Citation Nr: 1341433 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 10-16 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a left ankle disability, to include a left ankle sprain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from November 1980 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a November 2012 decision, the Board denied the Veteran's claims. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). While that case was pending at the Court, the Veteran's attorney and the VA Office of the General Counsel filed a joint motion to vacate the Board's decision and remand the Veteran's claim for readjudication. In an April 2013 Order, the Court granted the motion, vacated the Board's November 2012 decision, and remanded this case to the Board for readjudication. The issue of entitlement to service connection for a low back disability, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The Veteran's left ankle disability, to include a left ankle sprain, was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSION OF LAW The requirements for establishing service connection for a left ankle disability, to include a left ankle sprain, have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.159, 3.326 (2012); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claim, a letter dated in March 2009 fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the duty to assist in this case, the Veteran's service treatment records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination in August 2009 in conjunction with his claim. The Veteran and his representative have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issue addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. II. Service Connection 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). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence 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, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). 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 United States Court of Appeals for Veterans Claims (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 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."). The service treatment records show that in March 1985 the Veteran twisted his right ankle playing basketball and was diagnosed with a right ankle sprain. There were no complaints or findings related to the left ankle. In June 1987 the Veteran again twisted his right ankle playing basketball, and there were again no complaints or findings related to the left ankle. At the Veteran's October 1987 discharge examination his feet and lower extremities were normal. The service treatment records do not contain any complaints, treatment or diagnoses related to the left ankle. The Veteran had a VA examination in August 2009 at which he reported multiple sprains to both ankles in service during physical training and that he fractured the left ankle during physical training around 1985 when he jumped and landed on the lateral ankle. He subsequently used ankle braces on both ankles during physical training. The Veteran said at the VA examination that he was unable to currently use braces due to swelling. He complained of a constant dull ache in the ankles over the past eight years and effusion three to four times a month. The Veteran said that the ankles were worse with walking and exertion. He took ibuprofen with a fair response and reported that the ankles had gotten progressively worse. The examiner's findings for the left ankle were crepitus, edema, tenderness, instability, and guarding of movement. There was also a 3 cm. fluctuant callous at the distal aspect of the anterior talofibular ligament insertion that was tender to palpation. The ankle had slight laxity on passive inversion. X-rays of the left ankle were normal. The examiner diagnosed the Veteran with a chronic left ankle sprain and opined that it was at least as likely as not secondary to injures sustained while on active duty. The Veteran wrote in his October 2009 Notice of Disagreement that he sought treatment during service when he was injured during physical training, went to sick bay, and had a cast put on it. Private treatment records from January 2011 to March 2012 do not show any complaints or treatment related to the left ankle. The Veteran is competent to report that he injured his left ankle during service. See Layno, 6 Vet. App. at 470. However, the Board notes that to the extent he is claiming recurrent symptomatology since service, his reports are not credible given that the left ankle was normal at separation. Furthermore, the record does not show that the Veteran has had treatment for the left ankle since his military service. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran also reported to the VA examiner that the pain in his left ankle began around 2001, which was approximately 14 years after his military service. The Board cannot give probative value to the VA examiner's opinion that the chronic left ankle sprain is at least as likely as not related to service. The examiner found the Veteran's reports of an in-service ankle fracture to be credible. However, the examiner's opinion merely considered the report of the in-service injury and the current ankle disability without any discussion of the intervening period. The examiner did not discuss the normal separation examination and the gap of approximately 16 years between when the Veteran said he injured his left ankle during service and started having pain after service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("[M]ost of the probative value of a medical opinion comes from its reasoning" and that the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."). The Board also notes the Veteran's service treatment records document numerous complaints, including of the back, neck, knee, shoulder, finger, hand and right ankle. The service treatment records also are voluminous. This permits the reasonable inference that had there been a left ankle problem during service, it would have been documented. It follows, that the absence of any record of left ankle complaints supports the conclusion there was none. This is further reinforced by the finding at service separation, that the feet and lower extremities were normal upon clinical evaluation, as well as the absence of any record of ankle complaints until many years after service, and that when this occurs, the onset is dated to a period of time post service. In this context, the Veteran's current contention regarding in-service left ankle injury, made in the pursuit of a claim for monetary benefits, is not credible. There are no probative medical opinions of record indicating that the left ankle disability is related to service. While the Veteran has made statements to the effect that the currently diagnosed left ankle disability is related to an injury he sustained during service, he is not competent to make such determinations. His statements on etiology are therefore not afforded probative value. See Jandreau, 492 F.3d at 1376-77; citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.2006)) (though the Federal Circuit held that lay evidence may be competent to establish a diagnosis of a condition, it did not state that lay evidence may be used to determine medical etiology). The record also does not show that the Veteran had a left ankle disability within a year of active service. Because the evidence preponderates against the claim of service connection for a left ankle disability, to include a left ankle sprain, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a left ankle disability, to include a left ankle sprain, is denied. REMAND Regarding the back disability, the basis for the joint motion for remand was that the Board had relied on an examination report that was inadequate. The identified inadequacy was the examiner's failure to assume the veracity of the Veteran's reported history when providing the opinion. Given that, a new examination is necessary as detailed below. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination of his back. The claims file should be made available to the examiner for review prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. 2. The examiner is also asked to provide an answer the following: If appellant experienced the continuous, post-injury symptomatology he alleges, would his current disability be at least as likely as not related to service? If the Veteran's reports of continuous, post-injury symptomatology since 1981 are found not to be credible, is it at least as likely as not that any current back disability is related to service? A detailed rationale for any opinion expressed should be set forth. If the examiner cannot state an opinion without resorting to speculation, the examination report must state why that is so. 3. Readjudicate the Veteran's claim. If the benefit sought on appeal is not granted in full, the RO should issue the Veteran a supplemental statement of the case and provide him an opportunity to respond. 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