Citation Nr: 1335029 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-16 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for a bilateral foot disorder, to include bilateral plantar fasciitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from September 1987 to July 1993, from February 2003 to October 2003, and from June 2005 to October 2006. Further, the record indicates he had additional service in the Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the current appellate claims. For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required regarding the claim of service connection for a bilateral foot disorder. Accordingly, the claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has a right ankle disorder that was incurred in or otherwise the result of his military service. CONCLUSION OF LAW The criteria for a grant of service connection for a right ankle disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Under the law, VA is required to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant adequate notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent pre-adjudication notice via a letter dated in July 2008, which is clearly prior to the January 2009 rating decision that is the subject of this appeal. This letter, in pertinent part, informed the Veteran of what was necessary to substantiate a service connection claim, what information and evidence he must submit, what information and evidence will be obtained by VA, as well as the information and evidence used by VA to determine disability rating(s) and effective date(s) should service connection be established. Consequently, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his right ankle claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any 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). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's available service treatment records are on file, as are various post-service medical records. The Board acknowledges that the Veteran's service treatment records for his September 1987 to July 1993 period of active duty appear to be incomplete, and that the RO made a formal finding to this effect in December 2008. In such situations VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (Wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). The Board also notes that the Veteran has had the opportunity to present evidence and argument in support of his claims, and indicated as part of his April 2010 Substantive Appeal that no hearing was desired in conjunction with this appeal. The Board acknowledges that a private medical facility, St. John's Clinic, responded that any records they had of the Veteran had been destroyed. Nothing indicates the Veteran has identified the existence of any other relevant evidence that has not been obtained or requested. For example, he has not identified any outstanding evidence which indicates he has a current right ankle disorder as a result of his military service. The Board further notes that the Veteran was accorded a VA medical examination in March 2010 which included an opinion that addressed the nature and etiology of the claimed right ankle disorder. As this opinion was based upon both a medical evaluation of the Veteran, and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds it is supported by an adequate foundation. No competent medical evidence is of record which specifically refutes the findings of the March 2010 VA examination, and the Veteran has not otherwise identified any prejudice therein. Accordingly, the Board finds that this examination is adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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). Legal Criteria and Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be established for certain chronic diseases that are present to a compensable degree within the first post-service year. See 38 C.F.R. §§ 3.307, 3.309(a). Further, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves includes the National Guard. 38 U.S.C.A. § 101(26), (27). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In this case, the Veteran essentially contends that he developed a chronic right ankle disorder as a result of an in-service injury. No other basis for establishing service connection for a right ankle disorder is otherwise demonstrated by the evidence of record, to include the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 or as secondary to a service-connected disability pursuant to 38 C.F.R. § 3.310. The Board acknowledges that the Veteran's service treatment records reflect he sustained a soft tissue injury of the right ankle in January 2006. In addition, the Veteran reports current right ankle pain, which he is competent, as a lay person, to describe. However, the issue of whether such complaints reflect a chronic disability, and whether such disability is etiologically linked to an in-service injury, requires competent medical evidence to resolve. This finding is consistent the fact the Court has previously held that pain, alone, without a diagnosed or identifiable underlying condition, is not a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part, appeal dismissed in part sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (Dismissing challenge to the issue whether pain, alone, can be considered a disability). Moreover, the record reflects that the Veteran's complaints of feet pain have generally been attributed to bilateral plantar fasciitis. The fact that there is evidence of a foot disability apart from a specific right ankle disorder further supports the need for competent medical evidence to resolve this case. For these reasons, the Board finds that competent medical evidence is required to determine the nature and etiology of the Veteran's claimed right ankle disorder, to include whether it is related to his military service. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Initially, the Board observes that it is not clear the Veteran has a chronic right ankle disorder. His available service treatment records do not reflect any entries regarding right ankle impairment subsequent to the January 2006 treatment for a soft tissue injury. The Board also notes that an October 2007 VA general medical examination found the Veteran to have no impairment of the feet which would include the ankle. The March 2010 VA examination reflects the Veteran was found to have a small spur in the plantar aspect of the calcaneous, but there was no evidence of fracture or dislocation. Further, the examiner stated the Veteran had a normal right ankle examination despite subjective complaints. As already noted, the Court has previously held in Sanchez-Benitez, supra, that pain, alone, without a diagnosed or identifiable underlying condition, is not a disability for which service connection may be granted. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. The Board further finds that even if it were to conclude the Veteran does have a current right ankle disorder for purposes of this case, his service connection claim for such would still be denied. See Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board has the fundamental authority to decide a claim in the alternative.). In this case, no competent medical opinion is of record which supports the Veteran's contentions. Rather, the March 2010 VA examination contains an opinion against such a finding. Specifically, the March 2010 VA examiner stated that the in-service injury described sounded like a minor first degree sprain, and that these generally heal with no residual problems. Therefore, it was less likely as not that the flare-ups of pain that the Veteran had were related to that one isolated minor injury. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the March 2010 VA examiner is presumed to be qualified to render a competent medical opinion. The examiner is shown to be familiar with the Veteran's medical history based upon review of his VA claims folder. The examiner's opinion is not expressed in speculative or equivocal language. Further, the examiner supported his opinion with stated rationale that cited to the nature of the in-service injury and current examination findings. As such, the Board finds that this opinion is persuasive and entitled to significant probative value regarding the resolution of this case. The Board also reiterates that no competent medical opinion is of record which refutes the findings of this VA examination. For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has a right ankle disorder that was incurred in or otherwise the result of his military service. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to this claim must be denied. ORDER Service connection for a right ankle disorder is denied. REMAND The Veteran essentially contends he had no problems with his feet prior to active service, and that he developed recurrent feet pain during such service. His spouse provided a supporting lay statement regarding these contentions in September 2008. Such complaints are the type of visible symptoms subject to lay observation. However, the Board finds that competent medical evidence is required to determine whether such complaints are due to a chronic disability, and, if so, the etiology thereof. The Veteran's available service treatment records reflect complaints of foot pain during his 1987 - 1993 period of active duty, with the April 1993 ETS examination noting the presence of pes planus. Subsequently dated records cast doubt on the accuracy of this finding, however, as an August 2004 examination revealed the feet to have a normal arch. Nevertheless, records dated after 1993 show that the Veteran acquired plantar fasciitis, and was placed on a permanent profile for that disability in 2000. Significantly, during this 1993 to 2000 period, the Veteran was not in an active duty status, and there is no indication of any injury occurring on a period of active duty training or inactive duty training to which this condition could be linked for purposes of establishing service connection. Likewise, records from the Veteran's periods of active duty after 2000, do not reflect any complaints related to the feet, as to suggest the plantar fasciitis was aggravated during those periods of service. All this having been said, there is still evidence of foot complaints during a period of active duty (1993), together with the presence of a current disability, (plantar fasciitis). These facts trigger the need to have the Veteran examined for VA purposes to ascertain whether any current foot disability is linked to active service. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his bilateral foot problems since April 2008. After securing any necessary release, the AMC/RO should obtain those records not on file. 2. The AMC/RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his, in-service and post-service foot symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the current nature and etiology of his bilateral foot disorder, to include plantar fasciitis. The claims folder should be made available to the examiner for review before the examination. For any bilateral foot disorder found to be present, the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that it was incurred in or otherwise the result of his active service to include the foot complaints and findings of pes planus in April 1993. A complete rationale for any opinion expressed should be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 4. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the March 2010 SOC, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter 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 E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs