Citation Nr: 1342019 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 11-13 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Whether new and material evidence has been received to reopen a claim seeking service connection for a left ankle disability. 2. Entitlement to service connection for a left ankle/foot disability. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to February 1967. This appeal to the Board of Veterans' Appeals (Board) arises from an August 2010 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans' Affairs (VA), that apparently reopened the claim for service connection for a left ankle disorder and then denied that claim on the merits. In July 2013, a Board hearing was held at the RO before the undersigned Veteran's Law Judge; a transcript of the hearing is of record. FINDINGS OF FACT 1. In a July 1994 rating decision, the RO denied service connection for left ankle condition, finding that the Veteran had no current residual ankle disability. The Veteran did not appeal this decision. 2. Since the July 1994 decision, evidence has been received tending to indicate that the Veteran does have a current disability of the left ankle area, cuboid exostosis of the left foot; thus, this evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. The Veteran's current disability of the left ankle area, cuboid exostosis of the left foot is not shown to be related to service, including the Achilles tendonitis and left ankle problem suffered therein. CONCLUSIONS OF LAW 1. The July 1994 RO decision is final. 38 U.S.C.A. § 7104 (West 2002). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for left ankle disability. 38 U.S.C.A. §§ 5103, 5103A, 5108 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.156, 3.159 (2013). 3. The criteria for entitlement to service connection for left ankle disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1). Given the favorable disposition of the Veteran's claim to reopen, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. Regarding the underlying service connection claim, an April 2010 letter explained the evidence necessary to substantiate the underlying claim and VA and the Veteran's responsibilities. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the letter explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided to the Veteran prior to the initial adjudication of the claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the duty to assist, the claims file contains the service treatment records, VA treatment records, private treatment records, the reports of VA examinations and the assertions of the Veteran and his representative. The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim. The record was left open for 60 days at the time of the Board's July 2013 hearing to provide the Veteran an opportunity to submit private records referenced at the hearing; however, no additional evidence was received from the Veteran. No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claim. II. Analysis In a July 1994 rating decision, the RO denied service connection for left ankle condition, finding that the Veteran had no current residual ankle disability. As the Veteran did not appeal this decision, it is final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. §§ 7104, 7105. Under 38 U.S.C.A. § 5108, however, "If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." "New" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Certain listed, chronic disabilities, including arthritis, are presumed to have been incurred in service if they become manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection nonetheless may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The standard of proof to be applied to decisions on claims for direct service connection on the merits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Concerning the claim to reopen, the evidence received since July 1994 tends to indicate that the Veteran has a current disability in the general area of the left ankle. Thus, the evidence relates to an unestablished fact necessary to substantiate the claim. Additionally, coupled with the evidence already of record, including the Veteran's testimony, which must be presumed credible, it raises a reasonable possibility of substantiating the claim. Accordingly, the evidence is new and material and the claim may be reopened. 38 C.F.R. § 3.156; See also Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence shows that the Veteran has been diagnosed with a current disability of the left foot, in close proximity to the ankle, cuboid exostosis, as shown by the findings of a June 2012 VA examination and a March 2011 VA podiatry consultation. Similarly, a May 2011 VA MRI showed mild degenerative changes at the calcaneal cuboid articulation with marginal osteophyte formation. The Veteran's service treatment records also show that he experienced some problems in the left ankle area during service. On February 6, 1967, he reported pain in the left ankle when walking over the past two weeks. The diagnostic assessment was Achilles tendonitis on the left for the past two weeks. Then when seen by medical personnel the following day, the left ankle was noted to be much better. Subsequently, at his February 1967 separation examination, the lower extremities and feet were found to be normal, with no ankle problems noted. Also, on his February 20, 1967 report of medical history at separation, the Veteran reported that he had not had, and did not have, any prior bone, joint or other deformity, or foot trouble. Thus, while the evidence establishes an injury to the ankle area during service, it does not establish the presence of a chronic Achilles tendon or ankle disability during service. There is also no evidence or allegation of arthritis of the ankle area during the first-post service year so as to warrant presumptive service-connection. 38 C.F.R. §§ 3.307, 3.309. Post-service, the first indication in the claims file of any ankle problems is from June 1994, at which time the Veteran filed a claim for left ankle condition. On his claim form, the Veteran indicated that he did suffer an ankle injury during service in January 1967 but did not identify any post-service treatment for the left ankle. More recently, at a July 2010 VA examination, the Veteran was found not to have any current left ankle condition, as physical examination of the left ankle was normal and an X-ray of the left ankle produced a diagnostic impression of no acute process. During the subsequent June 2012 VA examination, the examiner did diagnose cuboid exostosis of the left foot but found that this disability was less likely than not incurred in or caused by the Veteran's in-service ankle/Achilles injury. The examiner noted that the Veteran's pain was in the lateral foot distal to the lateral malleolus (ankle) and that he was currently diagnosed with the cuboid exostosis, a bony growth in the cuboid bone of the foot. The examiner indicated that it was not possible for Achilles tendonitis (an acute inflammation of the Achilles tendon in the heel) to cause a bony growth on a bone in the lateral foot. The examiner also indicated that even if the Veteran had had a small avulsion fracture of the left ankle, it would have been expected that the small resulting piece of bone would have emanated from the lateral malleolus or distal fibula. If a small piece of bone had been pulled from another bone in the foot, it would not have been attached to the cuboid bone but would have been slightly distant or detached from the affected bone. Therefore, based on the Veteran's history, a review of his service treatment records and the examiner's clinical experience and expertise, it was not likely that the painful exostosis the Veteran complained of was related to either Achilles tendonitis or a sprained ankle treated during service in 1967. It was also less likely than not that the Veteran had an avulsion fracture of the ankle, which led to formation of the current exostosis. The Board finds that the June 2012 VA examiner's opinion is supported by an appropriate rationale, as the reasoning was based on a specific analysis of the location of the in-service injury and current disability and took into account whether the current disability could have resulted from an Achilles tendon and/or ankle injury. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). There is no medical opinion of record to the contrary (i.e. an opinion tending to indicate that the current cuboid exostosis is related to the Achilles tendon/ankle problem during service). Additionally, although the Veteran has asserted that such a relationship exists, as a layperson, with no demonstrated expertise in assessing the etiology of such disability, his opinion may be afforded only minimal probative value. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran is competent to state that he has experienced left ankle symptoms since service; however, his complaints are outweighed by the opinion of the VA examiner which rules out a relationship between the Veteran's current left ankle disorder and his active service. Accordingly, the weight of the evidence is against a finding that the Veteran's current cuboid exostosis is related to service. The June 2012 VA examiner also did include a diagnosis of Achilles tendonitis, remote but this simply refers to the original 1967 tendonitis diagnosis, with the examiner noting that there were no current residuals (and thus, no current Achilles tendonitis disability). Also at a September 2010 left ankle consultation, a private physician, after noting that left ankle X-rays had shown no sign of fracture, dislocation, arthritis, infection or inflammatory problem, did indicate that he thought the Veteran probably had some soft tissue ligamentous injury to the ankle but that this was not a problem that would require surgical intervention or bracing. This finding was made without the benefit of a subsequent March 2011 VA MRI, however, which showed that the anterior and posterior talofibular, syndesmotic and calcaneofibular ligaments were all intact, and that the deltoid ligamentous complex, spring ligament and tarsal tunnel were all unremarkable. Thus, as subsequent practitioners (i.e. the March 2011 VA podiatrist and the June 2012 VA examiner did review the MRI report showing no indication of ligament impairment and then did not diagnose any ligament impairment, the weight of the evidence is against a finding that any such impairment is present. During the July 2013 Board hearing, the Veteran asserted that the injury in-service involved the top of the outside of his left foot where the "leg bone jumps over the foot." He indicated that he developed two knots there from the injury and that the knots had been present ever since (i.e. the current cuboid exostosis). The Veteran is competent to make such an assertion. However, the service treatment records do not show the presence of any such pathology at the time of the February 1967 injury. Instead, the injury was specifically determined to be Achilles tendonitis (i.e. involving injury to the Achilles tendon, above the heel) with no bumps/bony protuberances found. Also, on his February 1967 report of medical history at separation, the Veteran did not report any bone, joint or other abnormality nor did he report any foot trouble. Given the lack of any contemporaneous report on the February 1967 report of medical history; given the lack of any finding of such pathology on medical examination in February 1967 either at the time of the Veteran's injury or at the separation examination; given that the specific, contemporaneous diagnosis rendered at that time did not involve the cuboid area; and given that the Veteran's current retrospective report of continuity of cuboid pathology has been made more than 40 years after service, and is clearly self-serving, the Board credits the findings concerning the location of the pathology contained in the service treatment records and does not find credible the much later assertion made by the Veteran. Thus, cuboid bone pathology, to include cuboid exostosis, was not shown in service. Accordingly, the Board finds accurate the implicit finding that the Veteran's cuboid exostosis was not present during service relied upon by the September 2012 VA examiner in formulating his medical nexus opinion. In sum, as a chronic left ankle/left foot disability was not shown in service; as arthritis of the ankle area was not shown during the first post-service year; and as the Veteran's only demonstrated current left ankle/foot disability, cuboid exostosis, is not shown to be related to service, service connection for this disability is not warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309; Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The preponderance of the evidence is against the claim and it must be denied. Alemany, 9 Vet. App. 518 (1996). ORDER New and material evidence having been received, the claim seeking service connection for left ankle disability is reopened. Service connection for a left ankle/foot disability is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs