Citation Nr: 1325418 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 11-00 561 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to an effective date earlier than April 11, 2008, for the grant of service connection for residuals of a right ankle injury, to include a right ankle sprain. 2. Entitlement to service connection for residuals of a left leg disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran had active service from January 1989 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2007 and December 2008 RO rating decisions. The July 2007 RO decision, in pertinent part, denied service connection for a left leg disability (listed as residuals of a left leg injury). The December 2008 RO decision, in pertinent part, granted service connection and a 10 percent rating for residuals of a right ankle injury, to include a right ankle sprain (listed as a right ankle sprain), effective April 11, 2008. The Board notes that a December 2010 statement of the case identifies a December 2008 RO decision in which the RO apparently reopened and denied the claim of entitlement to service connection for a left leg disability. The July 2007 and November 2007 RO decisions that denied entitlement to service connection for a left leg disability, respectively, are not final, however. The Veteran essentially expressed disagreement with both the July 2007 and November 2007 RO decisions and additional evidence was obtained within one year of those decisions. Consequently, the July 2007 RO decision and the November 2007 RO decision are both not final, and the Veteran's claim has been pending since January 31, 2007 (the date of his original claim). See 38 C.F.R. § 3.156(b) (2011); Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). The issue of entitlement to service connection for residuals of a left leg disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. On January 31, 2007 (years after the Veteran's separation from service), the RO received the first formal or informal claim for service connection for residuals of a right ankle injury. 2. A September 2007 VA orthopedic examination report relates an impression that included status post necrotic ulcer of the right ankle and distal shin, without evidence of joint abnormality, and with a residual scar and localized dysthesia. 3. In a November 2007 rating decision, the RO granted service connection for a 2 inch by 3/4 inch scar, with dysthesia, as a residual of a right ankle injury, with a necrotic ulcer of the right distal shin, rated at 10 percent, effective January 31, 2007. 4. An August 2008 VA orthopedic examination report indicates diagnoses that included a sprain of the right ankle; necrotic ulcer of the skin over the tibial malleoli, and dysthesia over the scar. 5. The RO subsequently granted service connection and a 10 percent rating for right ankle sprain, effective April 11, 2008. 6. The effective date for service connection for residuals of a right ankle injury, to include a right ankle sprain, is January 31, 2007, the date of the Veteran's first formal or informal claim for service connection for residuals of a right ankle injury. CONCLUSION OF LAW The criteria for an earlier effective date of January 31, 2007, for the grant of service connection for residuals of a right ankle injury, to include a right ankle sprain, rated at 10 percent, have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. The Veteran claims that the effective date of service connection should be January 31, 2007. In light of the fully favorable decision as to the issue of entitlement to an effective date earlier than April 11, 2008, for service connection for residuals of a right ankle injury, to include a right ankle sprain, rated as 10 percent disabling, the Board finds that no further discussion of VCAA compliance is warranted. Analysis The law provides that the effective date for an award of service connection is the day following separation from active duty, or the day entitlement arose, if the claim is filed within the year after active duty. When the claim is filed more than a year after active duty, the effective date for service connection will be the date of VA receipt of the claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). A claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. 38 U.S.C.A. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). Treatment records by themselves do not constitute "informal claims" for service connection. 38 C.F.R. § 3.157; Sears v. Principi, 16 Vet. App. 244 (2002). While the VA should broadly interpret submissions from a veteran, it is not required to conjure up claims not specifically raised. Brannon v. West, 12, Vet. App. 32 (1998). The Veteran contends that service connection for residuals of a right ankle injury, to include a right ankle sprain, should be effective prior to April 11, 2008. He specifically alleges that service connection should be effective from the date of his initial claim for service connection for residuals of a right ankle injury on January 31, 2007. He maintains that the RO granted service connection for a right ankle scar on January 31, 2007, but only granted service connection for residuals of an ankle injury, to include a right ankle sprain, effective April 11, 2008. The Veteran indicates that his right ankle injury actually preceded his right ankle scar and was the cause of the scar. Therefore, the effective date of service connection for residuals of a right ankle injury, to include a right ankle sprain, should not be subsequent to the effective date of service connection for his right ankle scar. The Veteran had active service from January 1989 to March 1992. The Veteran's service treatment records indicate that he was treated for right ankle and right shin problems on multiple occasions. A July 1991 treatment entry notes that the Veteran complained of right ankle pain for one day. The Veteran reported that he did not remember hurting his ankle. He stated that he felt some pain when he took off his boot and that his ankle was swollen at that time. The assessment was a second degree right ankle sprain. A July 1991 radiological report, as to the Veteran's right ankle, notes that he complained of right ankle pain and edema for two days that occurred a few hours after an eight mile road march. It was noted that there was no history of trauma. The examiner indicated that the Veteran's right ankle was within normal limits. A subsequent July 1991 emergency care and treatment report notes that the Veteran complained of a right ankle injury that occurred three days earlier during a march. The Veteran stated that he noticed pain during the march. It was noted that the Veteran's right ankle was positive for edema, deformity, decreased range of motion, and joint tenderness. The examiner reported that that X-rays show a lateral malleolus fracture, non-displaced, and a tibial fracture. The assessment was right ankle fracture, with a lateral malleous fracture and a distal tibial fracture, non-displaced. A July 1991 radiological report, as to the Veteran's right ankle, on that same day, indicated that a fracture of the right ankle needed to be ruled out, status post blunt trauma. The examiner, at that time, maintained that there was marked circumferential soft tissue swelling and that no fractures were seen. A July 1991 hospital discharge summary notes that the Veteran felt he had sprained his right ankle approximately five of six days before admission. It was noted that the Veteran was seen by a physician's assistant at that time, and that he was given Motrin. The examiner reported that the Veteran continued to have pain and was seen in the emergency room about three days after the original injury, and that he was placed in posterior splint and given quarters in the barracks. The examiner stated that the Veteran then returned to the emergency room complaining of pain in his anterior shin over the distal third of the tibia. It was noted that the splint was removed and that a necrotic ulcer was found underneath the splint. The examiner reported that an orthopedic consultation was obtained, and that irrigation and debridement was performed that night in the emergency room. The examiner reported that a culture was obtained that shows Staphylococcus Aureus and that the wound was packed. It was noted that the Veteran underwent an irrigation and debridement in the emergency room; an irrigation and debridement in the operating room the next day; and a partial closure of the necrotic ulcer ten days later. The discharge diagnosis was a right necrotic ulcer of the distal shin. It was noted that the Veteran's condition had improved on discharge. On January 31, 2007, the Veteran filed his initial claim for service connection for residuals of a right ankle injury. He reported that he had a right ankle injury that developed an ulcer from exercise from a road march during service in 1991 or 1992. In July 2007, the RO denied service connection for residuals of a right ankle injury (listed as residuals of a right ankle injury with a necrotic ulcer of the right distal shin). The RO noted that the Veteran did not report for a VA examination scheduled in June 2007. An August 2007 report of contact indicates that the Veteran stated that he called a VA facility to have his examination rescheduled. It was noted that the claim was closed out, that the Veteran was never set up for another examination, and that a new examination should be rescheduled. A September 2007 VA orthopedic examination report notes that the Veteran's claims file was reviewed. The Veteran reported that a day after a road march during service, he noted swelling and pain in the right ankle. He stated that he was not aware of a specific injury during the march. The Veteran indicated that he noticed increased swelling the next day and that he was found to have an ulcer that was treated with surgery. He reported that the opening was gradually closed until it healed. The Veteran indicated that since that time, the site of the ulcer (scar) had been sensitive when touched. He stated that the area was currently painful during the winter. The pain was a dull ache that was constant at a five out of ten level while he was out in the cold. The examiner discussed the Veteran's service treatment records in some detail. The examiner stated that that current radiographs of the Veteran's right ankle were read as showing no abnormality. The impression included status post necrotic ulcer of the right ankle and distal shin, without evidence of ankle joint abnormality, and with residual scar and localized dysesthesia. In November 2007, the RO granted service connection for a 2 inch by 3/4 inch scar, with dysthesia, as residuals of a right ankle injury, with a necrotic ulcer of the right distal shin, rated at 10 percent, effective January 31, 2007. In an April 11, 2008, statement, the Veteran reported that as he had aged, his right ankle had caused more pain and discomfort. The Veteran stated that he was receiving a 10 percent disability rating for a right ankle disability. An August 2008 VA orthopedic examination report includes a notation that the Veteran's claims file was not available. It was noted that the Veteran had military service from January 1989 to March 1992. The Veteran reported that he had a sprain of the right ankle after marching in 1991. He stated that he was treated with immobilization and a bandage. He indicated that the bandage of the right ankle was too tight, that the ankle was very swollen, and that it developed a pressure necrotic ulcer. The Veteran reported that he was admitted to a military hospital where he was treated for one month. It was noted that after the ulcer healed, he was able to resume his active duty. The Veteran reported that he had an X-ray during service that was negative for any fracture or dislocation of the right ankle. He stated that since his discharge from service, he had suffered chronic pain in the right ankle and hypersensitivity to the scar when touched. The Veteran reported that he was not able to walk long distances and that he was not able to run because of flare-ups of pain in the right ankle. He stated that he would also have flare-ups of pain when going up and downs stairs. He indicated that he was taking over-the-counter medication such as Advil and Ibuprofen. It was noted that the Veteran was presently working as a semi truck driver and that he was able to drive. The Veteran reported that he did not have any incapacitating episodes or hospital admissions related to his right leg condition. The examiner indicated that the Veteran's last X-ray, as to his right ankle joint, was reviewed and that the impression was that his ankle mortise was intact. The diagnoses included sprain of the right ankle; necrotic ulcer of the skin over the tibial malleoli; and dysthesia over the scar. In December 2008, the RO granted service connection and a 10 percent rating for residuals of a right ankle injury, to include a right ankle sprain (listed a right ankle sprain), effective April 11, 2008 (the date of the April 11, 2008, statement in which the Veteran reported that his right ankle had caused more pain and discomfort). The RO continued the 10 percent rating for a 2 inch by 3/4 inch scar, with dysthesia, as a residual of a right ankle injury, with a necrotic ulcer of the right distal shin. The Veteran essentially asserts that service connection for residuals of a right ankle injury, to include a sprain, should be effective as of January 31, 2007, the date of his initial claim for residuals of a right ankle injury. He specifically contends that his right ankle injury during service actually preceded his right ankle scar and was the cause of the scar, and that service connection for his residuals of a right ankle injury, to include a right ankle sprain, should be effectuated on the same date as his service-connected 2 inch by 3/4 inch scar, with dysthesia, as a residual of a right ankle injury. The controlling law and regulations regarding effective dates are clear. The effective date of an award of compensation based on an original claim (received beyond one year after discharge), will be the date of VA receipt of the claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). In this case, the Veteran filed his initial claim for service connection for residuals of a right ankle injury on January 31, 2007. Although a July 2007 RO decision denied service connection for residuals of a right ankle injury, the Veteran essentially expressed disagreement with that decision and additional evidence was obtained within one year of that decision. Consequently, the July 2007 RO decision is not final and the Veteran's claim has been pending since January 31, 2007 (the date of his initial claim for service connection for residuals of a right ankle injury). See 38 C.F.R. § 3.156(b) (2011); Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). A November 2007 RO decision solely granted service connection for a 2 inch by 3/4 inch scar, with dysthesia, as a residual of a right ankle injury, with a necrotic ulcer of the right distal shin. Additionally, the Board notes that the first post-service evidence of record of any possible residuals of a right ankle injury is pursuant the September 2007 VA orthopedic examination report and the first specific evidence of a right ankle sprain is pursuant to an August 2008 VA orthopedic examination report. The September 2007 VA orthopedic examination report and the August 2008 VA orthopedic examination reports both refer to the Veteran's history of right ankle complaints since his period of service. The Board observes that although the RO effectuated service connection for a 2 inch by 3/4 inch scar, with dysthesia, as a residual of a right ankle injury, with a necrotic ulcer of the right distal shin, and for residuals of a right ankle injury, to include a right ankle sprain, on different dates, respectively, the Veteran has clearly been claiming that he is entitled to service connection for right ankle problems since his initial claim on January 31, 2007. Additionally, the Veteran has reported that he suffered from right ankle problems, to include a scar, since his period of service. The Veteran is competent to report right ankle symptoms in service, continuous right ankle symptomatology since service, and current symptoms that form the basis for diagnosis of disability. See Davidson. Moreover, the Board finds that the Veteran's reports in this regard are credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Given such circumstances, and resolving reasonable doubt in favor of the Veteran, the Board will consider the date entitlement arose for residuals of a right ankle injury, to include right ankle sprain, to be at least the date of his January 31, 2007 claim. See Akers v. Shinseki, 673 F.3d 1352, 1359 (Fed. Cir. 2012). As the law for assigning effective dates directs that the effective date of an award of compensation based on an original claim (received beyond one year after discharge), will be the date of VA receipt of the claim, or date entitlement arose, whichever is later, and in this case, the date of claim and date entitlement arose are on the same date (the date of the January 31, 2007 initial claim for service connection for residuals of a right ankle injury), the Board finds that January 31, 2007, is the proper effective date for the grant of service connection for residuals of a right ankle injury, to include a right ankle sprain. ORDER An earlier effective date of January 31, 2007, for service connection for residuals of a right ankle injury, to include a right ankle sprain, is granted. REMAND The remaining issue on appeal is entitlement to service connection for a left leg disability. The Veteran contends that he has a left leg disability that is related to service. He specifically maintains that he suffered a left calf injury as a result of a motorcycle accident during service and that he pulled tendons behind his left knee cap, as well as tendons in his left ankle. He reports that he has pain in his left leg that extends from his posterior knee to his ankle. He indicates that he cannot stand on his left leg for extended periods of time, and that he has muscle cramping in his left leg almost every night. The Veteran essentially maintains that he suffered from left leg problems during service and that he has had left leg problem since service. The Veteran is competent to report left leg symptoms in service; continuous left leg symptomatology since service; and current symptoms that form the basis for diagnosis of disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's service treatment records indicate that he was treated for left leg and left knee problems on multiple occasions. A July 1989 treatment entry notes an assessment of rule out mild runner's knee pain; an August 1989 treatment entry notes that the Veteran complained of left knee pain for four days and records an assessment of normal examination with no varus and valgus stress, and a negative McMurray's test; a July 1990 hospital narrative summary indicates that the Veteran was admitted with a chief complaint of left calf pain after a seventy mile per hour motorcycle accident, and recorded a discharge diagnosis of left calf contusion; an August 1990 treatment report reflects that the Veteran complained of left calf pain when he walked and noted an assessment of sore muscle due to use; a December 1990 treatment entry indicates that the Veteran complained of left knee pain for one day after being in a motorcycle accident five months earlier; another December 1990 entry noted an assessment of bruised knee/sequelae of Osgood-Schlatter's; and June to October 1991 treatment entries reflect left knee contusion, left knee injury, and infrapatellar bursitis. A post-service September 2007 VA orthopedic examination report notes that the Veteran's claims file was reviewed. The Veteran reported that he was involved in a motorcycle accident while on active duty in 1990 or 1991. He stated that he was taken to a hospital and given a diagnosis of a crushed (left) calf. He indicated that he was treated with a splint and crutches and that he then returned to normal duties. The Veteran reported that his left calf was painful, which he described as a charley horse feeling, more frequently than his right leg. He stated that the pain would occur two to four times a month and that it would extend from the posterior left knee to the ankle. The examiner reported that radiographs, as to the Veteran's left leg, had been read as no abnormality seen. The impression included status post a contusion of the left calf without a demonstrated abnormality. An August 2008 VA orthopedic examination report includes a notation that the Veteran's claims file was not available. The Veteran reported that he was in a motorcycle accident during service and that he suffered a contusion of the left lower leg and calf. It was noted that the Veteran did not have any fractures or contusions of the muscles. The examiner indicated that the Veteran did not presently complain of muscle pain or pain in the neighboring joints. The diagnoses included contusion of the left lower leg. The Board observes that the examiner at the August 2008 VA orthopedic examination did not review the Veteran's claims file. Additionally, the examiner related a diagnosis of a contusion of the left lower leg, but also reported that the Veteran did not complain of muscle pain or pain in the neighboring joints of the left leg. The previous September 2007 VA orthopedic examination report relates an impression of status post contusion of the left calf without a demonstrated abnormality. The Board notes that there appears to be some contradiction in the diagnoses provided pursuant to the September 2007 and August 2008 VA orthopedic examination reports. Further, the examiners, pursuant to both of those examinations, respectively, did not specifically address the Veteran's reports of left leg and knee problems during service and since service. See Davidson, supra. The Board also notes that the VA examiners did not specifically discuss the Veteran's treatment for left knee problems, as opposed to left calf problems, during his period of service. Therefore, for this matter, the Veteran has not been afforded a VA examination with the opportunity to obtain a responsive etiological opinion, following a thorough review of the entire claims folder. Such examinations should be accomplished on remand. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Prior to the examinations, any outstanding records of pertinent treatment should be obtained and added to the record. Accordingly, these issues are REMANDED for the following: 1. Ask the Veteran to identify all medical providers who have treated him for left leg problems since his separation from service. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of his claimed left leg disability. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. The examiner must diagnose all current left leg disabilities, to include any left knee disabilities. Based on a review claims file, examination of the Veteran, and generally accepted medical principles, the examiner should provide a medical opinion, with adequate rationale, as to whether it is as at least as likely as not that any diagnosed left leg disabilities, to include left knee disabilities, are etiologically related to his period of service. The examiner must specifically acknowledge and discuss the Veteran's report that he suffered left leg and left knee problems during service and since service. See also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). All findings and conclusions must be set forth in a legible report. 3. Then readjudicate the Veteran's claim of entitlement to service connection for a left leg disability. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and provide an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs