Citation Nr: 1323053 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 05-38 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left ankle disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1996 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that, in pertinent part, denied service connection for residuals of a left ankle sprain. The Board most recently Remanded the matter in April 2013 for further evidentiary development. In November 2011, the Veteran presented sworn testimony during a video conference hearing in Waco, Texas, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. FINDING OF FACT A preponderance of the evidence fails to establish that the Veteran currently has a left ankle disability that is attributable to his active service. CONCLUSION OF LAW A left ankle disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 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. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. A March 2004 letter provided all required notice elements except information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Additionally, a May 2008 letter provided information on disability ratings and effective dates in compliance with Dingess. Although this letter was not sent prior to initial adjudication of the Veteran's claim, this was not prejudicial to him. After he received the adequate notice letter in May2008, he was provided an opportunity to respond with additional argument and evidence and the claim was readjudicated in March 2010, June 2011, December 2012, and May 2013 supplemental statements of the case. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA treatment records, and VA examination report are in the file. Private treatment records identified by the Veteran have been obtained, to the extent possible. The Veteran has not identified any additional treatment records that he felt were relevant to his claim or that he wished for VA to obtain. The record indicates that the Veteran underwent VA examinations to evaluate his claimed left ankle disability in April 2004, July 2009, November 2009, and April 2012 with a May 2013 addendum opinion. The reports from those examinations and the medical opinion have been included in the claims file for review. The examinations and opinion involved a review of the claims file, a thorough examination of the Veteran (examinations only), and an opinion that was supported by sufficient rationale (opinion only). Therefore, taken together, the Board finds that the examinations and opinion of record are adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Some discussion of the Veteran's personal hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue on appeal was identified. Information was also elicited from the Veteran concerning his contentions regarding the nature and etiology of his left ankle complaints. Finally, this issue has been remanded several times for additional evidentiary development including providing the Veteran with an adequate VA examination and medical opinion. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC afforded the Veteran several VA examinations in response to the Board's remands. In response to the Board's most recent remand in April 2013, the AMC obtained an addendum medical opinion which has been deemed adequate as discussed above. Accordingly, all remand instructions issued by the Board have been substantially complied with and this matter is once again before the Board. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, 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 claims that he sprained his left ankle in service and that this has resulted in an ongoing left ankle disability. 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. 38 U.S.C.A. § 1110 (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. 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. 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 establish that the Veteran has a current left ankle disability. Although the VA examination reports note the Veteran's complaints of left ankle pain, none of these have associated his pain with an objective findings or a definitive diagnosis or any underlying disability of the ankle. The only left ankle abnormality noted by the July 2009 VA examiner was the Veteran's subjective reports of stiffness. Further, the November 2009 VA examiner noted the Veteran's history of a left ankle sprain, but concluded that he had no residual functional impairment. Finally, the April 2012 VA examiner indicated that the Veteran did not have an ankle condition at any point throughout the appeals period. The Veteran's VA and private treatment records are similarly negative for a diagnosed left ankle disorder, other than his subjective complaints of pain. The April 2004 VA examiner did provide a "diagnosis" of residuals of a sprained left ankle with episodic arthralgias. However, she did not identify any actual residuals other than arthralgias or pain. 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 examinations performed by the VA examiners at each of the VA examinations, as well as the x-rays and MRI provided, found no evidence of a left ankle disorder. The source of the pain could not be identified. Put another, the evidence does not show that the Veteran has a current left ankle disability or that he has had a chronic disability of the ankle during the pendency of the appeal. As such, the first element of Hickson is not met. Even if the Board were to accept that the Veteran's complaints of left ankle pain constituted a current disability, his claim would fail as there is no medical opinion linking his current left ankle complaints to his single episode of left ankle treatment in service. The Veteran has been afforded several VA examinations and an addendum medical opinion. Although the VA examinations addressed the nature of the Veteran's left ankle complaints, only the May 2013 provided an opinion on the etiology and any link to service. The May 2013 VA examiner noted the Veteran's June 2001 inservice treatment for a left ankle sprain and his current left ankle complaints. However, she concluded that it was not at least as likely as not that the inservice treatment and the current complaints were related. The examiner explained that the Veteran could not have had a chronic sprain left ankle since 2001 as he has worked in physically demanding jobs, including as a correctional officer. If he had an ongoing left ankle disability that was attributable to his military service, he would not have been able to perform the activities required for his job. Essentially, she concluded that there is no evidence that the Veteran had ongoing problems from the time of the inservice left ankle sprain to the present or that his left ankle complaints are otherwise related to his military service. As such, a medical nexus could not be established and service connection cannot be granted for the Veteran's claimed left ankle disability. The only other evidence which purports to link the Veteran's claimed current left ankle disability to his military service consists of the statements of the Veteran and his representative. Although laypersons, such as the Veteran and his representative, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of orthopedic medicine. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). While the Veteran can describe what he experiences (in this case, left ankle pain), he is not able to provide competent evidence as to the etiology of his left ankle pain or to attribute it to a particular diagnosis or any diagnosis at all. Providing such an opinion requires medical expertise in the identification of orthopedic disorders and the causes of such. The Veteran and his representative have no such expertise. See Jandreau, supra; see also 38 C.F.R. § 3.159 (a)(1) (2012). The Board is also aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. The Veteran complains of left ankle pain since service. The May 2013 VA examiner considered these complaints in forming their opinions. However, she still found that his current complaints were not related to his active service. Further, the Board notes that the provisions of 38 C.F.R. § 3.303(b) only apply to chronic diseases as listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has not been diagnosed with any left ankle disorder, such as arthritis, that is on the list of chronic diseases. As such, the Board finds that the medical nexus element of Hickson cannot be met via continuity of symptomatology. As explained above, the competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's inservice left ankle sprain and his current complaints of left ankle pain. Although the Board notes the Veteran's current complaints and in-service treatment, without sufficiently probative evidence of a medical nexus, service connection cannot be granted. Accordingly, the Board finds that the claim of entitlement to service connection for a left ankle 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 disability is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs