Citation Nr: 1327348	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  09-25 277	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for a left ankle disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. J. Houbeck, Counsel


INTRODUCTION

The Veteran had active service from May 1986 to May 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

The Veteran had a hearing before the undersigned Veterans Law Judge in November 2012.  A transcript of that proceeding has been associated with the Veteran's VA Virtual claims file.

The Veteran's claim was remanded for additional development by the Board in May 2013.  The requested development having been completed, the matter again is before the Board.

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence.


FINDING OF FACT

The preponderance of the evidence is against finding that the Veteran has a left ankle disability that is etiologically related to a disease, injury, or event in service.


CONCLUSION OF LAW

A left ankle disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  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).

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 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 Veteran and his or her 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless.

A VCAA letter dated in May 2008 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim.  The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  The letter also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

As noted above, the Veteran also was afforded a hearing before the undersigned during which he presented oral argument in support of his service connection claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the VLJ/AVLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claim that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims.  Based in part on the Veteran's representations during the hearing the Board remanded the Veteran's claim for another VA examination and VA treatment records.  Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).  

In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claim.  These arguments have referenced the applicable law and regulations necessary for a grant of service connection.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA treatment records are in the file.  Private medical records identified by the Veteran have been obtained, to the extent possible.  The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.

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 claims, as defined by law.  See 38 C.F.R. § 3.159(c)(4).  In this case, the Veteran was provided VA examinations in October 2010 and June 2011.  As will be discussed in greater detail below and detailed in its May 2013 remand of this issue, the Board found these examinations to be potentially contradictory and remanded the claim for additional examination.  The resulting VA examination was conducted in June 2013.  The examiner considered the Veteran's contentions, but concluded that he did not have a current diagnosis of a left ankle disability and that it was less likely than not that the Veteran's left ankle problems were related to his military service.  In addition, the examiner reconciled the conclusions and/or findings contained in the previous VA examination reports.  The decision was based on review of the claims file, interview of the Veteran, physical examination, and x-rays of the left ankle.  Based on the foregoing, the Board finds the examination report to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

Based on the association of VA treatment records, the June 2013 VA examination report, and subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its May 2013 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, 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).

Service Connection

Service connection may be established for 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, 1131 (West 2002 & Supp. 2012).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  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) (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).

For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).  In the instant case, however, there is no presumed service connection because arthritis of the left ankle was not medically diagnosed within one year of discharge.  Indeed, as will be discussed in greater detail below, the Veteran has not been diagnosed with left ankle arthritis.  Notwithstanding, the Board will consider whether service connection is otherwise warranted on a direct basis.

In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran 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."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Veteran contends that he has a left ankle disability as a result of his military service.  Specifically, the Veteran contends that the repetitive motion of his job duties during military service, including heavy lifting and carrying, repetitive motion, and ascending and descending stairs, caused his current left ankle problems.

The Veteran's service treatment records include August 1986, March 1991, May 1996, August 1998, August 2001 Reports of Medical Examination, which included normal findings as to the lower extremities.  In April 1995, the Veteran was involved in a motorcycle accident that resulted in right ankle pain.  At that time, the Veteran did not report left ankle problems.  In February 1997, the Veteran sought treatment after injuring his left ankle while playing softball.  On examination, there was minimal tenderness to palpation and minimal discomfort on range of motion testing.  The assessment was a second degree left ankle sprain.  In April 1998, the Veteran complained of bilateral foot pain, specifically in the arches.  The assessment was bilateral pes planus.  In an August 2001 Report of Medical History, the Veteran reported a history of foot trouble.  May 2005 x-rays showed mild degenerative changes of the right midfoot and small bilateral plantar calcaneal spurs.  The Veteran was treated for plantar fasciitis in September 2005 and December 2005.  

After service, the Veteran was afforded a general VA examination in March 2008.  The examiner noted review of the claims file.  At that time, the Veteran reported bilateral foot pain.  On examination, the Veteran had a normal gait.  There was no evidence of abnormal weight bearing.  X-rays of the bilateral feet showed minimal degenerative changes without acute bony abnormality.  The examiner did not diagnose a left ankle disability.

The Veteran was afforded another VA examination, in October 2010.  The examiner noted review of the claims file and medical records.  The Veteran reported left ankle problems beginning in service, which he attributed to carrying heavy welding equipment while serving aboard ship.  The Veteran reported left ankle symptoms that included deformity, instability, pain, stiffness, weakness, incoordination, swelling, and tenderness.  On examination, there was tenderness and pain at rest at the lateral collateral ligament of the left ankle without laxity.  Contemporaneous x-rays of the left ankle were normal, save for some plantar calcaneal spurring (for which the Veteran is separately service-connected).  The examiner diagnosed recurrent left ankle sprain grade 1.  The examiner did not provide an opinion as to the etiology of the disability.

The Veteran was afforded another VA examination, in July 2011.  The examiner noted review of the claims file and medical records.  The Veteran again reported the onset of symptoms during shipboard service carrying heavy welding equipment.  As to symptoms, the Veteran reported pain, stiffness, incoordination, and decreased speed of joint motion.  The Veteran denied ever having sprained his left foot.  On examination, the Veteran's gait was normal, but there was a finding of left ankle tenderness.  The examiner diagnosed mild degenerative disease of the left foot, but did not discuss or otherwise reconcile the October 2010 diagnosis of recurrent left ankle sprain grade 1 or find a specific left ankle disability.  (In that regard, the Veteran is separately service-connected for plantar fasciitis claimed as foot arch problems with heel spurs.)  The examiner concluded that the Veteran's left ankle condition was mild degenerative midfoot disease and was at least as likely as not related to his active duty service of going up and down ladders with heavy welding equipment, but not related to his in-service February 1997 left ankle sprain.

As the Board found the October 2010 and June 2011 VA examination reports inadequate and potentially contradictory, the Veteran was afforded yet another VA examination, this time in June 2013.  The examiner noted review of the claims file.  The examiner noted the Veteran's past diagnosis of left ankle sprain.  At that time, the Veteran reported falling aboard ship in 1990 or 1991, as well as spraining it "a little bit" in about 1988.  The Veteran had not been treated for his right ankle since separation from service in 2007.  On examination, there was no objective evidence of pain on range of motion testing and no additional functional loss following repetition.  Muscle strength was normal and there was no laxity.  The examiner concluded that the claimed left ankle condition was less likely than not incurred in or caused by military service.  The rationale was that while the Veteran had left ankle pain, there was no objective evidence of a left ankle disability.  The Veteran had an in-service left ankle sprain, for which he appeared not to have required follow-up treatment.  In addition, in 1998 and 2001, the Veteran reported foot but not ankle problems and he had not sought treatment for his left ankle since separation from service.  The examiner noted that the diagnosed midfoot disability and grade 1 left ankle sprain diagnosed in the above VA examinations were "separate conditions in separate anatomic locations.  The grade 1 ankle sprain is a particularly mild injury that would not be expected to have long-term sequellae and which appears to have resolved."

Having reviewed the complete record, the Board concludes that the preponderance of the evidence is against finding that the Veteran has a left ankle disability that was incurred in or otherwise related to military service.  

In reaching that determination, the Board finds the June 2013 VA examination report of significant probative value.  The examiner's opinions were based on an interview of the Veteran, his reported medical history, review of the medical evidence of record (including x-rays), and physical examination.  Further, a complete and thorough rationale was provided for the opinions rendered.  Specifically, the examiner concluded that it was less likely than not that the Veteran's left ankle problems were the result of his military service.  The examiner discussed the Veteran's in-service left ankle sprain, but noted that the Veteran did not appear to require follow-up treatment, which would be consistent with the diagnosis of a grade 1 sprain.  In addition, the Veteran's arthritis of the midfoot and other problems were separate conditions in separate anatomic locations.  The grade 1 left ankle sprain, as experienced in service, was a particularly mild injury that would not have expected long-term residuals.  Thus, the examiner provided multiple bases for the opinion rendered.  The examiner's conclusions are fully explained and consistent with the evidence of record.

The Board also has considered the reports of the Veteran that he has arthritis of the left ankle and that his left ankle problems are the result of heavy lifting, carrying, and other repetitive physical duties in service.  In that regard, individuals can attest to factual matters of which he or she has first-hand knowledge, such as left ankle pain, and the Veteran's assertions in that regard are entitled to some probative weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, diagnosing arthritis of the left ankle and determining the etiology of left ankle problems fall outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  In light of the foregoing and the complexity of diagnosing left ankle arthritis and attributing his current left ankle problems to non-injury activities (i.e. heavy lifting and carrying), the Board affords significantly more weight to the conclusions of the June 2013 VA examiner, which were based on the examiner's complete review of the claims file, the Veteran's contentions, x-rays, and physical examination.

The Board recognizes the Veteran's contention that he has been diagnosed with arthritis of the left ankle and contends that VA has not adequately addressed this in its determinations.  As clarified by the June 2013 VA examiner and discussed above, however, the diagnosed arthritis is of the midfoot, and not the left ankle.  As the Veteran certainly is competent to distinguish problems of the midfoot from problems of the ankle, such an arthritis diagnosis clearly is not relevant to the left ankle claim on appeal.  As the Veteran has been separately service-connected for a bilateral foot disability, any symptomatology associated with the arthritis of the mid foot would be best addressed in bringing a new claim for an increased or separate rating for such a disability of the midfoot.

As the Veteran was not diagnosed with left ankle arthritis or other chronic left ankle disability as defined by VA regulations in service or within one year of service, any lay statements regarding a continuity of left ankle symptoms are not sufficient to show a link between service and any current disability.  Continuity of symptomatology affords a route to service connection only for specific chronic diseases.  See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  No listed chronic condition is shown in service, and there is no clear diagnosis of one now.  

In conclusion, no medical professional has associated any current left ankle disability with any incident of the Veteran's military service, to include heavy lifting duties incurred therein, and the Board finds the conclusions of the June 2013 VA examination report of significantly greater probative value than the Veteran's lay contentions that he has left ankle arthritis and that this disability is related to heavy lifting and carrying in service.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection must be denied.  See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).


ORDER

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



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs