Citation Nr: 1339273 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 10-20 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of right ankle sprain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Roya Bahrami, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1977 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for residuals of right ankle sprain. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file (Virtual VA). The Board has reviewed the contents of the Virtual VA file in addition to the paper file in deciding this claim. FINDING OF FACT Chronic disability of the right ankle did not have its clinical onset in service and is not otherwise related to active duty. CONCLUSION OF LAW The Veteran does not have a right ankle disability that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and 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, 187 (2002). For service connection claims, proper notice of what is necessary to substantiate the claim requires that the Veteran be informed of the following five elements: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio, 16 Vet. App. at 187. All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, a delay in timing of the notice is "cured," and therefore harmless, when notice is followed by readjudication of the claim (such as through issuing a Statement of the Case or Supplemental Statement of the Case) after the claimant has had an opportunity to submit additional evidence. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). Here, prior to the initial rating decision in this matter, an October 2008 letter notified the Veteran of all five elements of a service connection claim, and also informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim. Therefore, the duty to notify is satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. at 484; Quartuccio, 16 Vet. App. at 187. VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the Veteran's service treatment records and VA medical records are in the claims file. Private treatment records identified by him have also been associated with the file. He has not identified any other records or evidence that remains outstanding. Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied. See 38 C.F.R. § 3.159(c). The duty to assist also includes providing a medical examination or obtaining a medical opinion when it is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that the Veteran contends that he was not provided with an appropriate examination. Here, the RO provided the Veteran with an appropriate examination in May 2009. Specifically, the examiner reviewed the claims file and medical history (including X-rays from October 2008), examined the Veteran, and provided an explanation for the opinion stated which is consistent with the credible evidence of record and enables the Board to make an informed decision. See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). There are no apparent inconsistencies or ambiguities in the examination report. See Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (2011). Accordingly, VA's duty to provide a VA examination is satisfied. See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. In sum, VA's duty to notify and assist under the VCAA has been satisfied. The Veteran has had ample opportunity to participate in the development of his claim. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim...must be considered prejudicial.")). Accordingly, the Board may proceed with appellate review. II. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection may be established on a direct basis with evidence showing (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a). For the chronic diseases listed in 38 C.F.R. § 3.309(a) (2012), the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases," and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." Walker, 708 F.3d at 1338-39 (observing that a claim for a chronic disease "benefits from presumptive service connection...or service connection via continuity of symptomatology."). The Veteran contends that his current right ankle injury was incurred in service, has never healed properly, and has continued to cause him pain since separation from service. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for residuals of right ankle sprain. Turning to the service treatment records, a December 1976 entry examination was negative for any complaints, treatment or diagnosis of a right ankle injury. The clinical evaluation of the Veteran's lower extremities was shown to be normal, and the Veteran denied a history of problems in his lower extremities in his medical history report. In April 1982, the Veteran presented at the military clinic for recurrent pain from a chipped bone in his right ankle. The treatment provider noted that the Veteran felt pain and tenderness in the right foot below the ankle. The Veteran was assessed with soft tissue injury via the chipped bone. In July 1982, the Veteran returned to the military clinic with the same complaints. Upon physical examination of the right ankle, the treatment provider observed no swelling, no edema, good range of motion, and no point tenderness, but did note that the right ankle was painful when pressure was applied to it. At the January 1984 separation examination, the clinical evaluation of the Veteran's lower extremities was shown to be normal. The evidence clearly shows the Veteran's complaints of right ankle pain during his period of service. However, the weight of the evidence demonstrates that during the Veteran's service there was no combination of manifestations sufficient to identify a right ankle disability so as to establish chronicity of such claimed disorder during service. 38 C.F.R. § 3.303(b). While the Veteran experienced right ankle pain for a period of time while on active duty service, the service treatment records do not reflect a chronic right ankle disability. To the contrary, the evidence indicates that the right ankle symptoms experienced during active duty service were of an acute and transitory nature. As chronicity in service has not been established, a showing of continuity of symptoms after discharge is required to support the Veteran's claim for service connection for residuals of right ankle sprain. 38 C.F.R. § 3.303(b). A review of the record reflects that many years elapsed following service before the Veteran was treated for his right ankle. Indeed, the post-service record on appeal is negative for any findings of complaints, treatment or diagnosis of a right ankle disorder until many years after his separation from service. The first post-service medical evidence of record reflecting the Veteran's complaints of right ankle pain is an October 2008 VA treatment record, wherein the Veteran reported that he was experiencing pain in the right ankle region - similar to the area he injured in service. VA treatment records dated October 2008, November 2008, and May 2009 reflect the Veteran's complaints of ongoing pain in his right ankle region. During his October 2008 VA podiatry consultation, the Veteran complained of occasional pain at lateral right ankle that limited ambulation. The Veteran recalled the chipped bone in service, and stated that he experienced pain since then but the pain had become more frequent recently. The podiatrist ordered X-rays of the right ankle, which were negative for any deformity. The podiatrist opined that his pain may be related to his pes planus. The Veteran's November 2008 treatment record notes the Veteran's complaint of occasional right ankle ache. The physician assessed chronic ankle/foot pain. At the May 2009 VA treatment, the physician noted no ankle edema or swelling, minimal tenderness along the left ankle, and assessed chronic ankle/foot pain. The record does not contain any notations of complaints or diagnoses specific to the right ankle. The Veteran was afforded a VA examination for his right ankle in May 2009. Based on his review of the service treatment records, the VA examiner acknowledged the Veteran's statements of a chip bone injury and right ankle pain during service. The Veteran reported ankle pain on the anteromedial and anterolateral aspects of the ankle. He further stated that the pain is mainly related to activities such as walking and standing for more than 15 minutes at a time, and it is present 4 out of 7 days a week. The Veteran rated his pain level at 8.5 on a scale of 1to10. He takes ibuprofen and soaks his foot in hot water to ease the pain. The Veteran did not report interference with his occupation. Upon physical examination, the Veteran was shown to have dorsiflexion to 10 degrees and plantar flexion to 40 degrees. The examiner did not observe any pain during range of motion exercises. The VA examiner also reviewed the October 2008 X-ray films which were clear for any fractures, dislocations or bony destructive lesions. Based on his review of the claims file, as well as his discussion with, and evaluation of, the Veteran, the VA examiner opined that the Veteran's right ankle pain is less likely than not related to his in-service right ankle strain. The examiner acknowledged the Veteran's in-service injury but stated that the Veteran has no radiographic evidence of an old injury from a bony standpoint. The examiner noted that the Veteran may have had a ligamentous strain that should have resolved by this time. As a result, the examiner concluded that the conditions are not related. At an October 2009 orthopedic surgery consultation, the Veteran complained of right ankle pain and discomfort since he chipped a bone in his ankle in 1982. He reported discomfort with prolonged standing, excessive walking or bicycling. The examiner opined that the Veteran had normal gait and minimal discomfort of antero-medial ankle proximal to medial malleolus. The orthopedic surgeon ordered X-rays, which suggested questionable ectopic calcification of lateral aspect of infero-lateral medial malleolus, but were normal in mortise projection. The orthopedic surgeon assessed the problem as gout rather than a right ankle injury. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a right ankle disability. The greater weight of the evidence points to the Veteran not having any chronic right ankle pathology stemming from service. The Veteran was treated for right ankle pain that was thought to be due to a chipped bone or soft tissue injury; physical examination did not reveal chronic disability and there were no pertinent findings on the separation examination. The May 2009 VA examiner assessed the Veteran with residuals of the ankle sprain, however, it was determined that the Veteran's "right ankle pain" was less likely than not related to his in-service ankle strain, and the examiner explained that the conditions were not related. Considering the negative physical examination at separation from service, the long period of time without treatment for right ankle disability following service and the symptomatology exhibited, the examiner's conclusion is supported by the evidence. The Board has considered the Veteran's assertions that he has a right ankle disorder that is related to his time in service. However, as a layperson, the Veteran is not competent to give a medical opinion on the diagnosis of this claimed disorder. He is competent to report on symptoms he experienced either during or following service, but not to say what any diagnosis is. Thus, while the Veteran is competent to report symptoms observable to a layperson, such as pain in the right ankle area, a diagnosis that is later confirmed by clinical findings, or a contemporary diagnosis, he is not competent to independently provide a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Further, the May 2009 VA examiner considered the Veteran's report of in-service and post-service symptoms in reaching their medical conclusions. Consequently, in this case, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant a claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Moreover, even if the Veteran's contentions could be read as claiming continuity of symptomatology since service, the medical evidence of record discloses 24 years from the time the Veteran separated from active service and the first evidence of record indicating treatment for the right ankle. In the absence of any objective evidence to support his complaints of continuity of symptomatology in the years since service, the initial demonstration of right ankle problems 24 years after service is too remote from service to be reasonably related to service and diminishes the reliability of the Veteran's current recollections. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). In addition, the Board notes that the Veteran filed claims for compensation in the 1990s and never mentioned right ankle problems. It seems reasonable that if he had chronic right ankle disability that he felt had its onset in service, he would have mentioned this when filing his compensation claims in the 1990s and was aware of the compensation program. Therefore, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a right ankle disorder. See 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision does not apply. See Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for residuals of right ankle sprain is not warranted. ORDER Entitlement to service connection for residuals of right ankle sprain is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs