Citation Nr: 1322919	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  10-13 875	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for a left ankle disorder. 


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

Rutkin, Joshua M.







INTRODUCTION

The Veteran served on active duty from August 1973 to November 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.


FINDING OF FACT

The Veteran does not have a current left ankle disability, and symptoms of left ankle pain were not caused or aggravated by a left ankle sprain during active military service or otherwise related to service. 


CONCLUSION OF LAW

A disability of the left ankle was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence of record, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  See id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  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 claimant).  

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 claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107 (West 2002).  Under this standard, a claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, 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.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

All notice under the VCAA should generally be provided prior to an initial 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).  However, a delay in timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through issuing a statement of the case or supplemental statement of the case) after the claimant has had an opportunity to submit additional evidence.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  

A claim of entitlement to service connection consists of five elements: (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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006).  The Court has held that notification of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) requires notice of these five elements.  See id. at 486; Quartuccio, 16 Vet. App. at 187. 

Here, prior to the initial rating decision in this matter, a February 2009 letter informed the Veteran of all five elements of service connection, gave examples of the types of evidence he could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining relevant records and other evidence on his behalf.  Therefore, the duty to notify is satisfied.  See id.

VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

Here, the Veteran's service treatment records and service personnel records are in the claims file, as well as VA examination reports.  Private medical records submitted by the Veteran are also in the file.  He has not identified any other records or evidence that remains outstanding.  Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied.  See 38 C.F.R. § 3.159(c).  

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.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.

Here, a VA examination of the Veteran's ankle was performed in December 2012.  The VA examination is adequate for deciding this claim.  In this regard, the examiner reviewed the claims file and medical history, conducted an examination of the Veteran and recorded the clinical findings, and provided a clear explanation for the opinion stated which is consistent with the evidence of record and enables the Board to make an informed decision.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  There are no apparent inconsistencies or ambiguities in the examination report, and the Veteran has not challenged its adequacy or thoroughness, or the competency of the examiner.  See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291.  Accordingly, VA's duty to provide a VA examination and opinion has been met.  See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. 

In sum, VA's duties to notify and assist under the VCAA have been satisfied.  The Veteran has had ample opportunity to participate in the development of his claim.  See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")).  As shown above, any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication."  See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thus, any error in the notice or assistance provided was harmless, and no prejudice exists.  See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002) (providing that the Court must take due account of the rule of prejudicial error).  Accordingly, the Board may proceed with appellate review.  

II. Analysis

The Veteran claims entitlement to service connection for a left ankle disorder.  For the following reasons, the Board finds that service connection is not warranted. 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

The Federal Circuit has distinguished two evidentiary requirements for establishing service connection depending on the type of disorder being claimed.  For any disorder not defined by VA as a "chronic disease," the Federal Circuit held that a three-element test must be satisfied under subsection 3.303(a) of the regulations in order to establish entitlement to service connection.  Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Id.

However, claims for chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary requirement under subsection 3.303(b).  See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases").  Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in a claim for arthritis or abnormal heart action in a claim for heart disease) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Walker, 708 F.3d at 1338-1339.  Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases.  Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease").  A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. at 1338.  

In other words, while a current disability must always be established in any service connection claim, the evidence required to show that the disability was incurred in or aggravated by active service differs according to whether the disability is defined as a chronic disease.  If the disability in question is not defined as a chronic disease, then a "medical nexus" between active service and the claimed disability must be established under the three-part test set forth in Shedden discussed above.  If the claimed disability is considered a chronic disease, then a relationship to service may be established by a chronicity in service or a continuity of symptoms after service, which is a less demanding evidentiary showing.  See id.

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary requirements under section 3.303(b).  Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id.  Thus, if the claimed disability is not one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology requirement does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service connection benefits.  Id.  

In the case at hand, the evidence does not show any pathology of the left ankle during the pendency of this claim.  The service treatment records reflect that in May 1975 the Veteran sustained a severe left ankle strain.  An x-ray study showed no fractures at the time.  His left lower extremity was placed in a short leg walking cast for two weeks.  A June 1975 service treatment record states that "[s]ince that time, he has done quite well and has had no problems with the cast on the left lower extremity."  The cast was removed at this time and the Veteran was advised to walk as tolerated.  The November 1975 separation examination report does not reflect any clinical findings.  In the accompanying November 1975 Report of Medical History, the Veteran indicated that he had a history of foot trouble and swollen or painful joints, but stated that he had "no problems" with regard to his present health.  

There are no post-service treatment records that mention the Veteran's left ankle.  There is also no other contemporaneous evidence reflecting left ankle problems in the period of over three decades that elapsed between the Veteran's service and the January 2009 date of the present claim.  

In a March 2010 statement, the Veteran wrote that a severe left ankle sprain could cause the ankle to "build up arthritis of the years" and that this progression is what happened to his ankle.  He stated that he did not report any problems in his separation examination because he was concerned that his required length of service would be extended if he did report medical problems.  He stated that after service he worked to support his family and did not go to the doctor.  Rather, he "worked through the pain."  He further stated that he had a limp due to his left ankle injury.

The December 2012 VA examination report shows that the examiner did not find any pathology of the ankle after performing a thorough examination.  An x-ray study performed at this time did not reveal any left ankle abnormalities.  The Veteran's gait was normal, and there were no limitations with regard to range of motion, including on repeat testing.  The Veteran's left ankle was also tested for strength and stability and the examiner indicated that both were normal.  The Veteran reported mild tenderness in the area of the left anterior talofibular ligament with deep palpation and ankle range of motion.  He also reported ankle pain with prolonged standing and walking.  In this regard, the Veteran related that he worked at a printing factory and that during long hours of standing he experienced occasional ankle stiffness or discomfort.  He stated that there had been no "formal evaluation" of his ankle symptoms since his original injury.  He further related that in recent years he experienced increased left ankle pain and stiffness which he self-treated with over-the-counter medication.  The examiner provided a diagnosis of a resolved left ankle sprain. 

After reviewing the claims file, including the service treatment records documenting the severe left ankle sprain, and examining the Veteran, the examiner opined that the Veteran's left ankle condition was less likely than not caused or aggravated by the in-service sprain.  The examiner explained that there was no documentation to suggest evidence of chronic left ankle symptoms or disability.  Thus, because the evidence did not show chronic left ankle symptoms since service, the examiner concluded that it was less likely than not that his current symptoms were related to service. 

Based on the evidence discussed above, the Board finds that there is no competent evidence of a current disability of the left ankle.  The Veteran is competent to report experiencing pain and stiffness of the left ankle, as these symptoms are a matter of first-hand experience.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge).  However, 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, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).  

Lay evidence can be competent with respect to both the diagnosis and the etiology of a disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  However, whether the Veteran has arthritis or another disorder of the ankle underlying his symptoms is a medical determination that is too complex to be made based on lay observation alone.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Thus, the Veteran's opinion that he has arthritis or other pathology of the ankle related to service carries little weight, and is outweighed by the findings to the contrary of the December 2012 VA examiner, who is a medical professional with the expertise to make this assessment.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the medical issue in question); see also Layno, 6 Vet. App. at 469; Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence").  The VA examiner's findings are highly probative and carry a lot of weight in the Board's determination, as they were made by a medical professional based on x-ray studies, an examination of the Veteran, and a review of the history reflected in the claims file and as reported by the Veteran. 

In the absence of competent evidence of a current disability, service connection cannot be established for the Veteran's left ankle symptoms. Shedden, 381 F.3d at 1166-67 (holding that entitlement to service connection compensation benefits requires, among other things, the existence of a current disability); see also Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).

The preponderance of the evidence also weighs against a relationship between the Veteran's current left ankle symptoms and the left ankle sprain during service.  As found by the VA examiner, the long period of over thirty years that elapsed between the Veteran's in-service sprain, which occurred in 1975, and the left ankle symptoms reported by the Veteran in support of this claim, without documentation of any chronic ankle disorder in the interim, weighs against such a relationship.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service, and that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a condition was incurred in service).  Rather, the evidence shows that the Veteran sustained an acute sprain in service which has since resolved without any residual or chronic problems, as found by the VA examiner. 

Moreover, because a chronic disease, including arthritis, has not been diagnosed with regard to the Veteran's left ankle, the provisions of subsection 3.303(b) do not apply, and therefore the mere allegation of a continuity of symptoms since service is not sufficient to support the claim.  See Walker, 708 F.3d at 1336-37, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as the Federal Circuit found that the claimant's hearing loss was not among the chronic diseases listed in section 3.309(a)).  The VA examiner did take into account the Veteran's reported history of occasional pain and stiffness of the ankle from standing for prolonged periods of time as a factory worker-symptoms which reportedly worsened in recent years-but did not find this history sufficient to support a relationship to service.  

Further, because no abnormalities of the left ankle were found or reported at separation from active service, because the Veteran denied seeking treatment for left ankle problems in the period of over thirty years that elapsed since that time, and because he has only mentioned left ankle symptoms in the context of a claim for compensation benefits, it is also not plausible or credible that he has had a continuity of left ankle symptoms ever since service.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the Board may "weigh the absence of contemporaneous medical evidence against the lay evidence of record" and that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."); Caluza, 7 Vet. App. at 511 (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its plausibility and consistency with other evidence submitted on behalf of the Veteran); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by the claimant).  

Accordingly, a nexus between the Veteran's left ankle symptoms and his period of service has not been established.  Therefore, the three-element test under Shedden has not been satisfied, and service connection is not warranted.  Shedden, 381 F.3d at 1166-67; see also 38 C.F.R. § 3.303.

In sum, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a left ankle disability is denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 


ORDER

Entitlement to service connection for a left ankle disorder is denied. 



____________________________________________
P.M. DILORENZO 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs