Citation Nr: 1334125 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-24 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a right ankle disability, claimed as unable to bend right foot at the ankle. ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran had active service from April 1980 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied the Veteran's claim for service connection. In January 2009 a separate administrative decision was issued by the RO which found that the period of service from April 1989 to December 1991 was not honorable for VA purposes and that the Veteran was not eligible for any VA benefits for this last period of service. The administrative decision was not appealed and it is final. The issue of character of discharge is not before the Board. In a November 2012 decision, the Board remanded the issue of entitlement to service connection for a right ankle condition, claimed as unable to bend right foot at the ankle, for additional development. FINDING OF FACT There are no current residuals of right great toe fracture during service; a chronic right ankle/foot disability was not first manifest during service, or within a year after discharge from service, and the medical evidence of record does not show that a right ankle/foot disability, if any, is related to any disease or injury incurred in or aggravated by service. CONCLUSION OF LAW The criteria for service connection for a right ankle disability, claimed as unable to bend right foot at the ankle, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The Veteran was provided notice in a letter dated in May 2008. The letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). The letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained the Veteran's service treatment records. The Veteran reported that he did not have any medical records, private or VA, related to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). A VA examination was conducted/opinion obtained in December 2012. The Veteran has not argued, and the record does not reflect, that the examination report/opinion is inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); see also Dingess/Hartman, 19 Vet. App. at 486. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where a veteran served for at least 90 days during a period of war or after January 1, 1947, 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; 38 C.F.R. §§ 3.307, 3.309. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. During service in January 1983, the Veteran complained of and was treated for right foot pain and swelling after dropping a van seat on his foot. The Veteran was found to have fractured his first digit on the right foot and was prescribed a short leg cast with boot to guard the first digit. An X-ray was taken of the foot and the examiner noted a suspicious non-displaced+ fracture about the distal phalanx of the right great toe. On the discharge examination in April 1988 the Veteran reported a history of right foot fracture in 1985. The Veteran was also treated for right foot swelling and pain during his bad period of service, in April 1991; however this injury cannot be considered for service connection purposes. A VA examination was conducted in December 2012. The examiner reviewed the Veteran's claim file in conjunction with the examination. The Veteran reported a fracture in the foot area- he was not sure exactly where- during service. The Veteran reported that after this injury was casted and healed it had continued to bother him. He denied any ankle injury. He reported his current symptoms were of an aching in the mid-foot, with a feeling of brief electrical shock and giving way in the right leg at times. The examiner described an apparent remote right 2nd toe fracture that was not found on a January 1983 X-ray. This was a mild injury and currently asymptomatic. The examiner noted that the January 1983 X-ray had shown suspicion of fracture of the distal phalangeal joint, right hallux. This was described as a mild injury. "Current X-rays show no indication nor residual of this- well healed. Veteran is asymptomatic." The examiner also noted "very early [degenerative joint disease] to [metatarsophalangeal], right hallux- most likely is age related; less likely due to trauma of unknown timeframe- again not found on 1/83 X-ray nor a note of X-ray findings 4/1991, and is asymptomatic." The examiner described mild subjective tenderness to palpation of the mid foot dorsally, with no deformity, erythema, or swelling. "The remainder of the right foot/toes are completely nontender, including arch. Negative plantar stretch test. [Range of motion] all toes is normal." Examination of the right ankle was normal and X-rays of the right ankle were negative. The examiner provided the following opinion: 1. The Veteran's history probable non-displaced fracture distal phalangeal joint of 1st digit (great toe) of right foot in January 1983 is at least as likely as not (greater than 50/50 percent probability) related to injury during active service, to include the right great toe fracture in January 1983. This is asymptomatic and resolved. 2. The Veteran's status post fracture 2nd toe, right foot, asymptomatic, of right foot is not related to (less than 50/50 percent probability) any disease or injury during active service, from April 1980 to April 1988, to include the right toe fracture in January 1983. 3. The Veteran's right foot and/or ankle disability, if any, is not (less than 50/50 percent probability) related to any disease or injury during active service from April 1980 to April 1988, to include the right toe fracture in January 1983. RATIONALE: 1. There is history of suspicion from non-displaced fracture DP joint of 1st digit (great toe) of right foot in January 1983. Current radiographs show no residual nor traumatic degenerative changes to DP joint. Well healed, resolved, asymptomatic. Current radiographs also show early degenerative changes with mild joint space narrowing and bony hypertrophy at the first metatarsophalangeal joint, most likely age related. 1983 and 1991 X-rays of right foot are both negative for fracture or degenerative joint disease of this area of right hallux. Thus no evidence of relationship to service years. The remainder of the foot is completely normal. 2. With review of records, it is unclear when this fracture occurred. Veteran was completely unaware of it. This is not evidenced on X-rays of right foot 01/1983 or 04/1991. Thus did not occur in service. 3. Other than remote toe injury above, for which the Veteran is asymptomatic and apparently unaware of, the remainder of the right foot is completely normal. The right ankle is normal. During a good period of service the Veteran was treated for a right foot injury. The Veteran contends that he has continued to have right foot pain, and that his right foot gives out. The Veteran is competent to report symptomatology, such as foot pain, that he experiences. However he is not competent to diagnose the conditions or to state whether any particular currently diagnosed foot pathology is related to an inservice cause. Jandreau, supra. The VA examiner in December 2012 determined that the Veteran's only inservice right foot injury resulted in a fracture of the right great toe which had completely healed and was asymptomatic. She also determined that the Veteran's current right foot pathology, which consisted of early degenerative changes with mild joint space narrowing and bony hypertrophy at the first metatarsophalangeal joint, was most likely age related and unrelated to any inservice injury; she specifically noted that no such changes were shown on X-rays in 1983 or 1991. As arthritis was not demonstrated during the first postservice year, service connection for arthritis on a presumptive basis is not warranted. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The only competent medical opinion of record is that the Veteran has no current residuals of an in-service right foot injury; has no current right ankle disability; and that the currently demonstrated degenerative changes of the right foot are not related to an inservice cause. The preponderance of the evidence is against the Veteran's claim for service connection for a right ankle condition, claimed as unable to bend right foot at the ankle. There is no doubt to be resolved; and service connection is not warranted. ORDER Service connection for a right ankle condition, claimed as unable to bend right foot at the ankle, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs