Citation Nr: 1335575 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-30 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from October 1982 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. This case was previously before the Board in November 2012 and was remanded for additional development. For the reasons discussed below, the Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The most probative competent medical evidence of record does not demonstrate that the Veteran's current left ankle disability is related to service. CONCLUSION OF LAW The criteria for service connection for a left ankle disability have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA correspondence dated in April 2009 advised the Veteran of the necessary elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Specifically, the Veteran was informed of what evidence was required to substantiate the claim for service connection, of his and VA's respective duties for obtaining evidence, and of the criteria necessary for assignment of a disability rating. The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, as well as his post service medical records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). Pursuant to the Board's November 2012 remand, the Veteran was provided a VA examination in December 2012 to determine the etiology of the Veteran's left ankle disability. The VA examiner conducted a review of the Veteran's complete claims file and an in-person physical examination of the Veteran, and provided a nexus opinion with respect to the relationship between the Veteran's current left ankle disability and his military service, to include a rationale for the stated conclusion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the foregoing, the Board finds the RO substantially complied with the remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, 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); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); also see Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013) (holding that the provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a)). Service connection for certain chronic diseases, such as arthritis, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. 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). A veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a) ("Each disabling condition shown by a veteran's service records, or for which he seeks a service connection[,] must be considered on the basis of ... all pertinent medical and lay evidence."); see38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran asserts that he has a left ankle disability related to service. Specifically, he contends he sprained his ankle while jogging during military training in 1983 and has a continuing current left ankle disability. Service treatment records reflect that in January 1983 the Veteran reported twisting his left ankle while running through an obstacle course. He stated that the following morning he was unable to put on his boot due to swelling, which had since dissipated. Associated medical notes remark as to the Veteran's foot tenderness but do not address his ankle. At a September 1983 VA medical examination for disability evaluation shortly after the Veteran's July separation from service, swelling was noted over the medial lateral malleolus of the left ankle suggestive of generalized edema of the ankle, although the bony structure of the ankle was found normal on X-ray. At the time, the Veteran had filed claims for bilateral Achilles tendonitis and bilateral pes planus. There was no ankle disability claim filed at that time. Private treatment records after service reflect that the Veteran has sought treatment for left ankle pain since March 2004. At that time he reported difficulty flexing his ankle due to an old fracture or injury that occurred in service. He reported pain and swelling after being on his feet for any length of time. X-rays and magnetic resonance imaging (MRI) showed degenerative changes. Private treatment records dated in October 2006 reflect that the Veteran was seen for foot examination. He gave a history of multiple left ankle sprains in the military and reported that he had problems ever since, had limited motion in the ankle, and used over the counter anti-inflammatory medications daily because of the ankle. X-rays showed arthritic changes and multiple bone fragments with an impression that the findings were chronic. Soft tissue swelling was also noted. In a consultation with another physician in January 2007, the Veteran again reported his left ankle was first injured when he was in the Army. The doctor found diffuse pain along the ankle margin anteriorly, centrally, and medially and laterally along the joint line with a significantly thickened ankle capsular area. In a follow-up in July 2008, the physician noted generalized swelling with pain on the anterior aspect of the ankle and an X-ray showing degenerative arthritis. In February 2009, the Veteran saw a podiatrist who diagnosed him with equinus. The Veteran recounted that he had suffered a severe ankle sprain after stepping in a hole while marching in the military and that his ankle problems had continued for the past 30 years. X-rays showed severe arthritic processes. The podiatrist performed a left ankle arthroscopy with extensive debridement and tendo Achilles lengthening. A preoperative physical examination report stated that the Veteran had a history of equinus Charcot joint changes in the left foot and osteoarthritis in both feet. The preoperative diagnoses were left ankle pain/synovitis and left ankle equinus. The Veteran was provided a VA examination in December 2012. The VA examiner indicated that the claims file was reviewed. The Veteran reported that he injured his left ankle after basic training while at Fort Campbell. He described that he was jogging and stepped into a pothole and inverted his left ankle. He had immediate pain to the ankle and was carried to the Jeep and taken to the emergency department. X-rays were done and he was diagnosed with a bad sprain. He had a lot of swelling to the ankle. He stated that he was put on profile for two weeks, ice, ibuprofen, and elevation; after two weeks the pain continued and he was given another two weeks of profile; after that his ankle was back to normal; he was again put on profile for his ankle 3 to 4 months later at Ft. Riley, Kansas. He further stated that he was then offered an honorable discharge from service. He related that after service, he continued to have pain to the ankle, and that he was seen by an orthopedic doctor in 2009 and underwent an arthroscopy and cleaned out his ankle joint which helped a lot with his range of motion and decreased the pain. The diagnosis was degenerative arthritis of the left ankle. The examiner opined that "[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." In support of this opinion, the examiner provided the following rationale: After review of the Veteran's c-file, civilian medical records, lay statements, Veteran's history[,] it is my opinion that the Veteran's left ankle disability was less likely than not incurred in or caused by his left ankle sprain/twisting i[n] January 1982. With review of his medical records the indications for the surgical procedure done February 2009 was for Charcot joint changes which is secondary to his diabetes and not related to the ankle sprain he suffered in 1983. Veteran has a history of poorly control[led] diabetes. The examiner stated that the Veteran exhibited decreased range of motion to his left ankle, caused by a history of Charcot foot and Achilles tendon lengthening which was secondary to his diabetes. The examiner added that the Veteran had diabetes and was obese, which were all risk factors for degeneration of the ankle. Based on a thorough review of the evidence of record, the Board finds that a preponderance of the evidence is against a grant of service connection for a left ankle disability. The medical evidence of record shows that the Veteran is currently diagnosed with degenerative arthritis of the left ankle. See Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). However, despite the documentation of left ankle treatment in service in January 1983, the evidence does not support a finding that there is a nexus between the Veteran's current left ankle disability and the twisting of the left ankle, or the left ankle sprain, in service. In this regard, there has been no clinical finding that the Veteran's currently diagnosed degenerative arthritis of the left ankle represents residuals from the twisting incident in service or subsequent manifestations of the in-service left ankle condition, in light of the December 2012 VA orthopedic examiner's findings and opinion. To that effect, the December 2012 VA examiner opined that the Veteran's current left ankle disability was not related to his military service. In support of this opinion, the examiner stated that the surgical procedure done in February 2009 was for Charcot joint changes, which was secondary to the Veteran's poorly controlled diabetes and not related to the ankle sprain he suffered in 1983. The examiner further stated that the Veteran's diabetes and obesity were all risk factors for degeneration of the ankle. The Board finds that the medical opinion provided by the December 2012 examiner is based on a thorough review of the record and the history reported by the Veteran, and is supported by a convincing rationale, and therefore the Board attaches significant probative value to the opinion as to whether the Veteran currently has any residuals of the left ankle condition in service. The Board therefore concludes that the evidence of record is not supportive of a finding that the Veteran has any current left ankle disability caused by his service, specifically the in-service left ankle condition in 1983. The Veteran has presented his own lay statements in support of his contention that he sustained the left ankle injury during service and continued to experience constant pain in that ankle. His statements are competent evidence as to the continuity of symptoms he experienced during and after service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Nevertheless, to the extent that the Veteran asserts that he currently has residuals from the twisting of the left ankle in service, the Board finds that as a layman, his statements are not competent evidence on the etiology of this disorder. In certain unique instances lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson, 581 F.3d at 1316. However, in this case, the Board finds that whether the Veteran's in-service incident led to his current left ankle pathology, degenerative arthritis of the left ankle, is not readily identifiable as it may have been caused by other factors. The etiology issue therefore does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide competent etiological opinion in this matter. Moreover, substantial weight is given to the opinion of the December 2012 VA examiner who is a physician. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). There is no medical evidence of record showing that the Veteran currently has residuals from a twisting incident of the left ankle during military service, and the Board may not accept unsupported lay speculation with regard to medical issues. The Board has considered the benefit of the doubt doctrine when making these findings, but the preponderance of the evidence is against the Veteran's claim for entitlement to service connection. 38 U.S.C.A. 5107(b) (2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a left ankle disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs