Citation Nr: 1335865 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 05-29 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a right ankle disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran had active service from August 1974 to August 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in San Juan, Puerto Rico. This matter was previously before the Board in February 2009 at which time it was remanded for additional development, to include for a VA examination and opinion with regard to the right ankle disorder. In January 2012, the Board determined that the VA examiner's opinion was inadequate and remanded the matter for a new VA examination and opinion and to obtain records from the Social Security Administration. All development has been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Based upon correspondence from the Veteran, it is unclear whether he is attempting to raise the issue of whether new and material evidence has been submitted for entitlement to service connection for a psychiatric disorder. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it referred to the AOJ for appropriate action. FINDING OF FACT The Veteran has right ankle pain but no diagnosed right ankle pathology. CONCLUSION OF LAW The criteria for service connection for a right ankle disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (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). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the duty to notify was satisfied by way of letters sent to the Veteran in September 2004 and January 2010 that fully addressed all notice elements. The September 2004 letter was sent prior to the initial RO decision in this matter and informed the Veteran of the evidence required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The January 2010 letter informed the Veteran of how ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473. While this letter was not sent prior to the initial rating decision, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. In addition, the duty to assist has also been satisfied. The Veteran's service treatment records, Social Security Administration records, and identified private and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board has reviewed the Veteran's electronic records on Virtual VA. VA provided the Veteran examinations in February 2010 and February 2012 to determine the nature and etiology of the his claimed right ankle disorder. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The February 2010 examination report is inadequate because the examiner did not consider the Veteran's service treatment records showing he injured his right ankle and post-service medical records documenting complaints of right ankle pain. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The February 2012 examination report is adequate, as it is based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran. Id. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this 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. Service Connection Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. On the other hand, continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a), even if such is noted to be "chronic." See Walker v. Shinseki, 708 F.3d 1331 (2013). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 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. The Veteran contends that he has had right ankle problems since service. Service treatment records dated in July 1975 show that he dropped an ammunition box on his right foot and fractured his third toe. In September 1975, he twisted his right ankle. The physical examination revealed swelling and tenderness along the lateral malleolus. X-rays were within normal limits. The diagnosis was sprain. In January 1976, he was again treated for a sprained right ankle. Physical examination revealed swelling and tenderness along the lateral malleolus. X-ray showed moderate soft tissue swelling and no evidence of fracture. The March 1976 separation examination showed no abnormalities of the ankle. Shortly after service, a September 1977 private medical record shows the Veteran reported right ankle pain since service. In November 1990, VA X-rayed the right ankle due to continuing complaints of pain. X-rays were normal. No pathology was identified. A private evaluation in May 1992 shows the Veteran could not walk well because of his right ankle. VA outpatient treatment records dated from 1999 to 2002, including a report from a general VA examination conducted in September 2000, do not show complaints of or treatment for right ankle symptomatology. In a September 2004 statement, the Veteran indicated that he had experienced right ankle pain since service. On VA examination in February 2010, the examiner noted that the Veteran reported having right ankle pain due to twisting his right ankle in 1975 during service. The examiner noted there was tenderness and pain with repetitive motion and a loss of five degrees of plantar flexion after repetitive motion due to pain. X-rays were normal. The examiner concluded that there was no right ankle pathology shown on examination. On VA examination in February 2012, the examiner reviewed the claims file and examined the Veteran. The examiner noted the history of injury to the right ankle during service. The Veteran also reported that he fell about six months after discharge from service. He denied flare-ups and all range of motion testing was normal with no evidence of painful motion. No additional limitations were observed after repetitive testing. The Veteran had no functional loss or functional impairment of the ankle. The examiner did not observe localized tenderness or pain on palpation of the right ankle. All other test results were normal. The examiner observed that a November 2011 VA treatment record indicated a diagnosis of traumatic arthropathy of the ankle. However, the examiner said the diagnosis was not corroborated by X-rays of the right ankle, which are the study of choice to diagnose arthropathy. He noted that the November 1990 and February 2010 X-rays were normal, and concluded that the Veteran does not have post traumatic arthropathy or arthritis of the right ankle. The examiner also indicated that the Veteran was overreacting and exaggerating during the interview and physical examination, and that his subjective complaints did not correlate with the objective findings. The examiner concluded that since the X-rays and clinical evaluation showed no pathology of the right ankle, no opinions would be rendered. The Board has reviewed all of the evidence and finds that service connection for the right ankle is not warranted because the Veteran does not have a current right ankle disability. The evidence shows that the Veteran has periodically reported right ankle pain since September 1977, and that the right ankle pain had onset during and has continued since service. Notably, the Veteran is competent to report symptoms such as pain. However, the neither the medical nor lay evidence shows that he has had pathology or a disability associated with the right ankle pain since service. While the Veteran has reported pain throughout the years, "[p]ain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). Simply, the Veteran's X-rays and clinical evaluations have shown no pathology of the right ankle. The law limits service connection to cases where the underlying in-service incident has resulted in a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability); see also 38 C.F.R. §§ 3.303; 3.310. To be present as a current disability, there must be evidence of the condition at some time during the appellate period. Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). Thus, because the evidence does not show that the Veteran has been diagnosed with any right ankle disability during the pendency of the claim, and since pain alone is not a disability subject to service connection, Shedden element (1) has not been met, and the Veteran's claim fails on this basis alone. See Gilpin, 155 F.3d 1353. The Board reiterates that it does not doubt that the Veteran currently experiences right ankle pain. However, the medical evidence of record simply does not show any underlying pathology for the claimed right ankle pain. Accordingly, as there is no evidence of a current disability, the preponderance of the evidence is against the claim and service connection for the right ankle must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); see Gilbert, 1 Vet. App. 49. ORDER Service connection for a right ankle disability is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs