Citation Nr: 1315303	
Decision Date: 05/09/13    Archive Date: 05/15/13

DOCKET NO.  09-41 549	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a left ankle/foot disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Moore, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1977 to June 1981.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for a left ankle injury/arthritis.  In May 2009, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in October 2009.


FINDING OF FACT

The competent evidence of record does not establish that the Veteran currently has a left ankle/foot disability.


CONCLUSION OF LAW

A left ankle/foot disability was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  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, the Board 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 a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. Veterans Claims Assistance Act of 2000 (VCAA)

With regard to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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.  Prior to the initial adjudication of the Veteran's claim, a letter dated in February 2009 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187.

Additionally, the February 2009 letter informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA treatment records are in the file.  The Veteran has not identified any additional private treatment records that he wished for VA to obtain.

With respect to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.  

As discussed more fully below, the record does not reflect that the Veteran has a current left ankle or foot diagnosis.  Although treatment records reflect complaints of left ankle and foot pain and a reported history of a left ankle fracture, there is no actual diagnosis associated with the Veteran's complaints.  As the VA treatment records are absent of a diagnosis of a left ankle or foot disability, the Board finds that the preponderance of the medical evidence is against a current diagnosis of a left ankle or foot disability.  An examination is not required.  See McLendon, supra.  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).



II. Merits of the Claim

The Veteran has claimed he has a left ankle or foot disability as a result of military service.  He reports that he broke his left ankle in service and that this is related to his current left ankle or foot complaints.  Therefore, he believes service connection is warranted.  

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.  See 38 U.S.C.A. § 1131 (West 2002).  However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease.  If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity.  See 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.  See 38 C.F.R. § 3.303(d) (2012).

In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

A review of the medical evidence of record does not show the Veteran has a current left ankle or foot disability.  Although VA treatment records reflect multiple complaints of left ankle and/or foot pain, the only diagnoses associated with these complaints are "s/p left ankle fracture" and "chronic left ankle and left foot pain."  See VA treatment records, March 2009.  The former "diagnosis" is merely a notation of the Veteran's reported history.  It does not reflect a finding of a current diagnosis.  The latter diagnosis of left ankle and foot pain does not rise to the level of disability for VA compensation purposes.  Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).  Significantly, the physical examination performed at the time of the Veteran's complaints found no acute signs of inflammation or tender inflamed areas and normal range of motion for the left ankle and foot.  Thus, the Board finds that the Veteran's complaints of left ankle and foot pain, as well as the "diagnoses" of left ankle and foot pain, do not constitute a current left ankle or foot disability.  

The Board notes that an undated VA "Problem List" notes a diagnosis of "degenerative joint disease."  However, it does not identify a particular joint and there is no indication, such as x-ray findings of left ankle or foot arthritis, that the listed problem refers to arthritis of the left ankle or foot.  Indeed, a February 2009 VA clinical record concerning left ankle complaints notes that the Veteran was "[a]mbulatory w/o difficulty; normal gait/balance.  Declines x-ray of lt foot."  This record indicates that VA attempted to undertake tests, in this case an x-ray, in an attempt to evaluate the Veteran's complaints, but the Veteran declined.  As such, the Board finds that the evidence does not show that the Veteran has a current left ankle or foot disability.  Without such evidence, service connection for a left ankle/foot disability cannot be granted.  See Hickson, supra.

The Board has also considered the Veteran's contentions that he has a current left ankle and/or foot disability.  However, the Board finds that his opinion is not competent evidence in this regard because he has not demonstrated the medical expertise needed to render an opinion on the nature of his left ankle and foot pain or any associated diagnosis.  Although it is error to categorically reject a non-expert medical opinion, not all medical questions are subject to non-expert opinion.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Whether a non-expert (a layperson) is competent to provide a nexus opinion depends on the facts of the particular case.  In Davidson, the United States Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding.  Id.

In Jandreau, the Federal Circuit stated that: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer.  Id. at n.4.

Also of note is that the Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Taking Davidson, Jandreau, and Layno together leads the Board to the conclusion that whether a non-expert diagnosis is competent evidence depends on the complexity of the particular question and whether or not a diagnosis could be rendered based on personal observation.  In this case, the Board finds that a diagnosis cannot be rendered based solely on personal observation.  While the Veteran is certainly competent to report that he experiences left ankle and/or foot pain, he is not competent to attribute those complaints of pain to a particular diagnosis or any diagnosis at all.  His assertions are therefore not competent evidence of a diagnosis of a left ankle/foot disability.  Given the competent medical evidence showing no left ankle/foot disability, as already discussed, the Board finds that the preponderance of evidence is against a finding that the Veteran has or had a left ankle or foot disability throughout the appeals period.   

Accordingly, the Board finds that the claim of entitlement to service connection for a left ankle/foot disability must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).


ORDER

Entitlement to service connection for a left ankle/foot disability is denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs