Citation Nr: 1315855	
Decision Date: 05/14/13    Archive Date: 05/15/13

DOCKET NO.  07-11 353	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for a disability of the right ankle and/or right heel, to include stress fracture residuals.

2.  Entitlement to service connection for a disability of the left ankle and/or left heel, to include stress fracture residuals.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel



INTRODUCTION

The Veteran had verified active duty for training (ACDUTRA) from March 17, 1980 to April 1, 1980; from June 26, 1985 to August 30, 1985; and from February 12, 1986 to April 29, 1986.  The Veteran served in the New Jersey Army National Guard from 1980 to 1989, and in the Army Reserve from 1989 to 1993.  The Veteran was granted service connection for disabilities not at issue in this decision, and, therefore, has attained Veteran status for those particular disabilities.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.  


FINDINGS OF FACT

1.  The Veteran does not have a current right ankle and/or right heel disability, to include stress fracture residuals, due to disease or injury from her ACDUTRA service.  

2.  The Veteran does not have a current left ankle and/or left heel disability, to include stress fracture residuals, due to disease or injury from her ACDUTRA service.  


CONCLUSIONS OF LAW

1.  A right ankle and/or right heel disability was not incurred in or aggravated during a period of ACDUTRA service.  38 U.S.C.A. §§ 101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303 (2012).

2.  A left ankle and/or left heel disability was not incurred in or aggravated during a period of ACDUTRA service.  38 U.S.C.A. §§ 101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Duties to Notify and Assist

Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in July 2005, August 2010, and July 2012.  Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate the service connection issues; (2) informing her about the information and evidence the VA would seek to provide; (3) and informing her about the information and evidence she was expected to provide.  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).   

Furthermore, the July 2012 VCAA letter from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

With regard to the timing of notice, VCAA notice should be provided to a claimant before the initial unfavorable rating decision on a claim.  Pelegrini II, 18 Vet. App. at 120 (2004).  In the present case, the Board sees the RO did not provide the Veteran with all VCAA notice prior to the March 2006 adverse determination on appeal.  But in Pelegrini II, the Court also clarified that in these situations VA does not have to vitiate that decision and start the whole adjudicatory process anew, as if that decision was never made.  Id.  Rather, VA need only ensure the Veteran receives (or since has received) content-complying VCAA notice, followed by readjudication of his claims, such that he is still provided proper due process.  In other words, he or she must be given an opportunity to participate effectively in the processing of his or her claims.  

The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has further held that a Statement of the Case (SOC) or Supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC.  Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV).  In fact, as a matter of law, VA may cure a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice followed by readjudication, to include a SOC or SSOC.  See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In the instant case, the timing error was cured.  After providing additional VCAA notice on multiple occasions, the RO readjudicated the claims in SSOCs, to include the most recent March 2013 SSOC.  Thus, the timing defect in the notice has been rectified.  Prickett, 20 Vet. App. at 376; see also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis).  

With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), service personnel records (SPRs), National Guard records, VA examinations, and private treatment records.  For her part, the Veteran has submitted personal statements and argument from her representative.  

The Veteran was also provided September 2008 and February 2013 VA examinations with medical opinions addressing the etiology of her alleged bilateral ankle / heel disorders.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  These examinations and opinions, in particular the February 2013 VA examination, were thorough, supported by an explanation, based on a review of the claims folder, and supported by clinical evidence of record.  The Veteran has not submitted contrary, probative lay or medical evidence in support of service connection.  

Finally, the RO substantially complied with the Board's July 2012 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required).  Specifically, pursuant to the remand, the RO verified that the Veteran had qualifying federal service in July 1985, and secured a VA examination to determine whether the Veteran had a disability of both heels / ankles caused by her period of ACDUTRA in July 1985.  Although the RO did not obtain x-ray reports, the Board finds that this action was not required.  Although the 2008 VA examiner cited to x-rays that may or may not be part of the record, both the 2008 and 2013 examiner assumed that there was a stress fracture during service.  They both based their opinions on this fact, based on the evidence in the STRs.  The 2013 examiner found no clinical evidence of a current disability; thus, even if x-rays were obtained and indicated that there were old stress fractures, as further discussed below, service connection is not provided for an in-service injury, there must also be current disability.  See also 38 U.S.C.A. § 5103A (West 2002) (indicating that where no reasonable possibility exists that would aid in substantiating the instant claims, any deficiencies of assistance are rendered moot).  Accordingly, the Board finds that the RO has substantially complied with the Board's instructions.  

In summary, the Board is satisfied that the duty to assist has been met.  38 U.S.C.A. § 5103A.

Governing Laws and Regulations for Service Connection

Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.306.  

In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Under 38 C.F.R. § 3.303(a), service connection requires competent evidence showing: (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 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  See also 38 C.F.R. § 3.303(a).  The Federal Circuit recently held that diseases that would be considered "chronic" in a medical sense, but which are not listed in 38 C.F.R. § 3.309(a) as an enumerated "chronic disease," may still qualify for service connection under the three-element test for disability compensation described in § 3.303(a).  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).

Under 38 C.F.R. § 3.303(b), with "chronic disease" shown in service (or within the presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  See also Groves v. Peake, 524 F.3d 1306, 1309 (2008).  The Federal Circuit recently held that the regulation creating a presumption of service connection for "chronic diseases" manifesting during service or within one year of service, and then again at any later date (38 C.F.R. § 3.303(b)), is only available to establish service connection for the "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases).  Walker, 708 F.3d at 1336-37.  

However, in the present case, there is no evidence or allegation of an enumerated "chronic disease" for the bilateral heel / ankle issue.  See 38 U.S.C.A. §§ 1101; 38 C.F.R. § 3.309(a); Walker, 708 F.3d at 1336-37.  Thus, the Board concludes that an analysis under 38 C.F.R. § 3.303(b) for an enumerated "chronic disease" is not warranted.  It follows that the Veteran also may not establish continuity of symptomatology for any chronic disease in lieu of medical nexus, as this avenue to service connection is only available for enumerated "chronic diseases," which the Veteran does not have.  Walker, 708 F.3d at 1336-37.  

Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson, 581 F.3d at 1316.  See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).   

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

Governing Laws and Regulations for ACDUTRA / INACDUTRA Service

A Veteran is "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable."  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).  The term "active military, naval, or air service" includes the following:  active duty; any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA; or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred or aggravated in the line of duty while performing INACDUTRA, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during INACDUTRA.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).  

ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1).  INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1).  Active service also includes authorized travel to or from such duty or service.  38 U.S.C.A. § 106(d); 38 C.F.R. § 3.6(e).

In summary, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA.  See 38 U.S.C.A. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)).  In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "Veteran" for that period of ACDUTRA or INACDUTRA service alone.  38 U.S.C. § 101(2), (24); see Acciola, 22 Vet. App. at 324.

Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless "Veteran" status is attained during those periods.  Paulson v. Brown, 7 Vet. App. 466, 470 (1995).  The presumption of soundness under 38 U.S.C.A. § 1111 does not apply when a claimant, Veteran or otherwise, has not been examined upon entering a period of ACDUTRA.  Smith v. Shinseki, 24 Vet. App. 40, 45 (2010).  Likewise, the presumption of aggravation under 38 U.S.C.A. § 1153 does not apply to ACDUTRA or INACDUTRA service.  Smith, 24 Vet. App. at 45.  See also Acciola v. Peake, 22 Vet. App. 320 (2008); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).  Neither the presumption of soundness nor the presumption of aggravation is at issue here. 

Analysis - Service Connection

The Veteran contends that she developed a bilateral ankle / heel disability after sustaining a stress fracture in July 1985 during a period of ACDUTRA service in the New Jersey Army National Guard.  See July 2005 claim; April 2006 Notice of Disagreement (NOD).  

Initially, in the July 2012 Board remand, the Board attempted to determine whether the Veteran's National Guard duty in July 1985 was federal or state in nature.  National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States; at all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). "Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed 'full-time duty' under the provisions of 32 U.S.C. §§ 316 , 502, 503, 504, or 505."  Id. at 58.  In the instant case, the RO secured the Veteran's National Guard SPRs, which confirmed that the Veteran had qualifying federal service from June 26, 1985 to August 30, 1985 during a period of ACDUTRA.  See Retirement Credits Record; Active Duty Report (DD Form 220).  

Also, at the outset, the Board recognizes that the Veteran did not serve on "active duty" for any period of time.  However, the RO service-connected the Veteran for a low back strain condition with bilateral lower extremity peripheral neuropathy as incurred during another period of ACDUTRA from February 12, 1986, to April 29, 1986.  Thus, she has achieved Veteran status by virtue of other service-connected disabilities not at issue in the present decision. Therefore, that particular period of service is deemed "active military service," although it is not "active duty."  See 38 U.S.C.A. §§ 101(2), (22), (24) , 1110; Acciola v. Peake, 22 Vet. App. 320 (2008).  

Regardless, since the claimant has not been awarded service connection for any disability for the period of ACDUTRA in question from June 26, 1985 to August 30, 1985, she is presently not defined as a "Veteran" for purposes of benefits administered by VA for this particular period of service.  See 38 U.S.C. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a); Mercado-Martinez, 11 Vet. App. at 419.  The remaining question here is whether service connection is warranted for any current bilateral ankle / heel disability from a disease or injury incurred or aggravated in the line of duty in July 1985 while performing ACDUTRA.

National Guard STRs show that from July 17-30, 1985, the Veteran was seen on several occasions for complaints of bilateral heel and/or ankle pain.  Positive findings during this period included heel compression tests, swelling in the ankles, and tenderness in the Achilles tendons and plantar calcanei.  She was diagnosed as having calcaneal or heel stress fractures, although whether X-rays were obtained is unclear.  Treatment during this period included the use of crutches for a short period, as well as pain medication.  She was put on a temporary profile for several weeks.  But according to a final National Guard treatment note, dated August 12, 1985, her bilateral heel pain had resolved.  In fact, an August 1990 Army Reserve examination of the feet and lower extremities was normal.  Moreover, in an August 1990 Report of Medical History, the Veteran denied any history of foot trouble or cramps in the legs.  

Post-service, with regard to ongoing symptoms, there were no further lay or medical complaints for the heels or ankles in the claims folder until the mid-2000s.  Private treatment records from Casa De Amigos Clinic dated from 2004 to 2006 document a variety of medical complaints and disorders, but failed to document any ankle or heel pain.  The Veteran filed her claim for service connection for ankle problems in 2005.  At a VA examination in September 2008, the VA examiner was asked to evaluate her claim for service connection for right heel stress fracture.  In the examination report, the VA examiner reported that X-rays showed no evidence of any stress reaction in the calcaneus bilaterally; she had normal calcanei.  An X-ray of the right ankle dated in September 2008 showed an irregularity in the distal fibula which was possibly an old stress fracture deformity, and a cystic area in the superior surface of the talus, possibly secondary to old osteochondritis; this was not commented upon by the September 2008 VA examiner, and only included the right ankle. 

Post-service, a February 2013 VA foot and ankle examiner noted that the Veteran did not have any current complaints for the feet and ankles.  Her ankles exhibited full range of motion without any factors of functional loss, to include pain.  There was no arthritis.  An examination of both feet revealed no Morton's neuroma, no metatarsalgia, no hammer toes, no hallux valgus, no hallux rigidus, no claw foot, no flat feet, no malunion or nonunion of the tarsal / metatarsal bones, and no other foot conditions.  The VA examiner assessed that there was no clinical evidence to support the earlier X-ray finding of fracture of a phalanx.  The VA examiner acknowledged the in-service stress fracture to the calcaneus in 1985, but there were no complaints regarding the feet or ankles since 1985.  All examinations were normal.  The VA examiner opined there was no relationship to the in-service stress fracture, and if the Veteran did have a stress fracture in 1985 it was completely healed, and there was no residual.  

The facts above require the Board to address the issue of what constitutes a "disability" under VA law.  In the absence of proof of a present disability due to disease or injury, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The Federal Circuit has also noted that two provisions of 38 C.F.R. Part 4, 38 C.F.R. §§ 4.40 and 4.45, refer to pain in connection with the assessment of the extent to which a Veteran may be disabled, and, thus, pain is not wholly irrelevant to the assessment of a disability for which a Veteran seeks compensation. See Sanchez- Benitez v. Principi, 259 F.3d 1356, 1361 (2001).  However, the Federal Circuit also noted that in order for a Veteran to qualify for basic entitlement to compensation under 38 U.S.C.A. § 1110  or § 1131, the Veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty.  Id.  Hence, the mere fact of a Veteran reporting subjective symptoms, whether pain or otherwise, does not necessarily warrant a finding that he has met the current disability due to disease or injury requirement.  Rather, an underlying disease or injury is required, with current impairment of some sort. 

In Brammer, the appellant did not produce evidence showing a presently existing disability stemming from in-service spinal meningitis or frozen feet.  The Veteran believed that he was entitled to benefits simply because he had a disease or injury while on active service.  But Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability, there can be no valid claim.  Id. at 225.    

In the present case, for the right ankle / right heel, in July 1985 during a period of ACDUTRA, there was a confirmed injury.  Moreover, post-service, an X-ray of the right ankle dated in September 2008 showed an irregularity in the distal fibula which was possibly an old stress fracture deformity, and a cystic area in the superior surface of the talus, possibly secondary to old osteochondritis.  Thus, the existence of a past in-service July 1985 injury was confirmed post-service by X-ray.  However, no current disability due to the confirmed injury was established for the right ankle / right heel.  Both VA examiners found no current impairment in the right ankle / right heel.  Detailed examinations of the right ankle and right foot failed to reveal any current pathology, to include limitation of motion, pain, or other impairment.  Private treatment records dated from 2004 to 2006 also failed to reveal any current right ankle / right heel problems.  It was emphasized that the Veteran herself denied any current symptomatology to both VA examiners.  Although the Veteran as a lay person is competent to report or discuss any symptoms for the right ankle / right heel, the Veteran has failed to submit any probative lay or medical evidence discussing specific right ankle / right heel symptoms or pathology.  

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997).  Absent probative evidence of a current right ankle / right heel disability due to the confirmed July 1985 injury during a period of ACDUTRA, service connection cannot be granted.  38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. 
 
In the present case, for the left ankle / left heel, in July 1985 during a period of ACDUTRA, there was a confirmed injury.  However, post-service, for the left ankle / left heel, there is no confirmation, by examination or by X-ray, of the in-service injury.  Moreover, no current disability due to the in-service injury was established for the left ankle / left heel.  Both VA examiners found no current impairment in the left ankle / left heel.  Detailed examinations of the left ankle and left foot failed to reveal any current pathology, to include limitation of motion, pain, or other impairment.  Private treatment records dated from 2004 to 2006 also failed to reveal any current left ankle / left heel problems.  It was emphasized that the Veteran herself denied any current symptomatology to both VA examiners.  Although the Veteran as a lay person is competent to report or discuss any symptoms for the left ankle / left heel, the Veteran has failed to submit any probative lay or medical evidence discussing specific left ankle / left heel symptoms or pathology.  

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997).  Absent probative evidence of a current left ankle / left heel disability due to the confirmed July 1985 injury during a period of ACDUTRA, service connection cannot be granted.  38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. 
   
Accordingly, the Board concludes that the preponderance of the evidence is against service connection for a bilateral disability of the right ankle and/or right heel, to include stress fracture residuals, so there is no reasonable doubt to resolve in the Veteran's favor.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for a disability of the right ankle and/or right heel, to include stress fracture residuals is denied. 

Service connection for a disability of the left ankle and/or left heel, to include stress fracture residuals is denied. 




____________________________________________
      K. MILLIKAN
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs