Citation Nr: 1603671 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 11-30 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for a headache disorder, to include as secondary to a service-connected disability. 3. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 4. Entitlement to a total disability evaluation based on individual unemployability as a result of service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active military service from July 1963 to July 1966. The Veteran also had reserve service from January 1977 to November 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In connection with this appeal, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge in November 2015. A transcript of that hearing is of record. In August 2009, the Veteran filed service connection claims for a complete right nostril anosmia, allergic rhinitis, bilateral hearing loss, a headache disorder, and a right ankle disorder. In November 2009, the Veteran filed a claim for TDIU. In July 2010, the Veteran filed a service connection claim for a psychiatric disorder. The RO subsequently granted service connection for allergic rhinitis in August 2011, complete right nostril anosmia in December 2011, and bilateral hearing loss in July 2015. These actions constitute a full grant of benefits sought with respect to the claims of service connection for complete right nostril anosmia, allergic rhinitis, and bilateral hearing loss. Thus, these matters are not currently before the Board. The issues of entitlement to service connection for a headache disorder, entitlement to service connection for an acquired psychiatric disorder, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A chronic right ankle disability was not shown in service, right ankle arthritis was not diagnosed within one year of service discharge, and the weight of the evidence fails to establish that the Veteran's current right ankle disorder is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a right ankle disorder have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), private treatment records, and VA treatment records have all been obtained. The Veteran and his wife also had the opportunity to testify at a hearing before the Board. No VA examination was requested in relation to the issue of service connection for a right ankle disorder. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor, in particular, has a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds no reasonable possibility that a VA examination would aid in substantiating the service connection claim for a right ankle disorder. See 38 U.S.C. § 5103A(a). The record does not show any evidence establishing that a right ankle disorder occurred in active service or within one year of separation from active service or evidence that this disorder may be associated with service. As such, elements (2) and (3) are absent. Therefore, as discussed in detail below, VA has no duty to provide a VA examination or obtain an opinion in this case. Moreover, the U.S. Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon, 20 Vet. App. at 81. This standard has not been met in this case, and there is sufficient competent medical evidence of record to make a decision on the claims. Essentially, beyond the Veteran's statements, no evidence is of record to suggest that the Veteran's current right ankle disorder either began during or was otherwise caused by his military service. These statements alone are insufficient to trigger VA's duty to provide an examination. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases, including arthritis, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Veteran seeks service connection for a right ankle disorder, which he contends was incurred during his active service. He filed his claim for service connection in August 2009, which was denied by the RO in May 2010. The Veteran's STRs from his active service show that at his entrance and separation examinations, he denied having arthritis or foot trouble. In addition, he had normal physical examinations. Moreover, STRs do not document any complaints or treatment for right ankle symptoms. Of note, on the medical history survey completed in conjunction with his separation physical, the Veteran specifically reported having experienced at least three medical problems including mumps and hay fever. This notation suggests that the Veteran spent time to review the medical history survey and that had he been experiencing right ankle symptoms, as he now alleges, he would have noted it on this form. The Veteran's STRs from his reserve service likewise show that in October 1980, he continued to deny having arthritis or foot trouble; he continued to have normal physical examinations; and STRs do not document any complaints or treatment for right ankle symptoms. Significantly, these denials were made fourteen years after his separation from active service. At his Board hearing in November 2015, the Veteran reported experiencing a right ankle injury in service due to jumping out of trucks and running with equipment in boots. He reported that he never went to sick call for his right ankle, but started getting medical treatment approximately one year after his separation from active service. He reported that he underwent right ankle surgery because of worsening of his symptoms. He reported that his treating physicians felt that his right ankle disorder was more likely than not related to his active duty. The Veteran was asked if any doctor had put such an opinion into writing, and he stated that he thought one had, but the Veteran's representative indicated that he had not been able to find any such document. The Board likewise has not found such an opinion. The medical records show that in February 2004, he reported having ankle pain for about six months. In July 2004, he reported having a 10 year history of ankle pain due to an injury. A February 2008 right ankle x-ray was normal. In December 2012, he underwent right ankle surgery. STRs shows that while the Veteran was seen for various health complaints, the medical evidence does not document any type of treatment or complaints of right ankle symptoms during service or within one year of separation from service. In addition, STRs show that on multiple examinations, the Veteran had normal lower extremity examinations. Furthermore, the Veteran specifically denied having arthritis or foot trouble on multiple medical history reports. The Veteran is competent, of course, to state that he experienced right ankle symptoms either in service or within a year of separation from active service. However, the credibility of such an assertion is questionable in light of the fact that he explicitly denied having any foot trouble or arthritis during his active service and during his reserve service that followed. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Moreover, and of equal import, the Veteran's treatment record shows that he reported that his right ankle pain was due to an accident that occurred approximately in 1994, well after his separation from active service. Consideration has been given to the Veteran's assertion that his right ankle disorder was incurred in or caused by his active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of a right ankle disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Ankle disorders are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations that include objective medical testing such as MRIs or x-rays are needed to properly assess and diagnose these disorders. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report perceived symptoms of a right ankle disorder, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating musculoskeletal disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Accordingly, the criteria for service connection have not been met for a right ankle disorder. Therefore, the claim is denied. ORDER Service connection for a right ankle disorder is denied. REMAND Regarding the Veteran's service connection claim for a headache disorder, at the hearing, the Veteran asserted that his headaches started just after his separation from active duty. In November 2015, the Veteran's physician Dr. Thomas R. Crow, M.D., opined that the Veteran's headaches are more likely than not related to his military service. However, Dr. Crow did not specify if his headaches were the result of active service or his reserve service. In addition, Dr. Crow felt that the Veteran's headaches were more likely than not caused by his chronic rhinorrhea and chronic nasal congestion, but provided no rationale for such a conclusion. The Veteran is service connected for allergic rhinitis. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, a medical opinion is necessary to adjudicate the service connection claim for a headache disorder. Regarding the Veteran's service connection claim for a psychiatric disorder, in a June 2011 rating decision, the RO denied service connection for a psychiatric disorder. The Veteran filed a Notice of Disagreement in July 2011 regarding the June 2011 rating decision. This notice of disagreement is still pending, and a remand is required for a statement of the case on this issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Additionally, the issue of TDIU is inextricably intertwined with the adjudication of the other remanded issues, and therefore it too will be remanded. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the etiology of his headache disorder. The Veteran's claims file should be provided. The examiner should diagnose any current headache disorder and then should address the following questions: a) Is it at least as likely as not (50 percent or greater) that a headache disorder either began during or was otherwise caused by the Veteran's active military service (from July 1963 to July 1966; symptoms experienced during periods of reserve service from January 1977 to November 1982 are not to be considered to have been experienced "in-service") . b) Is it at least as likely as not (50 percent or greater probability) that a headache disorder was aggravated (permanently increased in severity beyond the natural progress of the disorder) by his service-connected disabilities, specifically the Veteran's service-connected allergic rhinitis? Why or why not? If aggravation is found, a baseline severity of the headache disorder should be established prior to the aggravation occurring. The examiner should specifically address the November 2015 statement from Dr. Crow suggesting that the Veteran's headaches may be related to his service or his allergic rhinitis. 2. Adjudicate the issue of service connection for a psychiatric disorder; if the benefits sought cannot be granted, issue a statement of the case in accordance with applicable law and regulations. The Veteran and his representative should be informed of the period of time within which he must file a substantive appeal to perfect his appeal to the Board concerning this issue. If a timely substantive appeal is not filed, the claim should not be certified to the Board. If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate 3. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs