Citation Nr: 1334064 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-39 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a right ankle disorder, to include as residual to an in-service injury. 2. Entitlement to service connection for a left ankle disorder, to include as residual to an in-service injury. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran had active military service in the United States Coast Guard from January 1965 to January 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York that, in part, denied the Veteran's claims of entitlement to service connection for right and left ankle disorders. The case was certified to the Board by the RO in Denver, Colorado. In August 2010, a Travel Board hearing was held at the Denver RO before the undersigned Acting Veterans Law Judge (AVLJ) who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107. A transcript of that hearing has been associated with the claims file. Additionally, evidence has been associated with the Veteran's claims folder included with waivers of RO consideration. In November 2010, the Board remanded the Veteran's claims. The Appeals Management Center (AMC) continued the previous denial of the claims in a February 2012 supplemental statement of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. The Veteran's currently diagnosed right ankle disorder is not related to his military service. 2. The Veteran's currently diagnosed left ankle disorder is not related to his military service. CONCLUSIONS OF LAW 1. A right ankle disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. A left ankle disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for right and left ankle disorders, to include as residuals to an in-service injury. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in November 2010, the Board remanded these claims and ordered either the agency of original jurisdiction (AOJ) or AMC to provide the Veteran with a VA examination for his right and left ankle disorders and associate a copy of the report with his claims folder. The Veteran's claims were then to be readjudicated. Pursuant to the Board's remand instructions, the Veteran was afforded a VA examination in December 2010, and a copy of the report was associated with his claims folder. The Veteran's claims were readjudicated via the February 2012 SSOC. Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the disability rating and effective-date elements of the claim, by a letter mailed in May 2006, prior to the initial adjudication of his claims. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims and there is no reasonable possibility that further assistance would aid in substantiating these claims. The evidence of record includes the Veteran's statements, service treatment records, as well as VA and private treatment records. As noted above, the Veteran was afforded a hearing before the undersigned AVLJ 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) (2013) requires that the VLJ/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 AVLJ fully explained the issues on appeal during the hearing and specifically discussed the Veteran's right and left ankle symptomatology, and suggested the submission of evidence that would be beneficial to the Veteran's claims, namely evidence pertaining to a nexus between the Veteran's right and left ankle disorders and his military service. 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 rating criteria necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the criteria necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran was afforded a VA examination in December 2010. The VA examination report reflects that the examiner interviewed and examined the Veteran, reviewed his past medical history, reviewed his claims folder, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has retained the services of a representative. Moreover, he testified at a hearing before the undersigned in August 2010. Accordingly, the Board will proceed to a decision as to the issues on appeal. Service connection for right and left ankle disorders Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arthritis, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). In order to establish service connection for the claimed disorder, there must be (1) 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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In order to show a 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 distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board initially notes that the record does not reflect medical evidence showing any manifestations of arthritis of either the right or left ankle during the one-year presumptive period after the Veteran's separation from service. On the contrary, the record does not reflect any complaints or findings consistent with arthritis of the right or left ankle until May 2006 (more than 35 years after the Veteran's separation from active service). Service connection is therefore not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a). As to element (1), current disability, the medical evidence of record indicates diagnoses of right and left ankle disorders, specifically degenerative joint disease of the ankles. See, e.g., an August 2006 VA examination report. Element (1) is therefore satisfied. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Veteran's service treatment records document treatment for his right and left ankle on multiple occasions. Specifically, in December 1966, he reported an inversion injury to his left ankle. An X-ray report was negative for a fracture, and an impression of acute ligament tear was reported. The Veteran was prescribed bed rest and cold soaks and was given a short leg walker. Later that month, he received treatment for an injury to his right ankle when he came down the gangplank of his ship. An X-ray report was negative for a fracture, and a sprain of the lateral collateral ligament was noted. The Veteran was prescribed cold soaks, bed rest, crutches, and a short leg cast. In January 1967, the Veteran presented with complaints of right ankle pain, and was given an ace bandage as his walker cast was removed. A subsequent January 1967 record noted a history of weak ankles and complaint of pain. The remainder of the Veteran's service treatment records, to include his December 1968 separation examination, is absent complaints of or treatment for a right or left ankle disorder. However, as his service treatment records demonstrate treatment for his right and left ankle, Hickson element (2) is satisfied. Turning to crucial element (3), nexus, the Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran's current right and left ankle disorders are related to his military service. In this regard, the Board notes that the Veteran was afforded a VA examination in December 2010. Pertinently, the examiner considered the Veteran's in-service injuries to his ankles as well as the Veteran's current reports of ankle pain. The Veteran also stated at that time that he "did well" with both of his ankle injuries and had no pain until the late 1990s or early 2001 onward. After examination of the Veteran and consideration of his medical history, the VA examiner concluded that it is less likely than not that the Veteran's current right and left ankle disorders are related to his in-service injuries. The examiner's rationale for his conclusion was based on his finding that the Veteran was morbidly obese and stood on his feet for long hours during his professional life as a chef. The examiner further noted the period of 30 years that the Veteran reported he was symptom-free before he started having symptoms which the examiner indicated were more related to the joint stress of morbid obesity. Finally, the examiner noted the Veteran's December 1968 discharge examination which, as discussed above, was negative for complaints or diagnosis of a right or left ankle disorder. The December 2010 VA examination report is based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Additionally, the VA examiner's opinion appears to be consistent with the Veteran's medical history, which is absent any symptomatology of either a right or left ankle disorder for several years after service. Further, in rendering the opinion, the VA examiner considered the Veteran's service treatment records, to include the treatment for right and left ankle injuries, and determined that the Veteran's current right ankle left ankle disorders are not related to his military service. The Board observes that the Veteran has submitted multiple medical articles which indicate that injury to the ankle can lead to arthritis. The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses]. However, the articles submitted by the Veteran are of a general nature and do not contain any information or analysis specific to the Veteran's case. Additionally, the Court has held that medical evidence which is speculative, general, or inconclusive in nature cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Finally, as discussed in detail above, the VA examiner reviewed the Veteran's medical history, considered his complaints, and conducted an examination of the Veteran, and therafter concluded that the Veteran's current right and left ankle disorders are not related to his military service. The Board has therefore placed great probative value on the findings of the VA examiner. As such, the medical articles submitted by the Veteran are of little or no probative value, and, to the extent that there is any probative value, is greatly outweighed by the examiner's opinion. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) 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). "Lay 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 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including ankle pain), has presented no competent evidence of a nexus between either his right or left ankle disorder and his military service. The Board finds that the Veteran as a lay person is not competent to associate any of his claimed symptoms to his military service. That is, the Veteran is not competent to opine on matters such as the etiology of his current right and left ankle disorders. Such opinion requires specific medical training referable to the orthopedic system and its functionality and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a nexus between his either his right and left ankle disorder and military service to be of no probative value. See 38 C.F.R. § 3.159(a)(1), supra. Accordingly, the statements offered by the Veteran in support of his own claims are not competent evidence of a nexus. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. The Board notes that the Veteran appears to be contending that he has had residuals of right and left ankle injuries continually since service. However, the first postservice evidence of complaint of, or treatment for either of these disabilities is in May 2006 when he filed his claim for VA benefits. This was more than 35 years after the Veteran left service. The Board also notes that a private treatment record from Seton Health dated December 1999 indicates treatment for his feet. However, this record is dated more than 30 years after his discharge from service. While the Veteran is competent to report symptoms such as pain in his ankles over the years since service, the Board notes that neither a right nor a left ankle disorder was diagnosed at the time of his service discharge. The Board finds that his current statements regarding a continuity of residuals of right and left ankle injuries are not credible. His December 1968 separation examination from service as well as the December 2010 VA examination when he reported that he had no pain in his ankles until the late 1990s contradict any current assertion that his current right and left ankle disorders were manifested during service. There is no competent medical evidence that the Veteran complained of or was treated for either a right or left ankle disorder for many years after his separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. The Board accordingly places no probative value on the assertions of the Veteran that there has been a continuity of symptomatology dating to service. Therefore, continuity of symptomatology after service is not demonstrated. Accordingly, Hickson element (3) is not met, and the Veteran's claims fail on this basis. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for right and left ankle disorders. The benefits sought on appeal are accordingly denied. ORDER Entitlement to service connection for a right ankle disorder, to include as residual to an in-service injury is denied. Entitlement to service connection for a left ankle disorder, to include as residual to an in-service injury is denied. ____________________________________________ E.I. VELEZ Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs