Citation Nr: 1421817 Decision Date: 05/14/14 Archive Date: 05/21/14 DOCKET NO. 09-12 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected disability. ATTORNEY FOR THE BOARD A. Santiago, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1986 to January 1990. The Veteran had service in the National Guard, to include various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This case was remanded for additional development in April 2010, November 2011, and April 2013. In November 2012, while the case was in remand status, the Appeals Management Center (AMC) granted service connection for hypertension and for hallux limitus with degenerative joint disease, left foot. As to the issue remaining on appeal, i.e., service connection for a left ankle disorder, the Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's claims file includes an electronic claims file known as the Veterans Benefits Management System (VBMS). VBMS indicates the Veteran may have appointed a representative for another claim not on appeal. Neither the paper claims file before the Board nor the electronic claims file, including VBMS and Virtual VA, contain a completed power of attorney form (POA). The Board contacted both the Newark, New Jersey, and Columbia, South Carolina, ROs, and they indicated that they do not possess a POA. Thus, the Board will consider the Veteran self-represented in this appeal. Any future change in representation is referred to the RO. FINDING OF FACT The preponderance of the evidence shows that the Veteran's left ankle disorder was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including to his service-connected left foot disability. CONCLUSION OF LAW The criteria for service connection for a left ankle disorder have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2002 & Supp. 2013); 38 U.S.C.A. §§ 3.102, 3.303, 3.307, 3.309 (2013); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)), defines VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate a claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). In this case, compliant VCAA notice was provided in June 2006 and April 2013 letters. The April 2013 letter, which includes notice as to substantiating a claim based on secondary service connection, was sent pursuant to the Board's April 2013 remand. Thus, VA's duty to notify has been met. The record also reflects that VA made reasonable efforts to obtain relevant records. In this regard, the RO obtained the Veteran's service treatment records (STRs), VA treatment records, and private treatment records. Additionally, VA provided examinations, in January 2009, September 2010, October 2012, and June 2013, addressing the Veteran's left ankle disorder. The examinations, taken in combination, are adequate for adjudicative purposes. The VA examiner, who performed all of the ankle examinations, reviewed the Veteran's claims file and subjective complaints, recorded pertinent clinical findings, and rendered definitive, objective opinions and diagnoses. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). In the latest remand in April 2013, the Board was satisfied that there was substantial compliance with its directives in the two previous remands. Regarding the April 2013 remand directives, the Board is also satisfied that there was substantial compliance as the RO sent the Veteran notice regarding secondary service connection for his left ankle disorder. Also, the RO afforded the Veteran the June 2013 VA ankle examination and issued a July 2013 supplemental statement of the case pursuant to the April 2013 remand directives. See Stegall, 11 Vet. App. at 268. The duties to notify and to assist have been fulfilled, and there is no additional evidence that needs to be obtained prior to the rendering a decision. II. Service Connection Claim Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In addition, a disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310. The United States Court of Appeals for Veterans Claims (Court) held that the term "disability" as used in 38 U.S.C.A. § 1110 should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). The regulation was amended during the pendency of the claim. As the prior version of section 3.310 is more favorable to the Veteran, it will be applied. See 38 C.F.R. § 3.310 (2006). The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that his left ankle disorder is a direct result of the stresses and physical demands of the military. He has also contended that he has a great toe pain condition which causes him to alter his gait which resulted in the development of his ankle pain in 2004. As mentioned above, in November 2012, the AMC granted service connection for hypertension and hallux limitus with degenerative joint disease, left foot. The June 2013 VA examiner reported that the Veteran has current diagnoses of left ankle degenerative joint disease and left ankle sprain. The VA examiner also reported that the Veteran stated there was no specific trauma to his left ankle and that the Veteran thinks his ankle condition is from his altered gain from his foot condition. The examiner noted that the Veteran had great toe pain and discomfort, but regarding the left ankle condition, the Veteran did not have problems with repetitive use, incapacitating episodes, flare-ups, history of physical therapy, surgery, or dislocations. Furthermore, while the examiner acknowledged that repeat x-rays keep on showing what appears to be an old avulsion fracture of the medial malleolus, he did not see any evidence of any ankle trauma that would cause a medial malleolus avulsion fracture. The Veteran himself stated that there was no trauma to his left ankle. Although the examiner noted x-rays showing moderate osteoarthrosis of the Veteran's left ankle joint, he stated that he did not see any evidence of any injuries that would cause accelerated osteoarthritis. While the Veteran has a current diagnosis of a left ankle disorder, the evidence of record does not show in-service incurrence of a left ankle injury or disease. The Veteran stated that his left ankle problems started in 2004, over 10 years after his separation from service. Additionally, the competent medical evidence does not relate the Veteran's current left ankle disorder to service. Therefore, as the evidence does not show in-service incurrence, evidence of continuity of symptomatology from the time of service to the present of a left ankle disorder, or that arthritis manifested to a compensable degree within a year of separation, service connection on a direct basis must be denied. Turning to secondary service connection, which is the primary theory of entitlement, the Veteran contends that his current left ankle disorder was caused by his service-connected left foot disability involving his great toe. In an August 2006 statement, the Veteran argued that because of experiencing excruciating pain in his big toe, he walked unbalanced which resulted in his ankle pain. The VA examiner considered the Veteran's theory of secondary service connection. The examiner opined in June 2013 that if the Veteran's great toe was hurting, then "the alteration in his gait would actually put less stress on the ankle joint due to the fact that he would be putting less weight on the left foot thus less stress on the left ankle." The examiner stated that a gait alteration due to the left great toe pain would actually cause less acceleration in degenerative joint disease and would probably cause the Veteran to be more protective of the left ankle joint. While the Veteran believes that he suffers from a current left ankle disorder as a result of his service-connected left foot disability, the Veteran has not shown that he has specialized training sufficient to render a competent opinion on the matter, as such matter requires medical expertise in this case due to its complex nature. Accordingly, his opinion as to the etiology of his left ankle disorder is not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the VA examiner's competent and credible medical opinion to be of greater probative value than the Veteran's lay contentions. The examiner, who examined the Veteran multiple times and reviewed the Veteran's claims file, concluded not only that the Veteran's service-connected left foot disability and any resulting gait alteration would put less stress on the left ankle joint, but also that any gait alteration would probably provide protection to the left ankle joint. Thus, the expert opinion indicates that the Veteran's theory has the opposite effect of what is contended. Therefore, the Board finds that the preponderance of the evidence shows that the Veteran's left ankle disorder is not a disability proximately due to the service-connected left foot disability (directly caused or aggravated by); thus, service connection for the left ankle disorder on a secondary basis must be denied. In reaching the above conclusions, the Board considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a left ankle disorder is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs