Citation Nr: 1621984 Decision Date: 06/01/16 Archive Date: 06/13/16 DOCKET NO. 13-19 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral foot disability. 3. Entitlement to service connection for a right ankle disability, to include instability with recurrent sprains and degenerative joint disease (DJD). 4. Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from March 1985 to January 1996, with additional service in the Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the Portland, Oregon, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran requested a Board hearing in his July 2013 substantive appeal. However, he later withdrew the request in correspondence received in April 2014. During the course of the Veteran's appeal, service connection for bilateral hearing loss and tinnitus was granted in a February 2016 rating decision. As the Veteran has, as yet, not appealed either the evaluations or effective dates assigned to these disabilities, the matters are not before the Board. See Grantham v. Brown, 114 F. 3d 1156 (Fed. Cir. 1997). FINDINGS OF FACT 1. The Veteran has not had a low back disability at any time during the appeal period. 2. Any current bilateral foot disability did not have its onset in service and has not been etiologically linked to the Veteran's service or any incident therein. 3. Resolving all doubt in the Veteran's favor, right ankle instability with recurrent sprains and DJD, is a result of an injury in service. 4. The Veteran has not had a left ankle disability at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 3. The criteria for service connection for a right ankle disability, including instability with recurrent sprains and DJD, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 4. The criteria for service connection for a left 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 FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). A standard June 2009 letter satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). The Board acknowledges that VA was unable to obtain non-dental service treatment records for the period the Veteran served from March 1985 to January 1996. Where service records have been lost or destroyed through no fault of the veteran, there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis in this case has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind. Case law does not lower the legal standard for proving a service connection claim, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Service treatment records from the Veteran's service in the National Army Guard, dating from February 1997, have been obtained. In correspondence received in May 2009, the Veteran indicated that he had no private treatment records, nor has he identified any outstanding treatment records pertinent to the appeal. In January 2016 the Veteran was provided a VA examination to determine the nature and etiology of his low back, bilateral foot, and right and left ankle disabilities. The examination, along with the medical opinions, are sufficient evidence for deciding the claims and are adequate as they are based upon consideration of the Veteran's medical history and examinations, describe the disabilities in sufficient detail so that the Board's evaluations are fully informed, and contain reasoned explanations for the opinions provided. Thus, VA's duty to assist has been met with regard to his claims for service connection. II. Legal Criteria and Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). "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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted if a disability is proximately due to or the result of a service-connected disability or if aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2015). Service connection may be awarded for a disability if the claimant had the disability at the time the claim was filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Low Back Disability The Veteran contends that he has a current low back disability that was first incurred in service. He asserts that his current back pain is a result of the strenuous exercise and heavy load bearing he underwent for years in the service. The Veteran's periodic examinations for the Army National Guard repeatedly show no relevant complaints and that clinical evaluation of the spine was normal. The January 2016 VA examination report shows that the Veteran reported that he did not recall any low back injuries in service, but did land on his "butt" when sliding down a rope once. He believed that years of running and ruck marching in service caused his current low back pain and soreness. He reported that his back pain began in 2006 or 2007. He did not seek medical treatment for his back pain. The January 2016 VA examiner, while noting the Veteran had low back symptoms, found no current clinical objective evidence of disease or pathology associated with the symptoms. The examiner further noted that the Veteran reported that his chronic back symptoms began approximately 10 years after his 1996 separation from active duty. The examiner determined that there was no diagnosed low back disability. There is no medical or lay evidence that the Veteran currently suffers from a low back disability beyond his mere complaints of pain and soreness, and pain alone is not a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). As the evidence of record does not show any objective pathology of the low back, or any diagnosed low back disability, the preponderance of the evidence is against the claim for service connection for a low back disability. There is no doubt to be resolved; and service connection is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Bilateral Foot Disability The Veteran contends that he has a current bilateral foot disability that was first incurred in service. He asserts that his current bilateral foot disability is a result of the strenuous exercise and heavy load bearing he underwent for years in service. The Veteran's periodic examinations for the Army National Guard repeatedly show no relevant complaints and that clinical evaluation of the feet was normal. The January 2016 VA examination report shows the Veteran reported that his foot symptoms began approximately 10 years after his 1996 discharge from service. The VA examiner opined that it was less likely than not that the Veteran's diagnosed bilateral foot strain had its onset in service or was caused by his service. The examiner further opined that the Veteran's history and the evidence of record were insufficient to establish an etiological nexus between his active duty service and his current bilateral foot disability. Evidence of record shows that there was no diagnosis of a bilateral foot disability in service. Indeed, the first report of a bilateral foot disability was in the Veteran's written statement received in May 2009, 13 years after his separation from service. During the January 2016 VAX, the Veteran reported that his bilateral foot symptoms did not begin until approximately 2006, 10 years after his discharge. To the extent that the lay statements from the Veteran address the etiology of his current bilateral foot disability, the Board finds that the statements are not competent evidence, as the Veteran is not shown to have specialized medical education, training, or experience necessary to provide a competent medical opinion as to the nature and etiology of his claimed bilateral foot disability. Determining the etiology of a bilateral foot disability is medically complex in nature. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The most probative evidence of record, the January 2016 VA examiner's opinion, does not etiologically link the Veteran's currently diagnosed bilateral foot strain to his service, or any incident therein. In fact, the January 2016 VA examiner opined that it was less likely as not that the Veteran's bilateral foot disability was incurred in or caused by his service. The physician who provided January 2016 VA opinion provided a fully adequate rationale for his opinion, noting that the symptoms did not begin until 10 years after his discharge from service and that the Veteran's reported history was insufficient to establish a nexus between his active duty service and the current bilateral foot disability. The VA examiner further noted that there was insufficient evidence of record to establish an etiological link to service. Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection for a bilateral foot disability. There is no doubt to be resolved, and service connection for a bilateral foot disability is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Right Ankle Disability The Veteran contends that he has a current right ankle disability as a result of a significant injury in service. He asserts that the initial injury led to more ankle injuries throughout his military service. The January 2016 VA examiner noted the Veteran's history of a severe right ankle sprain during service and a current diagnosis of right ankle instability with recurrent sprains and DJD. Although the examiner was unable to opine as to whether the Veteran's right ankle instability, recurrent sprains and DJD was incurred in or caused by service without resorting to speculation, he noted that current X-ray studies showed evidence of a severe sprain or sprains in the past which most likely caused the DJD because this was a strong risk factor for DJD and there is no evidence of such in his left ankle. The Board finds that the Veteran has provided competent and credible statements describing his right ankle injury in service and subsequent symptoms since service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board further finds that the evidence as to whether his current right ankle disability, diagnosed as instability with recurrent sprains and DJD, was incurred in service is at least in equipoise given the current X-ray evidence of DJD and the examiner's observation that prior sprains were a strong risk factor for DJD. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Since the evidence is in equipoise, reasonable doubt is resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). Accordingly, entitlement to service connection for a right ankle disability, to include instability with recurrent sprains and DJD, is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Left Ankle Disability The Veteran contends that he has a current left ankle disability as a result of continuous strenuous exercise in service. Alternatively, he asserts that he developed a left ankle disability because he overcompensated with his left ankle after he injured his right ankle in service. The Veteran's periodic examinations for the Army National Guard repeatedly show no relevant complaints and that clinical evaluation of the lower extremities was normal. The January 2016 VA examination report shows that X-ray studies of the left ankle were normal, as was a physical examination of the left ankle. The VA examiner found, that while there were left ankle symptoms, there was no current clinical objective evidence of disease or pathology associated with these symptoms. There is no medical or lay evidence that the Veteran currently suffers from a left ankle disability beyond his mere complaints of pain, and pain alone is not a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). As the evidence of record does not show any objective pathology of the left ankle, or any diagnosed left ankle disability, the preponderance of the evidence is against the claim for service connection for a left ankle disability. There is no doubt to be resolved; and service connection is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a low back disability is denied. Service connection for a bilateral foot disability is denied. Service connection for a right ankle disability, including instability with recurrent sprains and DJD, is granted. Service connection for a left ankle disability is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs