Citation Nr: 1317399 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 11-08 895A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active duty service from March 1943 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2013 the Board remanded the matter for additional development. 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). FINDING OF FACT The competent medical evidence is at least in a state of equipoise regarding the question of whether the Veteran's preexisting left ankle was aggravated during service. CONCLUSION OF LAW A preexisting left ankle disability, was aggravated in active service. 38 U.S.C.A. § 1110 (West. 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In light of the favorable decision as it relates to the issue on appeal, no further discussion of VCAA is necessary at this point. Any notice deficiency, per Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), constitutes harmless error (see Bernard v. Brown, 4 Vet. App. 384, 394 (1993)), as section 5103(a) notice provisions have been satisfied, and if the veteran so chooses, he will have an opportunity to initiate the appellate process again should he disagree with the disability rating or effective date assigned to the award. Then, more detailed obligations arise, the requirements of which are set forth in sections 7105(c) and 5103A. Dingess, 19 Vet. App. at 489. The Board notes that the Veteran's service treatment records and medical reports are unavailable. The RO requested his service medical records from the National Personnel Records Center, and was notified that the records were fire-related. Surgeon General Office records were offered and received as an alternate record source, but that record does not contain any of the Veteran's service treatment records or medical reports. The Board acknowledges that in a case in which a Veteran's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist in the development of the claim and to provide reasons or bases for any adverse decision rendered without such records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a Veteran in developing facts pertaining to his claim in a case in which service treatment records are presumed destroyed includes the obligation to search for alternative medical records). Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Generally, the evidence 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. See Shedden v. Principi, 381 F.3d 1163, 1166-17 (Fed. Cir. 2004). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). At the time of the service entrance examination, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). Veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The Veteran is only entitled to a presumption of soundness where disability is not noted on induction examination. A pre-existing injury or disease is considered to have been aggravated by active service if there is an increase in disability during service, unless a specific finding shows the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2011). VA bears the burden to rebut the presumption of aggravation in service. Laposky v. Brown, 4 Vet. App. 331, 334 (1993); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). However, aggravation is not conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service," unless the underlying condition, as contrasted with the symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Thus, "a lasting worsening of the condition" - that is, a worsening that existed, not only at the time of separation, but one that still exists currently - is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997); Verdon v. Brown, 8 Vet. App. 529, 538 (1996). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that which he has personal knowledge). 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). The Court has declared, when adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Historically, in September 1980, the Veteran underwent VA examination for VA pension benefits. At that time he reported that his left ankle bothered him. He stated that he broke his left ankle in 1941 and had not had full movement since that time. He noted that the Army was going to discharge him because of his left ankle, but his discharge was canceled, and instead he was put in "Limited Service" and treated at whatever Army base he was stationed. X-rays taken at that time showed no evidence of bony erosions. There was some periosteal reaction along the lateral aspect of the lower tibia and medial aspect of the distal fibula. There was no obvious fracture or dislocation demonstrable. The diagnosis was frozen joint, left ankle. In a September 1985 statement, the Veteran noted that his service records [if they were available] would show that he was going to be discharged from the service because of his leg, but there was a need for soldiers oversees, and his discharge was canceled. The Veteran noted in an August 2001 statement that he should have been service connected because his preexisting left ankle disability was aggravated in service as a result of performing three 20-mile hikes a week. In September 2001 he noted that he broke his left ankle in four places in 1940 (prior to entering service). He was drafted in the Army in 1943 after being denied at his first physical because of his left ankle. He was later called again, he passed the physical and was put on limited service. His limited service lasted for a short time as there was a need for soldiers overseas; he was taken off of limited service. He had to walk three 20-mile hikes a week. He stated that the Army doctors discussed discharging him because of his left ankle, but did not because of the need for soldiers during that time. He was also used as a substitute cook, which required him to stand sometimes from 4:00 a.m. to 9:00 p.m. in the mess hall. He indicated that the 20-mile hikes and standing (as a substitute cook) aggravated his left ankle and leg. In a November 2006 unsigned letter, the Veteran's private physician, Dr. Way, noted the Veteran's history consistent with what the Veteran reported in previous statements. In addition, Dr. Way noted that the Veteran was in a limited service unit assigned to learn the use of 75 millimeter antiaircraft artillery guarding a Pratt & Whitney factory and from there he was transferred to an engineering unit in Alabama where he was forced to do 20-mile hikes and serve as a cook standing on his feet all day long on the military base. Later he was shipped to the European Theatre in an engineering unit. While in the military the Veteran received diathermy and whirlpool treatments prior to leaving for the European theatre and by the time he completed his war military experience, he was severely impaired by the worsening arthritis of his ankle due to having overused it. On physical examination of the Veteran, Dr. Way, noted he had a chronically swollen left ankle with very limited range of motion compared to the other side which is consistently post traumatic arthritis. Dr. Way opined that although the Veteran's ankle preceded his military service, the problem with his ankle was "much exacerbated" by the forced maneuvers that he was required to perform in his military duties. In an April 2009 letter by E. Deprey, a certified registered physician's assistant, it was noted that the Veteran had post traumatic arthritis of the left ankle. She stated that his left ankle fusion at age 16 and his rigorous duties as a serviceman caused post traumatic arthritis. Since 1980 he has used two canes to ambulate due to his ankle immobility. On February 2013 VA examination, the Veteran was diagnosed with fracture of the left distal tibia and fibula (above ankle). The examiner opined that the claimed left ankle disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. To support his opinion, the examiner reasoned that the Veteran stated that his left ankle did not have fusion surgery before his enlistment. He was in a motor vehicle accident in 1940, which caused a fracture of the left distal tibia and fibula above the ankle, which healed in a position which ankylosed the ankle in a functional position. In support of such subjective report, there were no surgical scars present. The Veteran reported that he was inducted to do lighter duties while in military service, but was needed for regular duties, and was able to do regular duties as long as he had frequent physical therapy treatment. He reported the same use of the ankle after military service as before military service. No contemporary records were available. The current status of the left ankle is at least as good as one would expect 63 years after onset of ankylosis. X-rays of the left ankle showed osteoporotic changes in the lower leg, ankle and foot regions. There was mild soft tissue swelling. The Board finds entitlement to service connection for aggravation of a preexisting left ankle injury. It is not in disputed that the Veteran sustained a left ankle injury prior to entering service. Moreover, although service records are not available, the Veteran's credible statements detail the fact that his preservice disorder was in fact noted by military personnel and prevented him from initially entering service. The Board finds that the presumption of soundness does not attach in this case. The Veteran has also credibly reported that the left ankle disability preexisted service and was aggravated therein. Both Dr. Way and the physician's assistant noted essentially that the Veteran experienced a worsening of his preexisting left ankle injury during military service. The February 2013 VA examiner has expressed an opinion to the contrary. The Board is thus presented with conflicting medical opinions regarding aggravation. None of the opinions are based on a review of actual military records. The Board is thus left with the Veteran's statements, and the Board is unable to find any reason to find the Veteran's statements not credible. Under the circumstances, the Board finds that the evidence is at least in relative equipoise regarding whether the Veteran's preexisting left ankle disability was aggravated by his military service. Service connection for aggravation of a preexisting left ankle disability is therefore warranted. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). ORDER Entitlement to service connection for left ankle disability is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs