Citation Nr: 1325069 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 07-25 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for chronic superior peroneal retinaculum injury with associated mild tenosynovitis of the peroneal tendons, flexor hallucis longus tenosynovitis, left ankle sprain, left ligamentum laxity, left limb length inequality, and residuals of repair of left lateral ankle structures (a left ankle disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from August 1976 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC for additional development of trying to obtain records from the Social Security Administration and disability retirement records. The remand order was complied with. The matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. The Veteran experienced left ankle injuries and pain and sustained left ankle in service. 2. The Veteran's current left ankle disability is etiologically related to the left ankle pain and left ankle injuries sustained during service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a left ankle disability have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The claim of service connection for a left ankle disability has been considered with respect to VA's duties to notify and assist. Given the favorable outcome adjudicated herein, no conceivable prejudice to the Veteran could result from this decision, and further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Court has held that "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." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, chronic superior peroneal retinaculum injury with associated mild tenosynovitis of the peroneal tendons, flexor hallucis longus tenosynovitis, ankle sprain, ligamentum laxity, limb length inequality, and residuals of repair of lateral ankle structures are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. a 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for a Left Ankle Disability The Veteran contends that the current left ankle disability is directly related to his active service. Specifically, the Veteran alleges that he injured his left ankle multiple times in service and has experienced problems with his ankle since service separation. He has also contended that his current ankle disability, which necessitated a May 2010 surgery, is related to the in-service ankle injuries. In a September 2007 statement, the Veteran wrote that he had sprained his ankle many times during service and that he did not always seek treatment for these injuries. The Veteran indicated that his in-service ankle injuries had not yet abated. After a review of all the evidence, lay and medical, the Board first finds that the Veteran has a current left ankle disability. The Veteran underwent an MRI assessment of the left ankle in January 2008. The resulting impression was chronic superior peroneal retinaculum injury with associated mild tenosynovitis of the peroneal tendons, flexor hallucis longus tenosynovitis. In a private treatment report from December 2009, the Veteran presented with a painful left ankle and was diagnosed with an ankle sprain, ligamentum laxity, and limb length inequality. On the question of current diagnosis, in a January 2012 VA examination, the VA examiner diagnosed repair of the lateral ankle structures. The Board next finds that the Veteran had left ankle pain and sustained injuries to his left ankle in service. In a service report of his medical history in November 1978, the Veteran indicated experiencing pain in his ankle and knee joint in August 1976. Indeed, a service treatment record from December 1976 indicates that the Veteran had an ankle injury four months prior (in approximately August 1976). A December 1978 service treatment record reflects that the Veteran reported twisting his left ankle outwards while playing basketball the day prior to treatment, and complained of pain to the Achilles tendon without swelling. The diagnosis was a pulled tendon, and the prescribed treatment was wintergreen and an Ace wrap. The Board further finds that the evidence of record is at least in relative equipoise on the question of whether the Veteran's left ankle disability is etiologically related to active service. Evidence favorable to the Veteran's claim is included in an October 2006 private medical opinion. In this opinion, a private examiner noted the Veteran's in-service ankle injury. Reviewing the post-discharge treatment records, the private examiner reported that a May 1995 private X-ray examination report indicated a dorsal calcaneal spur. Having noted this evidence and the Veteran's report of "recurrent problems with his left ankle as of this appeal," the private examiner opined that the Veteran's in-service left ankle injury was the cause of a chronic ankle disorder that had continued after service. The private examiner's opinion was that the ankle disorder would be an on-going, recurrent, permanent problem. Additional favorable evidence supportive of the Veteran's claim is included in a December 2009 private treatment record. There, the Veteran reported that he had experienced a gradual onset of left ankle pain since an in-service injury in November or December 1978. The Veteran reported that he had a "distinct ankle sprain" in service which was treated with Ace bandages and wintergreen. The Veteran stated that he experienced continued pain and subsequent "weak" ankle following this injury. The pain was reported to be of a sharp, shooting nature, exacerbated by activity, and alleviated with rest. The private physician diagnosed an ankle sprain, ligament laxity, and limb length inequality, left shorter than right. The private examiner stated that she had conducted a medical examination and had reviewed the Veteran's military and post-service treatment records. The private physician opined that the Veteran's "ankle disorder symptoms, conditions, diagnoses ... are at least, as likely, as not, to have first manifested or were aggravated/caused secondary to injuries, which had their onset in the military." Here, while the treatment of the left ankle is dated years after his initial claim for service connection and years after his claim to reopen service connection for a left ankle disability, the Veteran's statements were made during the course of treatment. The Veteran would be expected to give a full and accurate history to a medical provider when seeking treatment to ensure adequate care. Cartright, 2 Vet. App. at 25; Pond v. West, 12 Vet. App. 341 (1991). The Veteran underwent a VA examination of the left ankle in January 2012. In the January 2012 VA medical examination report, the examiner reported reviewing the claims file and performing a physical examination. The January 2012 VA examiner opined that the Veteran's left ankle disability was not at least as likely as not incurred in or caused by any in-service injury, event, or illness. The examiner explained that the Veteran had a one-time, non-specific sprain/strain of the left ankle on active duty, which occurred ten months prior to separation from service and with no recurrence. He further reasoned that the Veteran had only reported ankle pain over 16 years after service. Here, while the examiner indicated a review of the service treatment records, he did not comment on, or address the significance of, the August 1976 ankle injury. Indeed, there was more than a one-time ankle injury during service in contradiction with the examiner's explanation for the medical opinion. See Reonal, 5 Vet. App. at 461 (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Therefore, the January 2012 VA examiner's opinion is not of probative value in this matter. In contrast, the October 2006 and December 2009 private opinions from two separate treating health care professionals are competent and probative medical evidence because they are factually accurate, as it appears the Veteran's treating physicians had knowledge of the relevant evidence in this case, relied on accurate facts, and gave fully articulated opinions that are supported by sound reasoning. There is no other competent medical opinion of record against the claim that directly addresses the etiology of the left ankle disability. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for a left ankle disability (tenosynovitis of the peroneal tendons, flexor hallucis longus tenosynovitis, ankle sprain, ligamentum laxity, and limb length inequality, status post repair) have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a left ankle disability is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs