in March 1993 from NARA with respect to morning reports and hospital/clinical records from November 1956 to March 1957. NARA informed him that the morning reports had no remarks with respect to the Veteran from November 1956 to March 1957. Hospital records prior to 1958 were filed with the individual personnel folder and none of the personnel or medical files were recovered from the fire. The Appeals Management Center sent a request to the National Personnel Records Center (NPRC) in December 2011 and received a response that all available service treatment records were mailed to VA in March 1992 and that the Veteran's U. S. Air Force records are fire related and there are no service treatment records. A request for sick/morning reports was sent to NPRC in September 2012. NPRC informed the AMC in October 2012 that no remarks pertaining to the Veteran's allegations were located. The AMC contacted the Veteran in September 2012 and he informed them that if VA cannot locate the records at the NPRC that he has no more evidence to submit. VA made a formal finding of unavailability of records in October 2012. In addition, as noted in the Introduction, this claim was previously remanded in October 2008 to provide the Veteran with proper VCAA notice with respect to the Veteran's claim to reopen entitlement to service connection residuals of a left ankle fracture. A March 2009 VCAA letter provided the Veteran with adequate notice. The June 2009 Board remand requested that the Veteran should be notified of alternative evidence he may submit to support the claimed in-service onset of disabilities and to explain how service treatment records are obtained. A June 2010 letter sent to the Veteran notified the Veteran of alternative sources of evidence and how VA determined that it made reasonable efforts to obtain the Veteran's missing service treatment records and that a follow-up would be futile. The Board remanded the claim again in November 2011 to provide the Veteran with a VA examination and opinion. The record contains a March 2012 VA examination report that answers most of the questions raised by the Board and it was supported by an explanation. Finally, the Board remanded the claim in December 2012 to provide a supplemental opinion. A February 2013 opinion addresses the question raised in the December 2012 Board remanded. Accordingly, the Board finds that there has been substantial compliance with the October 2008, June 2009, November 2011 and December 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, the Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claim for Service Connection The Veteran claims that he should receive service connection for residuals of a fracture of the left ankle. He testified in the March 2008 Board hearing that he broke his left ankle in a motor vehicle accident during service. The Veteran contends that he has had painful instability of the left ankle for the last fifty five years. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In assessing whether the Veteran is entitled to service connection for a left ankle disability, the evidence of record must show that the Veteran currently has the claimed disability. X-rays of the feet and ankles as part of a March 2012 VA examination reveal that the Veteran's ankle joints were well preserved with no acute fracture or dislocation. There was a suggestion of mild soft tissue edema of the ankles. The March 2012 VA examiner diagnosed the Veteran with posterior tibial tendon dysfunction of the left ankle. Thus, the medical evidence of record shows that the Veteran has a current diagnosis of a left ankle disability. Nevertheless, the Veteran's service treatment records do not document any complaints of or treatment for a left ankle condition. In this regard, the Veteran's separation examination from the Air Force in February 1958 reveals that his feet and lower extremities were evaluated as clinically normal. There was a notation that the Veteran fractured his left foot in January 1957 and he fracture the left foot again playing basketball in September 1957. The physician determined that there were no complications or sequelae. Annual and periodic examinations dated in October 1964, May 1968, July 1970 and April 1974 show that the Veteran's feet and lower extremities were evaluated as normal. He also denied experiencing or ever experiencing bone, joint or other deformity or arthritis in the July 1970 and April 1974 Report of Medical History form. There was a notation in the April 1974 Report of Medical History of a fracture of the right foot with sequelae. The Veteran's separation examination dated in September 1977 reveals that the Veteran's feet and lower extremities were evaluated as normal and he did not document a history of right ankle problems in the Report of Medical History. Post service medical records show that there was no evidence of swelling, redness or deformity about the ankles. See February 1992 VA examination. Range of motion of each ankle was good and asymptomatic. X-rays dated in February 1992 revealed soft tissue swelling, but no underlying fracture or dislocation. The impression of the radiologist was that there was no bone abnormality. The examiner's impression was healed fracture of both ankles by history. The first medical evidence of a diagnosis of a left ankle disability was in the March 2012 VA examination. Furthermore, the competent medical evidence of record shows that the Veteran's current left ankle disability is not related to active military service. In this case, after reviewing the claims file and physically evaluating the Veteran, a VA examiner in March 2012 determined that the Veteran's left ankle pain, diagnosed as posterior tibial tendon dysfunction, is less likely than not incurred in or caused by the claimed in service injury or event. He explained that although the Veteran's military records prior to 1958 are unavailable, the discharge examination dated in February 1958 notes no weakness or deformity of his feet. The Veteran's commissioning physical in July 1970 indicate no foot trouble or lameness. He also noted that the tendon weakness, suggesting a progressive tibial dysfunction, is a symptom of the Veteran's nonservice-connected pes planus. The Board finds that the VA opinion in March 2012 is persuasive and probative as the examiner reviewed the record and provided a clear rationale for his opinion based on the evidence of record and general medical knowledge. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board notes that the Veteran contends that his current right ankle disability is related to military service. The Veteran is competent as a lay person to report the onset of symptoms and the circumstances surrounding such. See Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). However, the Veteran is not competent to provide an opinion on a complex question such as the etiology of his posterior tibial tendon dysfunction. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Veteran is not a qualified health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current right ankle disability and military service. Based on the evidence discussed above, the Board finds that the preponderance of the evidence is against the claim and the benefit of the doubt rule is not for application. See Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001); see also 38 U.S.C.A. § 5107. Accordingly, entitlement to service connection for residuals of a left ankle fracture is not warranted. ORDER Entitlement to service connection for residuals of a left ankle fracture is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs