Citation Nr: 1328953 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 10-10 265 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for a bilateral knee condition. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served in the United States Army Reserve between September 1981 and November 1997. During that time, she had verified and unverified periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), including initial ACDUTRA from October 16, 1981, to December 18, 1981. She also had a period of ACDUTRA from December 6, 1986, to December 20, 1986. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the RO, which in pertinent part, denied service connection for denied service connection for both bilateral ankle and bilateral knee injuries. In November 2012, the Board remanded the claims of service connection for bilateral knee and ankle disorders for further evidentiary development, to include obtaining a VA examination. By way of a February 2013 rating decision, the RO granted service connection for a left ankle strain and assigned a 10 percent evaluation. A Supplemental Statement of the Case (SSOC) was issued in February 2013 denying service connection for a right ankle disorder. Thus, the issue of service connection for a right ankle disability remains on appeal. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran is shown to have a right ankle disability manifested by a small calcification between the medial border of the talus and the medial malleolus that as likely as not is due to an injury sustained during a period of ACDUTRA. 2. The Veteran is not shown to have manifested complaints or findings referable to a knee disorder in service or for many years thereafter. 3. The currently demonstrated osteoarthritis of both knees is not shown to be due to an event or incident of any of the Veteran's periods of ACDUTRA or INACDUTRA. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, her right ankle disability was is due to an injury that was incurred in a period of ACDUTRA. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.304 (2012). 2. The Veteran's bilateral knee disability manifested by osteoarthritis is not due to disease or injury that was incurred in or aggravated by a period of ACDUTRA or an injury that was incurred in or aggravated by a period of INACDUTRA. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided a pre-adjudication VCAA notice letter in August 2008. The Veteran was notified of the evidence needed to substantiate the claims for service connection, as well as what information and evidence must be submitted by the appellant, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claims. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. The available service treatment records, post-service medical records and lay statements have been associated with the record. The Board notes that after extensive efforts, the RO has been unable to obtain from the service department portions of the service treatment records and verification of service. See September 2009 Formal Finding on the Unavailability of Service Records. The record also indicates that the RO has made multiple attempts to obtain these records. In this regard, the RO has provided duty to assist letters in February and September 2009 informing the Veteran of the RO's efforts to obtain such records and encouraging her to assist in collecting such evidence as well. At this juncture, the Board finds that any additional attempts to obtain these records would be futile. See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999). The record also indicates that the Veteran has been informed that the RO was unable to obtain all of the service treatment records in a notice dated September 2009. In light of the apparent unavailability of certain service treatment records, the Board will give heightened consideration of the Veteran's claims under the facts of this case and to the benefit of the doubt rule in adjudication of her claims. Additionally, the Veteran was afforded a VA examination in January 2013 and the examiner provided an etiological opinion with respect to her claims. The Board finds that the VA examination is fully adequate as the VA examiner reviewed the appellant's claims folder, examined the appellant, considered the Veteran's self-reported history of symptomatology and medical history, and provided a medical opinion that is consistent with the rest of the evidence of record. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to her claims. There is no indication in the claims file that there are additional available relevant records that have not yet been obtained. Law and Regulation for Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 , 1131. Active military, naval, and air service includes active duty, or any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24) ; 38 C.F.R. § 3.6(a) . The term "Veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2) ; 38 C.F.R. § 3.1(d) . When entitlement to service connection is based on a period of active duty for training, the evidence must show that the appellant became disabled during the period of active duty for training as a result of a disease or injury incurred or aggravated in the line of duty. If the evidence does not show that the appellant became disabled during the period of active duty for training, she does not have the status of a Veteran for that period of service, see 38 U.S.C.A. §§ 101(2) , 101(24), 1131, and the appellant is, therefore, not entitled to the presumption of soundness on entering service, or the presumption of aggravation for any increase in disability during active duty for training. Harris v. West, 13 Vet. App. 509, 511 (2000) (per curiam). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Veteran. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Veteran. App. 518, 519 (1996). Right Ankle Disability The Veteran avers that she sustained bilateral ankle disability resulting from injuries sustained in a period of ACDUTRA. As previously mentioned, the RO already granted service connection for the left ankle strain. A November 1981 service treatment record shows that the Veteran complained that her feet and ankles were swollen following a road march. The physician's impression was that of swelling secondary to urinary tract infection and road march. The Veteran had complained of foot discomfort for the previous two weeks. An examination showed swelling and pain in both ankles. The X-ray findings revealed findings of moderate pes planus. No joint degeneration was shown involving either the foot or ankle. The impression was that of overuse syndrome, and she was profiled for one week and instructed to wear sneakers. The Veteran was also instructed to return to the clinic with her boots. Podiatry clinic records dated in November 1981noted that ankle swelling was still present, and the profile was extended for one week. The treating clinician instructed the appellant to avoid marching and running. A November 1981 treatment record noted "ankles ok-numbness present." In September 1995 and March 1996, a torn ligament of the left ankle and left ankle neuritis were noted in connection with a physical profile. A March 1996 letter submitted by a private physician advised the Veteran to refrain from running or jumping due to neuritis of the left ankle. The Veteran underwent a VA examination of her ankles in January 2013. The examiner reviewed the records, to include the available service treatment records, performed a complete examination of her ankles and feet (including X-ray studies), and covered her history, to include reports of past and present symptomatology. The Veteran reported having "more problems" with her right ankle than her left and indicated that it swelled more frequently. She currently wore bilateral ankle support. The X-ray studies indicated that the right ankle showed a small calcification between the medial border of the talus and the medial malleolus. The VA examiner noted no history of any injury to the right ankle. His final diagnosis was that of bilateral ankle strain. Although the VA examiner notes that there was no specific mention of any right ankle condition in the service treatment records, the Board notes that the examiner's ultimate etiological opinion discussed both ankles when he ultimately suggested that "[t]he Veteran's symptoms of ankle pain, plus complaints in her feet, in 1981 which have continued to the present time, would suggest that the Veteran's military activities did precipitate and cause her ankle complaints which . . . [was] more likely than not due to her pes planus." The VA examiner acknowledged that the Veteran complained of problems with both ankles in her period of ACDUTRA (pain from marching) and related her ankle disability to that injury in service. As this appears to apply to the claimed right ankle disorder, the Board finds the evidence to be in relative equipoise in showing that the current right ankle disability manifested by calcification between the medial border of the talus and the medial malleolus as likely as not is due to an injury that the Veteran sustained during a period of ACDUTRA. In resolving all reasonable doubt in favor of the Veteran, service connection is warranted. Bilateral Knee Disability The appellant also asserts that she suffers from a bilateral knee disability that is due to her initial period of ACDUTRA. The service treatment records are negative for complaints or findings referable to a knee condition during any period of ACDUTRA. There is no record of treatment for a chronic knee disorder at any point after service. The appellant was afforded a VA examination in January 2013 when the examiner reviewed the claims file and considered the appellant's medical history, to include reports of past and present symptomatology. Upon examination, to include X-ray studies, the examiner diagnosed bilateral osteoarthritis of the knees. The examiner indicated that he found no evidence of an injury that occurred either during active or inactive duty or treatment after the appellant left service. He ultimately opined that there was no nexus relationship between her Army Reserve service and that the osteoarthritis manifested by the right knee being worse than the left was more likely than not secondary to the appellant's age and weight which had increased progressively from the time that entered the military until retirement and to the present time. In this decision, the Board has considered all lay and medical evidence as it pertains to the issues on appeal. 38 U.S.C.A. §§ 5107(b) , 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must 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. See 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. 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"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The appellant in this case has not pointed to any specific injury during ACDUTRA, but claims that she developed bilateral knee pain during boot camp due to marching. The Board recognizes that the Veteran is competent to attest to what she experiences as it relates to her experience in boot camp. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has also considered whether the Veteran has been able to establish service connection by way of showing continuity of symptomatology, as arthritis is a condition explicitly recognized as a chronic disease in the meaning of 38 C.F.R. Sections 3.307 and 3.309 (2012). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the Board finds that any reports of continuity of bilateral knee symptomatology since service are not credible as such reports are contradicted by the evidence of record. Specifically, there is no medical evidence that the Veteran sought treatment for knee symptoms after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354 (1991). In addition, during her VA examination in January 2013, the Veteran actively reported that the only physician she ever saw was her primary care physician right after she finished military training. However, the examiner noted that there were no entries in her service medical records concerning any knee examinations nor was there any mention of knee problems on her physical profile. She also admitted during the VA examination that she has never had treatment for her bilateral knee pain. Therefore, the preponderance of the evidence of record demonstrates that any knee symptoms that the Veteran experienced during service ceased and did not resume until many years after her last period of INACDUTRA. Accordingly, the Veteran's lay statements do not provide credible evidence that she experienced bilateral knee symptoms during service which have continued to the present day. Thus, the Board finds that these lay assertions are of limited probative value for the purpose of establishing a continuity of symptomatology linking the current osteoarthritis of either knee to a period of ACDUTRA. The Board finds that the most probative evidence of record is the medical opinion provided in January 2013 by the VA examiner who reviewed the appellant's records, history and statements, and provided the negative nexus statement based on his professional knowledge and experience along with a supporting rationale. Thus, on this record, the Board finds that the claim of service connection for a bilateral knee disorder must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a right ankle disability is granted. Service connection for a bilateral knee disorder is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs