Citation Nr: 1539535	
Decision Date: 09/15/15    Archive Date: 09/24/15

DOCKET NO.  10-31 949	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for arthritis of the right ankle.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Brandon A. Williams, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1988 to July 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In December 2013, the Board remanded this case to the RO. The case was remanded again by the Board in October 2014 for further development. A review of the claims folder reflects that the AOJ complied with the remand instructions by providing the Veteran with a VA examination in March 2015 and subsequently issuing a supplemental statement of the case (SSOC).

In April 2015, the RO issued a rating decision granting in full a service connection claim for right ankle scar. As a result, that issue is no longer on appeal.


FINDING OF FACT

The most probative evidence of record is against a finding that the Veteran's right ankle arthritis is related to active service.


CONCLUSION OF LAW

The criteria for service connection for right ankle arthritis have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154, (West 2014); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112   (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claims folder reflects the Veteran acknowledged receiving notice in April 2009.

VA has a duty to assist the Veteran in the development of the claims. The claims file includes service treatment records (STRs), VA medical records, and the statements of the Veteran in support of his claims. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain.

A VA examination was obtained in March 2015. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the Veteran has been afforded an adequate VA examination/opinion. The report includes clinical examinations, and the Veteran's reported symptoms. The report provides findings, and adequate rationales, relevant to the criteria for service connection.

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claims has been obtained.

Legal Criteria

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498   (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). 

For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id.  If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307.The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). 

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a).

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran avers that he has right ankle arthritis due to his military service. The Veteran asserts that his right ankle fracture was aggravated during his active military service. An essential element of a claim for service connection is evidence of a current disability. A March 2015 VA medical examination reflects diagnosis of degenerative arthritis of the right ankle. Thus, an essential element has been met.

The Veteran has alleged that his pre-service right ankle fracture was aggravated by his military service. 

The July 1987 entrance examination reflects that the Veteran underwent surgery to repair a right ankle fracture in 1979. The examiner noted no apparent deformities and observed that the Veteran walked well without a limp. There was a well-healed scar over the medial malleolus and distal fibula. During a May 1987 prescreening examination, the Veteran reported that his right ankle had "not caused any problems since time of injury [in 1979]." A well-healed right ankle fracture was noted at entry into service.

Generally, a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except where clear and unmistakable evidence demonstrates that the injury or disease existed prior and was not aggravated by service. 38 C.F.R. § 3.304(b) (2015).

Based on the above medical evidence and the Veteran's own statements, the Board finds that the Veteran had fractured his right ankle prior to his active service. As such, the presumption of soundness on induction does not attach, and service connection may be considered only on the basis of aggravation to his right ankle in service. 38 C.F.R. § 3.304 (2015).

The Board notes that a pre-existing injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306 (2015). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004).

The Veteran has stated that his military service aggravated his pre-existing right ankle fracture. However, the Veteran's STRs are void of any complaint or treatment in regard to his right ankle until his July 2009 separation examination, which notes pain associated with his right ankle. 

The Board notes that the Veteran is currently service-connected for right ankle sprain and right ankle Achilles tendinitis.

The Veteran was afforded a VA examination in March 2015. The examiner opined that the Veteran's current degenerative arthritis of the right ankle, is less likely than not caused or aggravated by the Veteran's military service. The examiner explained that the Veteran right ankle arthritis is a common residual of a joint fracture. The examiner further explained that the delayed onset of the arthritis and lack of edema and loss of motion upon separation supports the conclusion that the Veteran's right ankle arthritis is simply the natural residual of a right ankle fracture. This medical determination is more probative than the Veteran's assertion in regards to whether a causal nexus exists.

The Board acknowledges that the absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of appellant's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). See also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (noting that lay evidence can be competent to establish a diagnosis when . . . a layperson is competent to identify the medical condition.) 

The only clinical etiology opinion with regard to the Veteran's arthritis of the right ankle is against a finding that the Veteran's right ankle arthritis is causally related to, or was aggravated beyond its natural progression by, active service. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of the ankles for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).

The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2014), and 38 C.F.R. § 3.102 (2015), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Entitlement to service connection for arthritis of the right ankle is denied.


____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs