Citation Nr: 1341483 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 07-34 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left ankle disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M.Clark, Counsel INTRODUCTION The Veteran had active service from June 1991 to June 1995 and from October 1995 to March 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2008, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In October 2008, April 2009, July 2010, March 2012, December 2012, and June 2013, the Board remanded this issue to the RO via the Appeals Management Center (AMC) for additional development. The Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT There is no credible or competent evidence that the Veteran has a current diagnosis of a left ankle disorder at any time during the appeals process. CONCLUSION OF LAW A left ankle disorder was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1111, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify Before addressing the merits of the service connection claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. With respect to the claim for service connection for a left ankle disorder, the Veteran was sent a letter in July 2006 that addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Thus, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's Veterans Benefits Management System (VBMS) claims file contains his service treatment records, as well as post-service VA treatment records. Moreover, the Veteran's statements in support of the claim are of record. The Board has additionally reviewed the Veteran's Virtual VA (VVA) claims file. Discussion of the Veteran's July 2008 Veterans Law Judge (VLJ) hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. Entitlement to service connection for a left ankle disorder was identified as an issue at the hearing. Sources of evidence relevant in this regard were identified during this process. The case was subsequently remanded in order to provide the Veteran with additional VA examinations and to obtain additional records. The Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Next, specific VA examinations and opinions were obtained in December 2006, January 2009, April 2012, April 2013, July 2013 and August 2013. 38 C.F.R. § 3.159(c)(4). To that end, 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). To cure deficiencies in the December 2006, January 2009, April 2012, and April 2013 VA examinations and opinions, the Veteran was afforded a subsequent July 2013 VA examination with July 2013 and August 2013 VA opinions. The Board finds that the July 2013 VA examination and July 2013 and August 2013 opinions obtained in this case are more than adequate, as they are predicated on a full reading of the Veteran's claims file. The VA examiners considered all of the pertinent evidence of record, to include his service treatment records, personal statements and history, and provided detailed rationale for the opinion stated. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to this issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). Generally, the evidence must show: (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 (Fed. Cir. 2004); Hansen v. Principi, 16 Vet. App. 110 (2002); Caluza v. Brown, 7 Vet. App. 498 (1995). Continuity of symptomatology is required only where the condition noted during service or in the applicable presumptive period is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). The provisions of § 3.303(b) apply only to the list of chronic disabilities under § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). 'In the absence of proof of a present disability there can be no valid claim.' See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service treatment records reflect that in November 1994 the Veteran suffered a left ankle sprain. The Veteran complained of a swollen left ankle from an inversion injury. The Veteran jumped off a Humvee tailgate and landed on a root one month earlier. The Veteran complained of pain with range of motion and prolonged standing. Physical examination revealed mild edema/erythema of the left ankle and point tenderness. There was limited passive range of motion due to pain. X-rays revealed that the Veteran suffered a left ankle inversion injury three weeks earlier. The impression was mild soft tissue swelling about the lateral malleolus. Later that same month, the Veteran was again seen after he reinjured his left ankle. The assessment was recurrent left ankle sprain. An April 1995 report of medical examination for release from active service reflects that the Veteran's lower extremities and other musculoskeletal systems were evaluated as clinically normal. On contemporaneous self-report of medical history the Veteran stated that he was in good physical condition and was taking no medication. He reported that he had experienced a "severe left ankle strain." He indicated that he had swollen or painful joints. The examiner noted that the Veteran had bilateral patellelfemoral syndrome for 2 years. The Veteran also indicated that he had no arthritis, bone, joint or other deformity and no foot trouble. Post-service records include a March 1998 report of medical examination for re-enlistment which is negative for any findings pertaining to the left ankle and on contemporaneous self-report of medical history, the Veteran responded in the negative as to having swollen or painful joints, arthritis, bone, joint or other deformity or foot trouble. In December 2006, the Veteran underwent a VA examination of his left ankle. The examiner included findings that the Veteran had pain over the left anterior talo-fibular ligament, had excess fatigability with use, and that after repetitive motion he lost 5 degrees of functional range of motion in inversion. X-rays revealed a normal left ankle. The examiner diagnosed hypertrophic scarring of the anterior talofibular ligament and opined that the Veteran's left ankle pain was due to his sprain during active service. A physical examination at a January 2009 VA examination reflected that the Veteran's left ankle was normal and X-rays were normal. The diagnosis was normal ankles. The Veteran underwent an additional VA examination in April 2012. The April 2012 VA examiner stated that the claims file had been reviewed but, given that the physician could not determine how the December 2006 examiner had determined that the Veteran had hypertrophic scarring of the left ankle anterior talofibular ligament, the physician could not determine the etiology of the condition. The VA examiner noted that the December 2006 examination findings were normal and X-rays were normal and that the Veteran was found to have normal ankles during a 2009 examination. The examiner then stated that the in-service ankle sprain occurred in 1994. However, he noted that there was no documentation of chronicity in the Veteran's available medical records and as a result provided a negative etiological opinion. The Board remanded the claim in December 2012 for an additional medical examination. In an April 2013 VA examination report the examiner noted that in December 2006, the Veteran was given a diagnosis of hypertrophic scarring anterior talofibular ligament and it was that examiner's opinion that his left ankle condition was connected to service. The April 2013 VA examiner noted that she was asked to review the records and form an opinion on whether "left ankle hypertrophic scarring anterior talofibular ligament is related to the Veteran's in-service November 1994 left ankle sprain." The April 2013 VA examiner stated that her answer is that she could not answer this question without resorting to mere speculation. The VA examiner furthered that part of the problem was that the original diagnosis of "hypertrophic scarring anterior talofibular ligament" is confusing and bizarre, and not a well accepted diagnosis in medicine. The Veteran underwent a VA examination in July 2013. Physical examination revealed a left ankle sprain by history and left ankle arthralgia. The Board parenthetically notes that 'Arthralgia' is defined as joint pain. See DeLuca v. Brown, 6 Vet. App. 321, 322 (1993) (citing Dorland's Illustrated Medical Dictionary 147 (27th ed. 1988)). An X-ray at that time reflected no significant abnormality. After reviewing the Veteran's examination results and his records the VA examiner Dr. B. H. reflected that it was less likely as not that the Veteran's left ankle disorder is related to service, to include an-in-service ankle sprain. She noted that a review of the currently available medical records fails to document chronicity of the claimed condition during service or after he was discharged from service. She stated that the Veteran was seen in service and that his left ankle sprain resolved prior to separation. She indicated that during the almost twenty years since discharge from service there are no provider notes documenting evaluation of, treatment for, or diagnosis with, any left ankle condition. Dr. B. H. noted that there was no current diagnosis of a left ankle condition and that the Veteran subjectively reports left ankle pain (arthralgia). She stated that while goniometer examination results revealed decreased left ankle range of motion, observed movement was noted to be full and intact. She indicated that X-rays of the bilateral ankles were negative in 2006, 2008, and 2013. Dr. B.H. stated that she had reviewed the December 2006 provider diagnosis of hypertrophic scarring of the anterior talofibular ligament, which had been refuted by the April 2012 provider. She indicated that because there had been no documentation in chronicity of his left ankle disorder and because she was unsure of how the examiner developed the diagnosis of "hypertrophic scarring anterior talofibular ligament" she could not determine the etiology of that diagnosis. She noted that a review of the currently available up-to-date medical literature fails to produce an etiology for a diagnosis of "hypertrophic scarring anterior talofibular ligament." She stated that the July 2013 examination reflected no deformity, no instability, no functional loss, and no weakness of the ankle. She noted that the Veteran's gait was normal and the minimal diffuse muscle tenderness over the ankle joint is non-specific for any anterior taleo-fibular ligament diagnosis. She concluded her opinion stating that bilateral ankle X-rays remain negative and there is no evidence of any chronic joint injury. A second July 2013 VA examiner, Dr. R.A. issued an opinion after examining the Veteran and reviewing his medical records. Dr. R. A. noted that it was less as likely as not that the Veteran's current claimed ankle disorder is the same as incurred in service. She noted the Veteran's claims of persistent discomfort from his ankle. However, she reflected that the Veteran had not had any treatment for the disorder since service, for the last 20 years. She noted that the Veteran was not currently receiving any treatment for the claimed condition and that his examination revealed mild deficits in range of motion on volition but no functional deficits were noted on observation. Dr. R. A. stated that X-rays of the left ankle were normal. She noted that per medical literature review of the anterior talofibular ligament sprain/strain does occur in inversion injuries and given the Veteran's history in the service treatment records as there was an inversion injury it is likely that the 2006 examiner gave a presumptive diagnosis. She indicated that although this may have been the Veteran's original diagnosis, there is no documentation of chronicity or functional disability as a result of the in-service injury in the case of this Veteran, as of this examination. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, the Veteran filed his claim in June 2006; a clinical diagnosis of a left ankle disorder was not of record at that time (resolved or unresolved) nor at any time subsequently since the claim has been pending. The Board acknowledges the December 2006 VA examiner's diagnosis of hypertrophic scarring of the anterior talofibular ligament. However, several VA examiners since this examination have explained why this diagnosis was inaccurate. After considering the medical literature and examining the Veteran, all other VA examiners throughout the appeal have determined that the Veteran has not had a left ankle disorder during the appeal period. The Board finds the assessment of the VA examiners since December 2006 to be the most probative as to whether the Veteran has, or has ever had, a left ankle disorder. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The examiners indicated why the Veteran did not meet the criteria for a diagnosis of a left ankle disorder and together provide supporting rationale for this determination. Thus, the Board finds that the Veteran has not had a left ankle disorder at any time during the appeals period. In the absence of evidence of a current diagnosis of a left ankle disorder, service connection for a left ankle disorder is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has considered the Veteran's claim that he has a current left ankle disorder. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza, 7 Vet. App. at 506. In this case, the Veteran is competent to report symptoms such as left ankle pain as this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 469. However, pain is not a separate disability for VA disability compensation purposes. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). For entitlement to compensation, the evidence must show the existence of a current disability, and one that has resulted from a disease or injury that occurred in the line of duty. In the absence of an identified disease or injury, service connection may not be granted. Id. At this time, there is no competent evidence that the Veteran has a disorder relating to his left ankle, nor that he had any such disorder at any time while the claim has been on appeal. The Board finds significant that despite his complaints of left ankle pain, no disability has been diagnosed, despite various evaluations. Based on the foregoing, the weight of the evidence is against the claim for service connection of left ankle disorder. As such, the appeal for a left ankle disorder must be denied. ORDER Service connection for a left ankle disorder is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs