Citation Nr: 1538760 Decision Date: 09/10/15 Archive Date: 09/18/15 DOCKET NO. 09-16 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for bilateral ankle disability, specifically bilateral ankle sprain. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1974 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The case was previously before the Board in August 2012 at which time it was reopened and remanded for further development. The case was also before the Board in August 2014 and remanded to obtain additional records. The case now returns for final appellate review. This appeal was processed using the Veteran Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDING OF FACT At no time since or contemporaneous to the filing of the claim has the Veteran had a bilateral ankle sprain disability. CONCLUSION OF LAW The criteria for service connection for a bilateral ankle disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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. VA issued VCAA notice to the Veteran in the form of a March 2008 letter which informed him of the evidence generally needed to support the claim on appeal. This notice included information regarding what actions he needed to undertake and how VA would assist him in developing his claim. The VCAA notice letter was also issued to the Veteran prior to the rating decision from which the instant appeal arises; therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA or identified by the Veteran. The Veteran's service treatment records, VA medical records, and any available private medical records have all been obtained. The Veteran identified some private medical records as relating to a back condition that had been destroyed but there is no indication that these records related to the Veteran's ankle condition. Indeed, the records pre-dated the Veteran's October 1993 statement that he had not sought medical treatment for his ankles since service. See October 1993 Hearing Transcript, page 8. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. In addition, the Veteran was afforded two VA medical examinations for the disability on appeal, most recently in October 2012. The Board finds that the examinations are adequate in order to evaluate the Veteran's entitlement to service connection for a bilateral ankle disability, as they include interviews with the Veteran, a review of the record, and full physical examinations. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's claim of entitlement to service connection for a bilateral ankle disability, and no further examination is necessary. The medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history to decide the Veteran's claim. As noted in the Introduction, this matter was before the Board in August 2012 and August 2014, at which times it was remanded for further development. The Board finds that there has been substantial compliance with the remand directives with respect to the Veteran's bilateral ankle disability claim. In this regard, the Board notes the U.S. Court of Appeals for Veterans Claims (Court) has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall [Stegall v. West, 11 Vet. App. 268] violation when the examiner made the ultimate determination required by the Board's remand). Based on the foregoing, the Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the mandates of its remand with respect to the issues adjudicated in this decision. See Stegall, supra (finding that a remand by the Board confers on an appellant the right to compliance with its remand orders). In this regard, the Board notes that the August 2012 remand directed the AOJ to ask the Veteran to identify any additional treatment records, to obtain those treatment records, to provide a VA examination, and then readjudicate the Veteran's claim in a supplemental statement of the case. The AOJ asked the Veteran to identify any treatment providers who may have records relating to his bilateral ankle disability. The Veteran did not respond. The Veteran underwent a VA examination in October 2012. The VA examiner found it less likely as not that the Veteran had a chronic ankle condition or that his ankle sprains during service resulted in a chronic ankle condition caused or aggravated by service. As discussed above, the Board finds the October 2012 VA examination opinion adequate to adjudicate the Veteran's claim. The claim was readjudicated by the AOJ in a January 2013 supplemental statement of the case. In an August 2014 remand, the Board remanded the Veteran's claim for the AOJ to obtain outstanding VA treatment records. VA treatment records from February 2009 to August 2013 were obtained. The Veteran's claim was then readjudicated in a January 2015 supplemental statement of the case. Thus, the Board finds that the AOJ has substantially complied with the prior remand directives. See, Stegall, supra. In summary, no further notice or assistance to the Veteran is required for a fair adjudication of his bilateral ankle disability claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). II. Service Connection The Veteran seeks service connection for a bilateral ankle sprain disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection requires evidence establishing that the Veteran currently has the disability for which service connection is sought. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the instant case, the evidence of record is against a finding that the Veteran has a current bilateral ankle sprain disability. The Veteran's service treatment records reveal that he had problems with bilateral ankle sprains in November 1975 and January 1976. A chronic sprain with acute exacerbation of the right ankle was diagnosed in January 1976. The Veteran's lower extremities and feet were normal on separation physical evaluation in October 1977. During a February 1992 VA examination, the Veteran reported that his ankles were periodically stiff since service, made noise with motion, and occasionally were uncomfortable and ached. The examiner found that there was no effusion, redness or tenderness in the ankles. The examiner noted that the Veteran was able to dorsiflex his ankles to 10 degrees without any difficulty and plantar flex to 45 degrees without any difficulty. The examiner found that the medial and collateral ligaments of the ankle were medially and laterally intact. The x-rays were normal. The examiner therefore found that the Veteran's ankles were normal. During an October 1993 hearing, the Veteran testified that his ankles were weak and easily injured. He stated that he experienced five to six sprains per year but did not seek medical treatment after service. He testified that there was no discomfort on a normal day. Subsequently, the Veteran has reported occasional ankle pain. See October 1997 American Chiropractic Network Patient Health Questionnaire; January 2004 Black Hills Family Health Clinic Medical Records; December 2004 Hot Springs VAMC Records; December 2004 NMS Records; May 2006 Hot Springs VAMC Records; August 2008 Hot Springs VAMC Records; and December 2008 Hot Springs VAMC Records. A July 2003 clinician noted the Veteran had multiple somatic dysfunctions of the toes, feet, and ankles. The Veteran had reported foot pain after a recent injury. See July 2003 Progress Note. A December 2004 clinician noted decreased range of motion of the Veteran's left cuboid and talus. See NMS Records. A December 2004 Hot Springs VAMC clinician found the Veteran's left ankle did not have any obvious soft tissue swelling or joint effusion. The clinician noted that the Veteran could passively dorsiflex, plantar flex, and evert his ankle without any problems. The clinician noted an impression of left posterior lateral ankle pain of unknown etiology. The resulting x-rays showed that the bones, joints, and soft tissues of the left ankle were unremarkable, resulting in no diagnosis. May 2006 x-rays showed that the Veteran's bones, joints, and soft tissues of his right ankle were also unremarkable, resulting in no diagnosis. See May 2006 Hot Springs VAMC Records. In a November 2007 neurosurgical visit, the Veteran denied musculoskeletal swelling, stiffness, pain in joints, fractures, rheumatoid arthritis, or osteoporosis. See Spine Center at Rapid City Medical Records. Examination of the Veteran's lower extremities revealed full range of motion without evidence of obvious instability. No pain, tenderness, effusions, or crepitation was noted upon examination. Dorsiflexion of the ankle was normal. A separate November 2007 visit noted that the Veteran did not have ankle edema. See November 2007 Black Hills Family Health Clinic Medical Records. In December 2005, the Veteran submitted a statement from his private physician stating that the Veteran had a bilateral ankle sprain in November 1975 that became a chronic problem. The Veteran's private physician did not give an explanation for his description of the Veteran's ankle condition as chronic. No test findings were reported, and the doctor's comments were apparently based upon the Veteran's reported history. The doctor does not comment on the number of years without complaint to a medical provider, his report of self-treatment (hearing transcript of 1993, page 8) or the intercurrent injuries to the Veteran's ankles when he fell while working for the Forest Service (1993 hearing transcript, page 6). A December 2008 Hot Springs VAMC Nursing Note also shows the Veteran reported chronic bilateral ankle pain. However, the Veteran's statement did not result in the diagnosis of a chronic condition. During an October 2012 VA examination, the Veteran reported bilateral ankle pain and weakness. Upon examination, the examiner found the Veteran walked with a normal gait and strength. The examiner found no palpable tenderness of the bilateral ankles, no swelling or warmth. The examiner found, based on an examination using a goniometer and measuring three times, that the Veteran had full range of motion in his ankles. Following a review of the record, an interview with the Veteran, and a physical examination, the examiner concluded that the Veteran does not have and has never had an ankle disability. The examiner found that it is less likely as not that the Veteran has a chronic ankle condition, or that his ankle sprains during his period of service resulted in a chronic ankle condition caused or aggravated by service. Based on the foregoing, the Board finds that the Veteran does not have a bilateral ankle sprain disability subject to service connection. In reaching such conclusion, the Board finds the October 2012 VA examiner's opinion to be more probative than the private physician's 2005 description of the condition as chronic. The October 2012 VA examiner provided detailed rationale for the conclusion reached, following a thorough examination of the Veteran's medical history, as reported in the record, and an interview with the Veteran. No rationale was offered for the private physician's assessment. In addition, the October 2012 VA examiner's conclusion accords with the February 1993 VA examiner's conclusion and the Veteran's treatment records. Thus, the Board affords greater probative weight to the October 2012 VA examiner's opinion. Therefore, the Board finds that, at no point prior to, or during, the pendency of the claim, does the Veteran have a bilateral ankle sprain disability subject to service connection. To the extent that the Veteran may complain of pain and weakness, these complaints of symptoms alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (a symptom, 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; "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"); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of the claimed disability, there can be no valid claim). Furthermore, as for any direct assertions by the Veteran that the Veteran currently has a bilateral ankle disability and/or that there exists a medical relationship between any bilateral ankle disability and service, the Board finds that such assertions do not provide persuasive evidence in support of the claim. The matters of diagnosis and etiology here at issue are ones within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). While it is error to categorically reject layperson evidence as to diagnosis or etiology as incompetent, the Board may consider the facts of a particular case to determine the layperson's competence. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor to consider is the complexity of the question to be determined. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer). Here, the matters of whether the Veteran has a current bilateral ankle disability, specifically bilateral ankle sprain, and whether any current bilateral ankle disability is etiologically related to service, are not matters within the realm of knowledge of a layperson; rather, such are complex questions that require education, training, and expertise for resolution. Id. As neither the Veteran nor his representative is shown to be other than a layperson without appropriate education, training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on the complex medical matters on which this claim turns. Hence, the lay assertions in this regard have no probative value. In short, the Veteran simply cannot establish the required elements of the claim-or counter the conclusion of the VA examiner-on the basis of lay assertions, alone. Therefore, the Board finds that service connection is not warranted for a bilateral ankle sprain disability. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral ankle sprain disability is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs