Citation Nr: 1512474 Decision Date: 03/24/15 Archive Date: 04/01/15 DOCKET NO. 13-08 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for a disorder manifested by near-syncope and dizziness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) San Juan, Puerto Rico Regional Office (RO). The Virtual VA claims file has been reviewed. Other than the informal hearing presentation and VA medical records considered in the February 2013 Supplemental Statement of the Case, documents contained therein are duplicative of those in the paper claims file. There are no documents pertaining to the Veteran in the Veterans Benefits Management System. FINDINGS OF FACT 1. A right ankle disorder was not manifest in service or within one year of separation. A right ankle disorder is not attributable to service. 2. A disorder manifested by near-syncope and dizziness was not manifest in service and is not attributable to service. CONCLUSIONS OF LAW 1. A right ankle disorder was not incurred in or aggravated by service, and cannot be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014). 2. A disorder manifested by near-syncope and dizziness was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in July 2012 and August 2012, to the Veteran. These letters explained the evidence needed to substantiate a claim for service connection, as well the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 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). The claims file contains the Veteran's available service treatment records, reports of post-service treatment, and the Veteran's own statements in support of his claims. The Veteran was afforded VA examinations responsive to the claims for service connection. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were conducted by medical professionals, following thorough examinations of the Veteran, solicitation of history, and review of the claims file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2014). To establish a right to compensation for a present disability, a Veteran 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 arthritis is a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Based on the evidence of record, the Veteran's claims of service connection for a right ankle disorder and a disorder manifested by near-syncope and dizziness must be denied. The Board acknowledges that the Veteran was treated for complaints of dizziness in October 1967; physical examination at that time was unremarkable, other than sinus congestion. In January 1969, the Veteran complained of vague dizziness without specific symptoms. The examining provider found no abnormalities upon examination and suggested that the Veteran was attempting to manipulate medical personnel to get out of having to work; the assessment was personality disorder. The Board also acknowledges that the Veteran was treated in March 1969 for complaints of right ankle pain and a swollen right foot; x-rays were negative and the assessment was possible torn ligaments. An x-ray was right ankle sprain and the Veteran was given a profile. The Board observes that although the Veteran reported experiencing swollen or painful joints and dizziness at separation in April 1969, the examining physician noted that the Veteran's right ankle sprain approximately 2 months earlier was well-healed and without sequelae, and that the Veteran had a syncopal episode approximately 6 months earlier, but that a complete work-up was normal. Additionally, the April 1969 separation examination report indicates that evaluation of the Veteran's feet, lower extremities, and musculoskeletal system were normal, and that a neurological evaluation was also normal. Nonetheless, there is no evidence of a right ankle disorder or a disorder manifested by near-syncope and dizziness in the years after service. The Board observes that the Veteran did not make any relevant complaints and there was no pertinent symptomatology regarding the near-syncope and dizziness at the March 2008 and April 2008 VA examinations. Although the Veteran reported at the April 2008 VA general medical examination that his osteoarthritis had onset in 1963 related to a fall, which the Veteran claimed caused trauma to the whole body, at the March 2008 VA examination, he reported that he had problems with osteoarthritis of his hands and knees related to a "fall over his back" when he was 14. In short, the evidence fails to establish the presence of the arthritic pathology during service or characteristic manifestations sufficient to identify the arthritic disease process during service or for many years thereafter. 38 C.F.R. § 3.303(b). The Veteran is competent to report that he has a right ankle disorder and a disorder manifested by near-syncope and dizziness. He is also competent to report when his symptoms were first identified. However, his statements, even if accepted as credible, do not establish a nexus to his service for these disorders. The weight of the evidence reflects that the Veteran's a right ankle disorder and a disorder manifested by near-syncope are unrelated to his service. In this regard, the August 2012 VA examiners found that that the Veteran's right ankle disorder and disorder manifested by near-syncope are unrelated to the Veteran's service. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran's service and the disability). Significantly, the August 2012 VA neurological examination report reflects that the Veteran has been diagnosed with near-syncope after a syncopal episode in February 2006, but that it was less likely than not that the Veteran's syncopal episode was related to the Veteran's episodes of dizziness in service. The VA examiner noted that the separation examination report reflects that a complete work-up was normal, and that the Veteran's more recent complaints were due to orthostatic intolerance, which began in 2006; the VA examiner pointed out that there is no evidence that he had any syncopal episodes in the intervening years. Likewise, the Board points out that the August 2012 VA joints examination report indicates that x-rays and physical examination of the right ankle did not show any evidence of arthritis; on x-ray there was a small posterior calcaneal enthesophtye and plantar calcaneal spur. The VA examiner found that the Veteran's claimed right ankle sprain was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted that the physical examination of the ankle joint was normal, and that the absence of pathology upon x-ray at the time of the right ankle sprain in service indicates that it was an isolated injury without sequelae. The VA examiner also noted that the Veteran was treated for right ankle pain in February 2012, but that full recovery was achieved. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). To the extent that there are lay opinions, including those of the Veteran, linking the Veteran's right ankle disorder and disorder manifested by near-syncope and dizziness to an in-service event, injury, or illness, the Board finds that the probative value of the general lay assertions are outweighed by the specific, reasoned opinion of the August 2012 VA examination reports and the clinical evidence of record. The aforementioned VA examiners, in determining that the Veteran's right ankle disorder and disorder manifested by near-syncope and dizziness are unrelated to his service, are entitled to greater probative weight than the more general lay assertions of the Veteran, even assuming those lay assertions were competent. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Here, there is positive and negative evidence. Nonetheless, the most probative and credible evidence, the VA examination reports, establishes that the Veteran's right ankle disorder and disorder manifested by near-syncope and dizziness are unrelated to service. In this regard, the Board points out that the Veteran did not associate his right ankle disorder and disorder manifested by near-syncope and dizziness with his service except as related to his claims for benefits. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). Additionally, the Board notes that the opinions of the VA examiners are consistent with the medical evidence of record, which does not demonstrate that his right ankle disorder and disorder manifested by near-syncope and dizziness are related to service. The VA examiners explained the reasons for their conclusions based on an accurate characterization of the evidence of record; thus, these opinions are highly probative. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). In sum, there is no reliable evidence linking the Veteran's right ankle disorder and disorder manifested by near-syncope and dizziness to his service. For the foregoing reasons, the preponderance of the evidence is against the claims for service connection for a right ankle disorder and a disorder manifested by near-syncope and dizziness. The benefit-of-the-doubt doctrine is therefore not for application, and the claims must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Service connection for a right ankle disorder is denied. Service connection for a disorder manifested by near-syncope and dizziness is denied. ____________________________________________ SONJA A. MISHALANIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs