Citation Nr: 1335289 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 12-29 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected plantar wart of the right foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1942 to February 1946. This matter initially came before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In that decision, the RO denied entitlement to service connection for a right ankle disability. The RO in St. Petersburg, Florida currently has jurisdiction over the Veteran's claim. In May 2012 and April 2013, the Veteran testified at hearings before a Decision Review Officer and the undersigned at the RO, respectively. Transcripts of these hearings have been associated with the record. In April 2013, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). In May 2013, the Board remanded this matter for further development. The Veteran had also perfected an appeal with regard to the issue of entitlement to service connection for right foot hammertoes, and the Board had remanded this issue in May 2013 for further development. In August 2013, the Appeals Management Center granted service connection for this disability, and thereby resolved the appeal as to that issue. This appeal was processed using the Veteran's Benefits Management System and the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. FINDING OF FACT The Veteran's current right ankle disability is the result of his service-connected plantar wart of the right foot. CONCLUSION OF LAW The criteria for service connection for a right ankle disability are met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the Board is granting the claim of service connection for a right ankle disability, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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 Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. VA has amended 38 C.F.R. § 3.310 to reflect that it will not concede aggravation unless certain additional conditions are met. 38 C.F.R. § 3.310(b). As service connection for a right ankle disability is not being granted on the basis of aggravation by a service-connected disability, it is not necessary to determine which version of 38 C.F.R. § 3.310 is applicable in this case. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) (2013) (including arthritis) is through a demonstration of continuity of symptomatology. 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 Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). 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). 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 1331, 1337 (Fed. Cir. 2006) ("[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 credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2013). Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b) (West 2002); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, a June 2013 VA examination report includes a diagnosis of degenerative osteoarthritis of the right ankle. Thus, a current right ankle disability has been demonstrated. There are conflicting medical opinions as to whether the Veteran's current right ankle disability was caused by his service-connected plantar wart of the right foot. The Board, therefore, must weigh the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 29-40 (1994). In September 2010, a VA nurse practitioner reviewed the evidence of record and appears to have initially opined that it was likely ("as likely as not") that the Veteran's right ankle disability was due to his plantar wart of the right foot. She then explained, however, that there was no medical evidence of a right ankle disability in the records that were reviewed. As a result, the Veteran's claim was not valid. Also, there was no scientific evidence to support a conclusion that a plantar wart could affect an ankle joint. In an April 2012 letter, Jeffrey P. Rosen, M.D. opined that the Veteran's right ankle disability was likely ("more likely [than] not") the result of improper walking caused by or aggravated by his service-connected foot problem. He reasoned that the Veteran suffered from severe ankle arthritis and dysfunction and that he had a service-connected foot disability which had reportedly resulted in a chronic abnormal gait for approximately the previous 40 years. An August 2012 VA examination report includes an opinion that the Veteran's right ankle disability was not likely ("less likely as not"/"less than 50/50 probability") caused by, a result of, or proximately due to treatment received for his service-connected plantar wart of the right foot which resulted in an abnormal gait. The nurse practitioner who provided the opinion explained that the Veteran was diagnosed with "severe arthritis of the [right] ankle-aging process." There was no documented medical evidence of a chronic abnormal gait as a result of treatment for his plantar wart. The Veteran had been employed and able to work as a machinist from 1946 to 1992, at which time he retired. Overall, there was "no medical evidence to support the claim." An August 2013 VA examination report includes an opinion pertaining to whether the Veteran's current right ankle disability was directly related to service. The rationale that accompanied that opinion stated that the ankle disability was likely ("at least as likely as not") due to his service-connected plantar wart of the right foot, to include all treatment reportedly received for the disability (e.g. excision and radiation therapy). There was no further explanation or reasoning provided for this statement. The physician who conducted the August 2013 VA examination subsequently re-reviewed the evidence of record and opined that the Veteran's right ankle disability was not caused by or a result of (in whole or in part) his service-connected right plantar wart, to include all treatment received for that disability (e.g. its excision and radiation). The physician explained that a review of medical literature did not reveal any mechanism by which a plantar wart, treatment for such a disability (including excision and radiation therapy), or an altered gait pattern may cause or aggravate degenerative osteoarthritis of the ankle. The September 2010 opinion is of minimal probative value because it is contradictory and partly based on a finding that there was no medical evidence of a right ankle disability in the records that were reviewed. As explained above, however, the Veteran has been diagnosed as having degenerative osteoarthritis of the right ankle. The August 2012 opinion is also of limited probative value because it is, at least in part, based on an inaccurate history. The opinion provider reasoned that there was no documented medical evidence of a chronic abnormal gait as a result of treatment for the Veteran's plantar wart. However, the report of an August 2010 VA examination which was conducted to assess the severity of the Veteran's service-connected plantar wart of the right foot indicates that there was objective evidence of abnormal weight bearing in that the Veteran had an unusual shoe wear pattern. Also, he exhibited an antalgic gait with "right foot drop with brace." Also, VA treatment records contain numerous reports of pain affecting the Veteran's walking and reflect that he has used assistive devices for ambulation. Hence, the August 2012 opinion is, at least in part, based on an inaccurate history and is of limited probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed); Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Dr. Rosen's April 2012 opinion and the August 2013 opinion that the Veteran's right ankle disability was not caused by or a result of his service-connected right plantar wart, however, were based upon examinations of the Veteran and a review of his reported history and are accompanied by specific rationales that are not inconsistent with the evidence of record. Thus, these opinions are adequate and entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. Although the initial August 2013 opinion that the Veteran's right ankle disability was likely due to his service-connected plantar wart of the right foot is of limited probative value because it is not accompanied by any explanation or reasoning, it at least supports the conclusion that his right ankle disability was caused by his service-connected plantar wart. At the very least, the evidence is in relative equipoise as to whether the Veteran's current right ankle disability was caused by his service-connected plantar wart of the right foot. Resolving all reasonable doubt in his favor, the Board concludes that the criteria for service connection for the currently diagnosed right ankle disability have been met. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. § 3.310. ORDER Entitlement to service connection for a right ankle disability is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs