Citation Nr: 1342234 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 10-46 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for a left ankle disorder. 3. Entitlement to service connection for a low back disorder. 4. Entitlement to service connection for a cervical spine disorder. 5. Entitlement to service connection for multiple arthralgias (claims as bilateral hand, knee and hip conditions). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The appellant served as a member of the Idaho Army National Guard (ARNG) for periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) from March 1993 to March 2009. At this time the appellant has no service-connected disabilities. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. A review of the appellant's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the appellant's claim. In August 2011 the appellant submitted additional medical evidence with a waiver of RO review of that evidence. The issues of entitlement to service connection for a low back disorder, for a cervical spine disorder, and for a multiple arthralgias disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A right ankle sprain during ACDUTRA resolved without any residual disability. 2. Private examinations of the appellant's ankles have not revealed any deformity, and the appellant's complaints of bilateral ankle pain have not been attributed to any physical disability. CONCLUSIONS OF LAW 1. A right ankle disorder was not incurred in or aggravated by ACDUTRA or INACDUTRA. 38 U.S.C.A. §§ 101(24)(B), 1110 (West 2002 & Supp 2013); 38 C.F.R. §§ 3.6, 3.303 (2013). 2. A left ankle disorder was not incurred in or aggravated by ACDUTRA or INACDUTRA. 38 U.S.C.A. §§ 101(24)(B), 1110 (West 2002 & Supp 2013); 38 C.F.R. §§ 3.6, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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) (West 2002); 38 C.F.R. § 3.159(b) (2013). In this case, the appellant received 38 C.F.R. § 3.159(b) notice in a May 2009 letter, issued prior to the appealed July 2009 rating decision. In the letter, the appellant was also notified of VA's practices in assigning disability evaluations and effective dates for service-connected disabilities pursuant to Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, during the August 2011 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claims. These actions provided an opportunity for the appellant and her representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). There are accordingly no deficiencies of notification in this case, nor has the appellant argued otherwise. VA has a duty to assist the appellant with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the appellant's service treatment records (STR) and her private medical records concerning the claimed ankle disabilities have been obtained. The Board recognizes that the appellant has not been afforded a VA examination with regard to her claims for service connection for right and left ankle disorders. However, in this case the Board finds that an examination is not necessary. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Although there was a right ankle injury during ACDUTRA, there is no evidence of a currently diagnosed disability of either ankle that is etiologically related to service. The appellant asserts that service connection is warranted for right and left ankle disabilities based on injuries sustained during her service in the ARNG. Pursuant to 38 U.S.C.A. § 101(24), "active military, naval, or air service" includes "active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred in or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002). Put another way, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training, or for injury incurred during inactive duty training. Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137, 1153 (West 2002). Even if a person has had a period of active duty, that service alone does not make the claimant a "Veteran" for the purpose of the application to any period of service which is ACDUTRA or INACDUTRA the presumption of soundness upon service entrance, the presumption of aggravation (of a pre-existing disorder) or the presumption of service incurrence of chronic diseases which are generally applicable to veterans who had active duty. See generally Smith v. Shinseki, 24 Vet. App. 40 (2010). When a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training. See Acciola v. Peake, 22 Vet. App. 320, 324 (2008). The appellant testified in August 2011 that she injured her ankles while in basic training. She reported that she had a hairline or stress fracture in 1993, and that she sprained her right ankle. She claimed that subsequent running in boots during physical training (PT) and marching, aggravated her ankles. An October 1995 STR reveals that the appellant twisted her right ankle playing volleyball. Examination revealed slight edema, a little discoloration, palpable pain and decreased range of motion due to guarding of the ankle. The assessment was Grade I sprain. The examiner advised ice and elevation, advised no running or lifting for a week, and advised range of motion exercises until the pain subsided. The appellant was seen for follow-up in March 1996. Examination revealed full range of motion. The appellant's right ankle was stable, nontender, and had good strength. Drawer test was negative. The impression was status post sprain of the right ankle, and the appellant was released to full duty. The remainder of the STRs reveal no complaints or findings related to either ankle. Chiropractor medical records dated from July 2003 to July 2009 reveal complaints of bilateral hip pain, low back pain, upper back pain, neck pain, and shoulder pain. The chiropractor records make no reference to the appellant's ankles. The appellant went to a private physician, Dr. T.M., in April 2007. She complained of sharp burning pain of the right knee and ankles. She reported that it hurt to stand after sitting for a long time and that this had been going on for one month. She stated that there was no recent history of trauma or injury. She denied associated swelling and locking. She denied previous problems of this nature. She stated that the symptoms occurred in the morning, with walking, with running, and with activity. Examination of the ankles revealed no overlying swelling, effusion, erythema, increased skin temperature, or rash. The stance of the bilateral foot and ankles were normal. There was no obvious foot deformity. The good motor strength of the muscle groups was normal and the appellant's gait was normal. There was point tenderness to palpation of the bilateral peroneal tendon. The assessment included ankle joint pain. (These records are contained in a white STR envelope.) A May 2007 examination report from Dr. T.M. notes that the appellant complained of chronic pain of the bilateral ankles, bilateral knees, bilateral hips and bilateral arms. Examination of the ankles revealed pain with flexion extension. There was no overlying swelling, effusion, erythema, increased skin temperature, or rash. The stance of the bilateral foot and ankles were normal. There was no obvious foot deformity. Motor strength of the muscle groups was normal and the appellant's gait was normal. The assessment included multiple joint pain. A May 2007 letter from Dr. T.M. states that the appellant was in the process of evaluating her chronic ankle and knee joint pains. The appellant was seen by a private physician, Dr. R.L., in April 2008 complaining of joint pain in the hands, knees and ankles for the past year. The examination report does not indicate that the appellant's ankles were examined. In May 2008, the appellant again reported pain in the hands, knees and ankles. The appellant reported that her knees and ankles were very sore after trying to train for an upcoming PT test. On July 8, 2009 the appellant complained of low back pain. The appellant was noted to have normal bilateral lower extremities. The appellant's gait was unremarkable, and she was noted to have no pain with weightbearing. On July 14, 2009, the appellant again saw Dr. R.L. for complaints of low back pain. The assessment was chronic pain syndrome of the back and hands. A July 30, 2009 treatment record, notes that the appellant reported to Dr. R.L. that she had had knee and ankle arthralgias since roughly 2007. Dr. R.L. made no findings regarding the appellant's ankles. In June 2011 the appellant was treated by a different physician at Dr. R.L.'s medical group for neck pain. (These records are contained in a white STR envelope.) With regard to the appellant's testimony that she had stress fractures of the ankles while in basic training, the Board does not find the appellant's statements to be credible. Not only do none of the medical records indicate that the appellant ever had stress fractures of the ankles, but when the appellant first reported bilateral ankle pain in April 2007, she reported that she had had such symptoms for a month and denied ever having such before. The Board recognizes that the STRs do document that the appellant sprained her right ankle while on ACDUTRA in October 1995. Furthermore, the Board acknowledges that the appellant is competent to report current bilateral ankle pain symptoms. However, on the question of whether the in-service right ankle injury resulted in any current right ankle disability, the Board finds the appellant's lay statements to be of limited probative value. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the appellant has a current right ankle disability that is related to the right ankle injury documented during service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In this case, the probative medical evidence of record, includes a STR less than five months after the injury indicating that the appellant's right ankle was normal, and the lack of any further findings or complaints related to a sprained right ankle in any of the other STR or private medical records, indicate that the appellant's right ankle sprain in October 1995 was acute and transitory and resolved without any residual disability. Furthermore, the Board notes that the record does not contain any diagnosis of any current disorder of either ankle. The Board recognizes that private medical records contain some complaints of bilateral ankle pain. However, the private examinations revealed no physical deformity of the ankles. The examiners had no positive findings other than pain. The Board notes that mere pain, 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. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). In this case, the medical evidence clearly shows that the appellant has no current disability of either ankle that is due to any of her periods of reserve service. Overall, the preponderance of the evidence is against the appellant's claims of service connection for right and left ankle disorders. As such, these claims must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a right ankle disorder is denied. Entitlement to service connection for a left ankle disorder is denied. REMAND The appellant testified in August 2011 that she injured her knees and hips while doing PT tests. The appellant asserts that she injured her hands, lower back and knees while working the Special Olympics (during reserve duty). She stated that she hurt her hands at the Special Olympics due to carrying crates of soda. The appellant testified that she injured her back due to running and sit-ups during her PT tests. She also testified that she injured her cervical spine as a result of PT and doing sit-ups. The chiropractor records dated from July 2003 to July 2009 show frequent neck, low back, and hip complaints. The appellant's service treatment records show that the appellant was treated in April 1995 for stiff neck, shoulder pain and spasm due to the sit-up portion of her PT test. The diagnosis was cervical/thoracic strain. A May 1997 STR shows that the appellant had muscle spasms and was unable to fully turn her neck to the right. The impression was cervical strain. The appellant reported that she hurt her neck while doing sit-ups while doing the APFT. A November 2003 STR, a Report of Medical Examination, notes that the appellant had pain and limited range of motion of the neck. In an August 2011 letter, the appellant's chiropractor stated that the appellant has a chronic neck condition. Given that the STRs document in-service neck injuries, given that the private medical records document a chronic neck disability, and given that the appellant has provided credible evidence of developing neck problems while engaging in PT, the appellant should be provided a VA medical examination and a VA medical opinion should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159(c)(4) presents a low threshold for the requirement that evidence indicates that the claimed disability may be associated with in-service injuries for purposes of a VA examination). An August 2009 Statement of Medical Examination and Duty Status indicates that the appellant had fibromyalgia of the hands, knees and lower back that were aggravated while the appellant was on "active duty." The Board notes that the record of the appellant's reserve service indicates that the appellant was actually on ACDUTRA at that time. The appellant should be provided a VA examination to determine if the appellant has any current disabilities of the low back, hands, knees or hips, and if so whether any such disabilities were incurred as a result of, or aggravated by, the appellant's reserve duty. See McLendon. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and request that she identify any relevant records that are not already of record pertaining to her claimed low back, cervical spine and multiple arthralgias disabilities. Provided that any authorization necessary for the release of such documents has been provided, attempt to obtain the identified records. If any records cannot be obtained, a notation to that effect should be inserted in the claims file. The appellant and her representative are to be notified of any unsuccessful efforts in this regard, in order to allow the appellant the opportunity to obtain and submit those records for VA review. 2. After the above has been completed, afford the appellant a VA medical examination of the cervical spine, lumbar spine, hands, knees and hips. The claims folder must be made available to the examiner, and the examiner must specify in the examination report that the claims file was reviewed. All tests and studies deemed necessary, including x-rays, should be performed. The examiner should identify all current disabilities present of the cervical spine, lumbar spine, hands, knees and hips. For each disability of the cervical spine, lumbar spine, hands, knees and hips identified, the examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that such disability was incurred as a result of an injury that occurred during one of the appellant's periods of reserve duty, including physical training during such duty. The examiner must provide a complete rationale for all opinions provided. 3. Upon completion of the above requested development, conduct any other development that is deemed warranted and readjudicate the appellant's claims. If any benefit sought on appeal is denied, the appellant and her representative should be provided a supplemental statement of the case (SSOC) and afforded the appropriate opportunity to respond before the case is returned to the Board. The SSOC should include review of all evidence received since the September 2010 statement of the case. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE.) 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. 2013). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs