Citation Nr: 1329191 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-24 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a right ankle disability. 3. Entitlement to an initial increased rating for bilateral pes planus, evaluated as noncompensably disabling prior to October 27, 2011, and 30 percent disabling as of November 27, 2011. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to May 1975 and from June 1980 to July 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran subsequently testified before the undersigned at an April 2012 Travel Board hearing. The hearing transcript is of record. The issue of entitlement to an effective date earlier than November 27, 2011, for the grant of a 30 percent increased rating for the service-connected bilateral pes planus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See letter from Veteran received June 2012. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to an initial increased rating for bilateral pes planus 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. A right ankle disability was not present in service or for years thereafter, and is not etiologically related to service. 2. A left ankle disability was not present in service or for years thereafter, and is not etiologically related to service. CONCLUSIONS OF LAW 1. A right ankle disability was not incurred or aggravated during active duty, and its incurrence or aggravation during active duty may not be presumed. 38 U.S.C.A. §§ 1101, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A left ankle disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and 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. Pelegrini v. Principi (Pelegrini), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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). In a May 2007 letter, issued prior to the adjudication of the claims, the RO notified the Veteran of the evidence needed to substantiate his claims for service connection. The letter satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. The Veteran has substantiated his status as a Veteran. He was notified of all elements of Dingess, including the disability-rating and effective-date elements of the claims, in the May 2007 letter. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim, as was done here. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103S; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.1599(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, and VA and private treatment records. Additionally, the Veteran was provided an appropriate VA examination of his ankles in October 2011. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria 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 (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As arthritis is recognized as chronic under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is for application. Id. In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also considered credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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, as opposed to merely isolated findings or a diagnosis including the word "chronic." 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). 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). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis No right or left ankle disability was diagnosed until many years after service, and there is no competent evidence to establish that any current right or left ankle disability is due to any event or incident of the Veteran's period of active duty. Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to the right ankle. Service treatment records show that the Veteran sprained his left ankle on two occasions, November 1987 and October 1988, during active duty. He was treated conservatively, with a gelocast (ace bandage) and an arch support. X-rays of the left ankle in September 1988 showed a small, round density near the medial malleolus, which the technician noted may have been a soft tissue calcification or a small chip fracture. However, x-rays of the left ankle in January 1989 were normal, and the feet and lower extremities were evaluated as being normal on a January 1989 periodic examination. A November 1990 note indicates that the Veteran complained of left ankle pain since May. He was noted to have some edema, echchymosis, and increased pain on palpation of the left ankle. He was able to stand on his toes and heels and weight bearing was positive. The assessment at that time was recurrent left ankle strain, chronic, rule out arthritis, and he was referred to orthopedics. The record reflects that the Veteran opted to not undergo a separation examination in July 1991. Therefore, there is no indication as to whether he was diagnosed with a left or right ankle disability at the time of his discharge. The post-service medical evidence shows that the Veteran received treatment for his feet, several years after his discharge. Specifically, during private treatment in August 2003, the Veteran complained of left foot swelling and reported working on his feet all day and having a history of plantar fasciitis. He was diagnosed with plantar fasciitis at that time. During VA treatment in September 2006, he complained of swelling to the bottoms of his feet and a tingling sensation. He reported that the swelling had been present for "years," and that it had progressively gotten worse. He was diagnosed at that time with bilateral pes planus. However, the first evidence of any post-service treatment for the Veteran's ankles is shown in April 2011 private treatment records from G.Z., MD, who noted that there was x-ray evidence of osteoarthritis of the right ankle. The Board notes that this diagnosis was not confirmed on x-ray during VA examination in October 2011. There is no indication in these records of any treatment or diagnosis related to the left ankle, and the doctor did not provide an opinion as to the etiology of the diagnosed right ankle osteoarthritis. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of a right or left ankle disability, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence, including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id. cf. Dambach v. Gober, 223 F.3d 1376, 1380- 81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). There is no other medical evidence of record, which indicates that the Veteran's left or right ankle disability is related to his active military service. In this regard, the Veteran was afforded a VA examination in response to his claims in March 2008. The examiner noted that the Veteran injured his left ankle in service, and that there was no evidence of any right ankle injury in service. The Veteran complained of a tingling-type intermittent pain in both feet, primarily in the region of the arch, bilaterally, with some radiation up the lateral aspect of the leg. He also reported that he wore inserts in both shoes. Physical examination of the ankles was essentially normal, and x-rays of both ankles revealed no significant bone, joint or soft tissue abnormalities. The examiner diagnosed bilateral pes planus, more severe on the left. However, with regard to the ankles, he diagnosed normal ankles bilaterally, and opined that the ankle injury which the Veteran sustained while in service was an acute injury which resolved and did not contribute or aggravate the Veteran's present bilateral foot problem. He concluded further that the Veteran had no disability as a result of his ankle injury and there was no disability of the uninjured ankle. The Veteran was afforded another VA examination in October 2011. The examiner noted the Veteran's reports of flare-ups of pain in the ankles. However, besides evidence of pain on palpation, physical examination of the ankles was normal. X-rays revealed bilateral small calcaneal spurs, but were otherwise unremarkable. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In rendering his opinion, he noted that the Veteran was treated in November 1987 and October 1988 for a left ankle sprain, and the condition was not shown to be chronic in service. Furthermore, the Veteran had normal x-rays of the ankles in March 2008 and on examination at that time in October 2011, and there was no evidence of a diagnosis or treatment for an ankle condition in the VA treatment records. Finally, he noted that there was no consistent evidence in the claims file of ankle pain from 1988 to the present. There is no contrary medical opinion of record, and the opinion was based on an accurate history and supported by an implicit rationale; it is thus adequate. The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that diagnosis of right ankle arthritis was made several years after the Veteran's discharge from service. The Veteran is competent to report the symptoms of his disabilities; however, it would require medical expertise to say that the current right and left ankle arthritis, identified long after service, is the result of a disease or injury in service or that service connection is warranted based on a continuity of symptoms since service. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his bilateral ankle arthritis. 38 C.F.R. § 3.159(a)(1),(2) (2012); Jandreau, supra. The Board further notes that even with respect to symptoms, the record does not reflect that the Veteran has been complaining of pain in his ankles since service. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claims for service connection for left and right ankle disabilities. Such disorders did not manifest during service or for many years thereafter and have not been shown to be causally or etiologically related to an event, disease, or injury in service. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not applicable. ORDER Service connection for a left ankle disability is denied. Service connection for a right ankle disability is denied. REMAND The most recent VA examination in connection with the Veteran's service-connected bilateral pes planus was conducted in October 2011. The Veteran testified during his April 2012 Travel Board Hearing that his condition has increased in severity since that time, in that the pain was worse and that the inserts he was prescribed were not effective. See April 2012 Travel Board Hearing transcript. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Given the Veteran's claims of increased symptomatology, a new VA examination is warranted to determine the current severity of his bilateral pes planus disability. The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of his failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2012). The Board also notes that the Veteran has reported that he received treatment for his bilateral flat feet at the Walter Reed Medical Center in 1987 or 1988. He specifically reported that he had arch supports made at that time. See April 2008 notice of disagreement, March 2008 statement, and June 2009 VA Form 9. There are no records of treatment from the Walter Reed Army Medical Center currently associated with the claims file. As it appears that there may be available VA medical records that are not presently associated with the claims folder, a remand is required. See 38 C.F.R. § 3.159(c)(2). The provisions of 38 C.F.R. § 3.159(c) provide that VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. If VA is unable to obtain such records, VA must provide the claimant with oral or written notice of that fact. The notice must contain various information, including an explanation of the efforts VA made to obtain the records and a description of any further action VA will take regarding the claim. 38 C.F.R. § 3.159(e). The Board further notes that the claims file does not contain any VA treatment records dated after March 2007, and any private treatment records dated after April 2011. As this case is already being remanded for further development, the RO should take this opportunity to obtain any additional treatment records that may be relevant to the claim. Accordingly, the case is REMANDED for the following action: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his bilateral pes planus. In particular, attempt to obtain records of treatment from the Walter Reed Army Medical Center from 1980 to 1991. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. All development efforts should be in writing and associated with the claims folder. 2. The RO should also obtain any outstanding VA medical records dated from March 2007 to the present. 3. After completing the above action, Veteran should be afforded a VA examination to evaluate the current severity of his bilateral pes planus. The claims folder must be made available to the examiner for review of the case, and the examination report should include discussion of the Veteran's documented medical history and assertions. A notation to the effect that this record review took place should be included in the report. All indicated studies and tests, including X-rays, should be conducted, and the examiner should review the results of any testing prior to completing the report. Any disabling manifestations specifically attributable to the Veteran's service- connected bilateral pes planus must be fully outlined and differentiated from symptoms caused by any nonservice- connected foot disorders. The examiner is to comment on whether the bilateral pes planus is manifested by marked deformity (pronation, abduction, etc.); pain on manipulation and use accentuated; indication of swelling on use; characteristic callosities; marked pronation; extreme tenderness of the plantar surfaces of the feet; marked inward displacement; and severe spasm of the tendon Achilles on manipulation that is not improved with the use of orthopedic shoes or appliances. The examiner should also render an opinion, based upon best medical judgment, as to whether, and to what extent, the Veteran experiences any additional functional loss (beyond that which is demonstrated clinically) due to pain and/or any of the other symptoms of the service-connected bilateral foot disability noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express such functional loss in terms of additional degrees of limited motion. The examiner should also indicate the effect the pes planus has, if any, on the Veteran's current level of occupational impairment. Specifically, the examiner should render an opinion as to whether service-connected foot disability causes marked interference with employment, or the need for frequent periods of hospitalization. The basis for the conclusions reached should be stated in full, and any opinion(s) contrary to those already of record should be reconciled, to the extent possible. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the issue of entitlement to an increased rating for the service- connected pes planus. If any benefit sought on appeal remains denied, the AOJ should issue a supplemental statement of the case, and the case should then be returned to the Board, if otherwise in order. 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). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs