Citation Nr: 1628401 Decision Date: 07/15/16 Archive Date: 07/28/16 DOCKET NO. 10-31 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied the Veteran's claim for service connection for a left ankle disability. A hearing was held in April 2013, in Waco, Texas, before the undersigned Veterans Law Judge (VLJ), who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. In April 2014 and October 2015, the Board remanded the left ankle issue for further development. The issue of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT There are no current residuals of left ankle sprain during service; arthritis of the left ankle was not manifest during service, or within a year after discharge from service, and the medical evidence of record does not show that any current left ankle condition is related to any disease or injury incurred in or aggravated by service. CONCLUSION OF LAW The criteria for service connection for a left ankle disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2015). In this case, VA satisfied its duty to notify by means of a letter dated in July 2009 from the RO to the Veteran, which was issued prior to the RO decision in September 2009. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Veteran has been afforded VA examinations on the issue decided herein in December 2012 and December 2015. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations afforded the Veteran, taken together, were adequate. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). They were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and examined the Veteran. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran. No useful purpose would be served in remanding the question addressed herein for yet more development. II. Service Connection- Left Ankle Legal Framework Service connection may be awarded for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Indeed, even when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person 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), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Evidence The Veteran contends that he suffers from a current left ankle disability which was caused by an incident in service where he twisted his left ankle, resulting in a left ankle sprain, in 1971. Service treatment records noted that in May 1971 the Veteran was evaluated at the dispensary for twisted left ankle of one-day duration and was noted to have a swollen tender deltoid ligament. Report of medical history in November 1971 noted foot trouble specific to left ankle and evidenced left ankle sprain in the Army, and pain resolved. A March 2009 VA podiatry record noted the Veteran's complaint of left ankle pain. Pain to the posterior tibial tendon of the left foot was demonstrated on physical examination. The assessment was posterior tibial tendonitis, left. On a VA examination of the Veteran's left ankle in December 2012, the examiner noted that a left ankle sprain was not found during the December 2012 examination and that imaging studies showed no abnormal findings and demonstrated that bones and soft tissues were within normal limits. The examination report stated that a left ankle condition was not found on current examination, and that the Veteran had normal range of motion with subjective pain and normal current left ankle X-rays. While the December 2012 X-ray report of the left ankle states that no fracture or dislocations were demonstrated and the bones and soft tissues were within normal limits, the Board notes that the December 2012 x-ray report for the left foot, mentioned in a separate VA examination, states that atherosclerotic calcifications were demonstrated posterior to the ankle on the lateral radiograph. As this finding was not discussed in the ankle examination report, it was unclear whether it was considered in the context of the left ankle opinion. Pursuant to the Board's October 2015 remand, another VA examination was conducted in December 2015. The Veteran reported that he is continuing to have pain and swelling in his left ankle exacerbated with weather changes and extended periods of standing and walking. The Veteran described the pain as radiating from his left heel proximally to the ankle. He reported he twisted his ankle on multiple locations since his discharge from the service. X-rays showed no acute abnormality of the left ankle. There was minor calcaneal enthesophyte at the Achilles tendon insertion site. The examiner noted arthritis of the left ankle. The examiner opined that the Veteran's current left ankle condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that: [T]he Veteran's current condition is a new and separate condition and not related to the in-service condition [left ankle sprain involving the deltoid ligament] which is a temporary condition and not an ongoing chronic condition as it did RESOLVE as documented in the medical history prior to discharge from the service in 1971, the medical evidence reviewed does not suggest a nexus linking the Veteran's current condition to military service, therefore the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. Veteran's current condition is described as heel pain radiating proximally to the ankle and this is consistent with a calcaneal spur attached to the Achilles tendon [confirmed by recent ankle X-ray] resulting in inflammation or irritation manifesting as a recurring tendinitis. The current condition [left calcaneal spur] is not related to military service. A sprain, also known as a torn ligament, is damage to one or more ligaments in a joint, often caused by trauma or the joint being taken beyond its functional range of motion. The severity of sprain ranges from a minor injury which resolves in a few days to a major rupture of one or more ligaments requiring surgical fixation and a period of immobilisation. Sprains can occur in any joint but are most common in the ankle and wrist. . . VA treatment records reviewed between May 2009 to present, there is no documentation of a left ankle condition or disability during this period, therefore a left ankle disability or diagnosis is not identified, therefore the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness... The December 2012 radiological report of left foot x-rays noting the presence of atherosclerotic calcifications posterior to the ankle is a condition due to calcium deposits in in arterial vessels strongly associated with arteriosclerotic disease and therefore not related to bone, ligament or soft tissue conditions in the ankle. The March 2009 VA podiatry assessment of posterior tibial tendinitis on the left foot is consistent with inflammation or irritation of the tendon usually caused by or aggravated by physical activity. Symptoms include swelling and pain that worsens with activity. This condition is not related to military service due to the length of time between the in-service condition and the current claimed ankle condition and is well beyond the presumptive period. Current examination and imaging study is consistent with tibial tendinitis associated with calcaneal spur, not related to military service. The Veteran reports he twisted on multiple occasions his ankle since discharge from military service which could be attributed to his 40+ years of employment/part-time employment. Left ankle sprain involving deltoid ligament occurred inservice May 1971. Left posterior tibial tendinitis diagnosed March 2009, was not related to military service. Left calcaneal heel spur seen on X-ray December 2015, is not related to military service. Atherosclerotic calcifications seen on left ankle X-ray posteriorly is due to calcium deposition in the arterial vessels, not related to military service. The examiner concluded by stating that "the Veteran's in-service left ankle condition documented May 1971 reported swollen tender deltoid ligament is a temporary condition diagnosed as left ankle sprain which resolved as documented in November 1971 report of medical history. This condition does not result in permanent disability or lameness. The majority of current medical evidence documented in the medical literature suggest Ankle sprain recovery time can vary from 2 weeks to 6 months depending on how serious the injury is." Analysis During service in 1971, the Veteran was treated for left ankle pain with swelling. At the time of separation from service in November 1971 the pain was noted to have resolved. The Veteran contends that he has continued to have left ankle symptoms. The Veteran is competent to report symptomatology, such as ankle pain, that he experiences. However he is not competent to diagnose the condition or to state whether any particular currently diagnosed left ankle pathology is related to an inservice cause. Jandreau, supra. The VA examiner in December 2012 found essentially a normal left ankle on examination, and found that no left ankle disability was caused by or the result of the Veteran's service. The December 2015 VA examiner opined that the claimed ankle condition was less likely than not related to the inservice complaints. The examiner specifically found that the inservice left ankle sprain had resolved in service; that left posterior tibial tendinitis diagnosed March 2009 was not related to military service; that left calcaneal heel spur seen on X-ray December 2015 is not related to military service; and that atherosclerotic calcifications seen on left ankle X-ray posteriorly is due to calcium deposition in the arterial vessels and not related to military service. There are no medical opinions of record to contradict this examiner's conclusions. As arthritis was not demonstrated during the first postservice year, service connection for arthritis on a presumptive basis is not warranted. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The only competent medical opinion of record is that the Veteran's current left ankle conditions are not related to an inservice cause. The preponderance of the evidence is against the Veteran's claim for service connection for a left ankle disability. There is no doubt to be resolved; and service connection is not warranted. ORDER Service connection for a left ankle disability is denied. REMAND The Board's October 2015 remand noted that when a Notice of Disagreement (NOD) has been filed with regard to an issue, and a Statement of the Case (SOC) has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran filed an NOD with the Waco RO's March 2015 rating decision denying service connection for peripheral neuropathy of the bilateral lower extremities. In October 2015, the Board remanded the issue for the issuance of an SOC and to give the Veteran the opportunity to complete an appeal. See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26; Manlincon v. West, 12 Vet. App. 238 (1999). Review of the record does not demonstrate that such SOC has been issued. The Board has an obligation to "insure [the RO's] compliance" with the terms of its remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board finds that a SOC has not been issued on the matter of service connection for peripheral neuropathy of the bilateral lower extremities, and a remand is in order to correct the deficiency. Manlincon; Stegall. Accordingly, the case is REMANDED for the following action: After conducting any additional development deemed necessary, readjudicate the claim for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, and issue a Statement of the Case addressing the issue. The Veteran requested de novo review by a Decision Review Officer on an April 2015 selection form. The appellant should be provided the opportunity to perfect a timely substantive appeal (VA Form 9) with respect this issue. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs