Citation Nr: 1343345 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 09-33 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for residuals of a spiral fracture of the right distal fibula with right foot pain (hereinafter "right ankle disability"). REPRESENTATION Veteran represented by: American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2004 to February 2005 and July 2005 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In May 2010, the Veteran provided testimony before an RO hearing officer. A transcript of that hearing was prepared and has been included in the claims folder for review. The Veteran had also requested that he be afforded a personal hearing before a Veterans Law Judge (VLJ). A videoconference was scheduled, however, the Veteran subsequently withdrew his request for such hearing. As such the Board may continue to review the Veteran's claim on appeal. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the Virtual VA claims file does not reveal any additional evidence pertinent to the present appeal. FINDING OF FACT The Veteran's right ankle disability is not shown to be etiologically related to his in-service right ankle sprain. CONCLUSION OF LAW The Veteran's right ankle disability was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. Id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. I. 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 duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, prior to the rating decision in this matter, the Veteran received a letter in August 2007 that informed the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claims, and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence. The correspondence also informed him of how disability ratings and effective dates are assigned, if service connected were to be granted. See Dingess v. Nicholson, supra. The VCAA further provides that VA has a duty to assist the Veteran in the development of the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes assisting him in obtaining service treatment records and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. Id. The Board concludes that the duty to assist has been satisfied. The Veteran's available service treatment records (STRs), service personnel records, post-service treatment records, VA examination, and lay statements are in the file. The Board notes that in March 2007 VA issued a formal finding on the unavailability of STRs for the Veteran's period of active service from July 23, 2005 to November 10, 2006. However, additional STRs were located and the RO, subsequently readjudicated the claim after having reviewed records dated November 2003 through September 2008. The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to the present claims. The Board concludes that the duty to assist has been satisfied with respect to obtaining relevant evidence on the Veteran's behalf. See 38 C.F.R. § 3.159(c). The Veteran was afforded a VA examination in July 2007 for his right ankle disability. When VA provides the Veteran with an examination, the Board must determine whether the VA examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the VA examination obtained in this case is adequate, as it is predicated on a review of the claims file, an interview of the Veteran, and examination findings supported by a complete rationale for the opinions stated. Id; see 38 U.S.C.A. § 3.159(c)(4). The Board notes that the examiner did not have the Veteran's STRs to review; however, the Board finds that since the examiner considered the Veteran's statements regarding the nature and treatment of his in-service right ankle sprain, the examiner had sufficient information to make his findings and to provide his opinion regarding the etiology of the Veteran's current right ankle disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Analysis In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that in the summer of 2006, while on a security mission in Iraq, he stepped out onto the top of a Humvee to switch positions with another serviceman and his right ankle buckled causing him to fall. He said that he was treated at his base by a medic, provided some medication, and returned to his duties a day later, because of limited personnel. He said that he never had x-rays taken of his right foot. He stated that his right ankle never completely healed. In December 2006, he said that he slipped on ice and fell down a flight of stairs outside his apartment building sustaining a right ankle fracture. The Veteran argues that his current right ankle disability was related to his right ankle in-service injury that never properly healed. There are no available STRs that document the Veteran's injury, however, a September 2006 post-deployment health report completed by the Veteran reflects that the Veteran had been seen for a sprained ankle during his most recent deployment. The report noted symptoms of swollen, stiff or painful joints, but did not specify the area of the body. Private treatment records dated December 2006 and January 2007 show that the Veteran sought treatment after his fall on the ice and that he sustained a right distal fibular fracture. A large cam walker was applied to his right leg. His treating physician recommended surgery to repair the fibula and prevent further lateral subluxation. VA treatment records dated March and May 2007 reflect that after the Veteran wore the cam walker for 12 weeks, he continued to have residual pain in his right ankle. X-rays of his right ankle showed that the Veteran's right spiral fracture in the distal fibula was healing. At a July 2007 VA examination, the Veteran reported that he had continuous ankle pain since his December 2006 fracture, which increased as he stood for hours at work. He explained that he had not had surgery on the ankle and treated his symptoms with ice every other day and occasionally used a heating pad. The Veteran described the circumstances of his injury to his right ankle in-service and how as a result of the injury, he had swelling and pain. He stated that his ankle was wrapped for a couple of weeks and a month later, his ankle felt completely healed. On objective evaluation, the examiner found that the Veteran had trace swelling over the lateral malleolus, non-tender on palpation, and no warmth or erythema (abnormal redness of the skin). The examiner found that the Veteran's right ankle sprain sustained while in-service had resolved without demonstrable sequelae. Therefore, the examiner opined that the Veteran's current right ankle disability was not etiologically related to his right ankle sprain in-service. After continuing to experience pain in his right ankle, the Veteran agreed to have surgery on his ankle. A March 2008 VA treatment record reflects that the Veteran had surgery to repair peroneal tendon subluxation. Since his surgery, VA treatment records dated May 2008 through March 2011 show that the Veteran continued to report pain in his ankle after engaging in strenuous activities. He also reported that his ankle clicked and popped with certain movements. An April 2009 VA treatment record reveals that x-rays showed his right ankle fracture was well healed. At his May 2010 RO hearing, the Veteran explained that he did not report any current symptoms of pain or injury on his September 2006 post-deployment record, because "everything seemed good". He recalled that after his in-service injury, he continued to go out on missions and that he felt pain in his ankle. He explained that for two weeks he was able to stop engaging in activities that would aggravate his ankle, which he said gave his ankle time to heal. After those two weeks, the Veteran said his ankle had recovered. Based on a review of the complete evidence of record, the Board concludes that the preponderance of the evidence weighs against the Veteran's claim of entitlement to service connection for right ankle disability. The Board finds that the July 2007 VA examination is more probative on assessing whether the Veteran's in-service right ankle sprain is etiologically related to his current right ankle disability. The examiner considered the Veteran's statements regarding his in-service right ankle sprain and found no evidence that his ankle injury had residual effects. The examiner concluded that because his in-service right ankle sprain had fully resolved, the right ankle fracture he sustained after his icy fall down a flight of stairs was unrelated to his injury in-service. After his December 2006 fall, VA treatment records show that the Veteran sustained a right distal fibula fracture, but x-rays did not indicate that the Veteran had aggravated some prior injury. In fact, the Veteran never suggested to his VA or private treating physicians that he had a prior right ankle injury in-service that could be related to his right ankle fracture. Although the Board observes that the Veteran did not have x-rays taken of his right ankle after his injury in-service, the Board notes that a month after his injury, the Veteran said he felt his ankle had recovered. Furthermore, the Veteran made no additional reports of injury or symptoms to his right ankle until he fell in December 2006. The Veteran is competent to report that he had pain and that his ankle clicked or popped on certain movements, however, the Board finds that the Veteran is not competent to report on the etiology of his current right ankle disability. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran argues that he experiences pain and discomfort of his right ankle, the Board notes that 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. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001); see also, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim, even if the disability resolves prior to VA's adjudication of the claim). In this case, the Veteran filed his claim in July 2007, prior to the March 2008 surgery that resolved his right ankle disability. Thus, with the preponderance of the evidence against a finding of service connection for right ankle disability, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for residuals of a spiral fracture of the right distal fibula with right foot pain is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs