Citation Nr: 1329321 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 08-21 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a recurrent left ankle sprain, to include as secondary to a service-connected right ankle disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from October 2002 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In February 2011, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) to provide additional notice and afford the Veteran a VA examination. The AMC provided the requested notice and afforded him an examination in April 2011. In January 2013, finding the examination report to be inadequate, the Board requested an addendum medical opinion. The AMC obtained the addendum later that month. A review of the addendum reflects that there has been substantial compliance with the remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). FINDINGS OF FACT 1. A recurrent left ankle sprain did not have its onset during active service and it is not otherwise related to such service. 2. A recurrent left ankle sprain is not proximately due to or the result of a service-connected right knee disability. CONCLUSION OF LAW The criteria for service connection for a recurrent left ankle sprain, to include as secondary to a service-connected right ankle disability, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The Veteran was notified via letter dated in June 2009 of the criteria for establishing direct service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He was also notified of how VA determines disability ratings and effective dates if service connection is awarded. That letter predated the initial adjudication by the RO in August 2007. The Veteran was then notified of the criteria for establishing secondary service connection in a March 2011 letter, and the claim was thereafter readjudicated in April 2012. Thus, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, and post-service reports of VA treatment and examination. The Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to any additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. VA provided the Veteran with an examination in July 2007 to determine the nature and etiology of his disability. 38 C.F.R. § 3.159(c)(4) (West 2002 & Supp. 2012). When VA provides an examination or obtains an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). As the examiner did not provide an opinion in the case, the Board requested another examination, which was completed in April 2011. Finding that examination report inadequate, the Board requested an addendum, which was obtained in January 2013. The Board finds the April 2011 examination report, along with the addendum, to be thorough and adequate on which to base a decision on the claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information needed to decide the claim. A brief but relevant and important opinion with rationale was provided. The Board finds the opinion to be adequate, as it was based on a full reading of the records in the claims file and the Veteran's own statements. Given the above, no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also 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) (2012). In this case, the disorder at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2012). Therefore, 38 C.F.R. § 3.303(b) (2012) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2012). Service connection is permitted not only for a disability caused by a service- connected disability, but also for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). In this case, on his May 2007 claim, the Veteran indicated that he has an ankle condition that had its onset in or is otherwise related to service. The Veteran's service treatment records reflect that he injured his right ankle in August 2004 while playing basketball and was diagnosed with a right ankle sprain. During a September 2004 follow-up visit, he complained of right ankle swelling and popping and was diagnosed with a chronic right ankle sprain. However, there is no mention of any treatment for or diagnosis of a left ankle condition. During a July 2007 VA examination, the Veteran complained of recurrent left ankle pain during the prior six months, and related that pain to his right ankle condition. He denied any specific injuries or sprain to the left ankle, but indicated that he experiences pain in the left ankle several times a month, especially after prolonged standing and participating in sports activities. He underwent an x-ray of his left ankle, the results of which showed no evidence of a fracture or other significant joint abnormality. After interviewing the Veteran and conducting a thorough physical examination of both ankles, the examiner diagnosed him with a left and right ankle sprain. However, the examiner did not provide an etiological opinion with respect to whether the Veteran's left ankle sprain was related to service and/or secondary to his right ankle sprain. In the August 2007 rating decision on appeal, the RO granted service connection for a recurrent right ankle sprain with degenerative changes but denied service connection for a recurrent left ankle sprain. In his substantive appeal received in July 2008, the Veteran clarified that it was his intent to file a claim for service connection for a left ankle disability that resulted from his service-connected right ankle disability. He noted his statement made to the VA examiner that he has had pain in the left ankle for the last six months, which would have been five months after his separation from service. During an April 2011 VA examination, the Veteran complained of left ankle stiffness and soreness that began sometime in 2005. He reported never requiring treatment for his left ankle condition. He stated that symptoms are worse after standing and physical activity, and occasionally the left ankle will give out, so he wears a compression stocking for support during exercise and a lace-up brace during basketball. He also reported a history of a service- connected right ankle injury, noting that he continues to have lateral right ankle pain. X-rays of the left ankle showed adequate joint spaces and no evidence of a fracture or dislocation, or any osseous pathology. After examination and review of the claims file, the examiner stated that there is no evidence in the service treatment records that the Veteran's left ankle condition began in or was exacerbated by military service. The examiner also stated that there is no evidence the Veteran's left ankle condition is related to or aggravated by his right ankle condition. The examiner noted that the left ankle condition is likely chronic in nature with its etiology being unrelated to service or the other service- connected condition. The examiner concluded that the Veteran's left ankle strain is not caused by or a result of nor aggravated by his military service or service-connected right ankle condition. In January 2013, an addendum was obtained from the above examiner. After another review of the claims file, the examiner opined that the Veteran's left ankle condition is less likely than not related secondarily to the service- connected right ankle disability. The examiner stated that the left ankle condition is not due to an alteration in body mechanics, as if the left ankle is compensating for the right ankle. The examiner further stated that instead the left ankle is likely due to the Veteran's genetically inherited ligamentous laxity. The examiner also stated that there was no evidence to suggest that the right ankle injury predisposed the Veteran to injury of the left ankle. The examiner concluded that the Veteran's left ankle condition is less likely than not related to the right ankle injury while in service. Initially, in light of the Veteran's concession that his left ankle disability is not directly related to service, the Board finds that his recurrent left ankle sprain did not have its onset during active service and it is not otherwise related to such service. The finding is supported by the Veteran's service treatment records, which contain no reference to a left ankle disorder, and the April 2011 VA examiner's opinion, which is based in large part on those service treatment records. Furthermore, with no evidence of arthritis, the presumptive provisions related to chronic diseases do not apply. 38 C.F.R. §§ 3.307, 3.309 (2012). Turning to the Veteran's main contention that his left ankle disability is secondary to his service-connected right ankle disability, the Board finds that his recurrent left ankle sprain is not proximately due to or the result of a service- connected right knee disability. The April 2011 VA examiner opined that the Veteran's left ankle strain is not caused by, a result of, or aggravated by his service-connected right ankle disability. The examiner based the opinion on examination of the Veteran and of his documented medical history and, in the addendum, provided a sound rationale in support of the opinion, which, in part, was that the left ankle condition was not due to alteration in body mechanics, as if one ankle were compensating for the other, but instead, likely due to the Veteran's own genetically inherited ligamentous laxity. Thus, the Board finds the opinion to be of significant probative value. See Hayes v. Brown, 5 Vet. App. 60 (1993). Moreover, that is the only competent medical opinion of record and unfortunately it is against the claim. The Board notes that a lay person is competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology. As discussed above, the competent medical evidence shows that his disorder is not related to his service-connected right ankle disability. The Board also notes that a lay person is competent to give evidence about observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). Further, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To the extent that the Veteran is claiming to have experienced continuous left ankle pain since active service, he is not found to be credible. There is no evidence of left ankle problems during service. There is no evidence of a left ankle disorder after discharge until May 2007 when he filed his claim. During the August 2007 VA examination, he dated the onset of symptoms to after separation from service. The Board notes that he dated the onset of symptoms as occurring during service at the April 2011 VA examination. However, the Veteran clarified on his substantive appeal that his left ankle disability did not have its onset until five months after service. The Board finds his statements in the August 2007 VA examination report and July 2008 substantive appeal to be of greater probative value in determining the date of onset of symptoms. See Hayes v. Brown, 5 Vet. App. 60 (1993). Given the above, the Board finds that the statements alleging or implying continuity of symptoms are not credible in this case. Therefore, continuity of symptomatology is not established by either the competent evidence or the Veteran's own statements. Moreover, the competent medical evidence of record does not relate his left ankle disability to active service. In conclusion, service connection for a recurrent left ankle sprain, to include as secondary to a service-connected right ankle disability, is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a recurrent left ankle sprain, to include as secondary to a service-connected right ankle disability, is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs