Citation Nr: 1628593	
Decision Date: 07/18/16    Archive Date: 07/28/16

DOCKET NO.  03-37 051	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to service connection for a left ankle disability, claimed as gouty arthritis. 


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Bonnie Yoon, Associate Counsel






INTRODUCTION

The Veteran served on active duty from July 1974 to October 1993. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2006 rating decision of the Los Angeles, California Regional Office (RO) of the Department of Veterans Affairs (VA).

In March 2014, the Board remanded the issue for further development.  It has now been returned to the Board for further appellate review.

The Board has reviewed the Veteran's electronic claims file maintained in the Veterans Benefits Management System (VBMS) and the records in the Virtual VA system to ensure total review of the evidence.


FINDING OF FACT

The preponderance of the evidence is against a finding that a left ankle disability, diagnosed as gouty arthritis, is related to the Veteran's military service or manifested to a compensable degree within one year from separation from service.


CONCLUSION OF LAW

The criteria for service connection for a left ankle disability are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).






REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

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); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Adequate notice was provided in December 2005, and in a subsequent November 2006 letter which addressed disability ratings and effective dates.  The claim was readjudicated in supplemental statements of the case (SSOC) dated in January 2008, August 2009, July 2013, and January 2016.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant notification followed by readjudication of the claim, such as an SSOC, is sufficient to cure a timing defect).

The Veteran's service treatment records and VA medical treatment records have been obtained.  The Veteran has not identified any outstanding private treatment records.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159(c)(2). 

A VA examination was obtained in September 2012.  38 C.F.R. § 3.159(c)(4).  The VA examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations.  Pursuant to the Board's March 2014 remand, a medical opinion was obtained in November 2015.  The opinion was provided by the September 2012 VA examiner, who reviewed the evidence and offered an appropriate opinion consistent with the remainder of the evidence of record.  The Board, therefore, concludes that this examination and opinion are adequate for purposes of rendering a decision in the instant appeal.  The Veteran and his representative have not contended otherwise.

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).

Service Connection

Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.306.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

In order to establish service connection on a direct basis, the record must contain: (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). 

Some chronic diseases, including arthritis, may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period.  38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a).  For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011).  A layperson is generally not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

The Veteran is seeking service connection for a left ankle disability.  Service treatment records show that in January 1979, the Veteran was treated for complaints of a left ankle sprain, which he incurred after tripping 24 hours ago. He was assessed as having an ankle sprain.  In February 1979, the Veteran was still having problems with his left ankle sprain, but was noted as having a normal examination.  Later that same month, the Veteran was seen again, complaining of chronic left ankle pain.  The Veteran indicated he injured his left ankle playing volleyball, by jumping and landing with his toes down, hyperextending his ankle.  He was assessed as having left ankle pain "resolving?"  During November 1977, February 1980, January 1981, May 1986, April 1987, and June 1988 reenlistment reports of medical examinations, the Veteran's feet and lower extremities were found to be normal.    

Post-service medical records include a March 1994 VA general medical examination report, the report of which did not note any left ankle complaints.  During VA treatment for osteoarthritis in the knees in December 1995, it was noted that the Veteran had no ankle pain.  The first indication of left ankle problems was in April 2000, when the Veteran sought VA treatment for complaints of swelling in the left ankle and great toe.  A December 2004 mental health evaluation report indicated swelling in both ankles.  A December podiatry note indicated "left ankle/foot pain, most likely neuropathy."  VA treatment reports from January 2005, May 2005, and June 2005 note complaints of bilateral ankle pain and an assessment of bilateral ankle pain.  In July 2005, the Veteran was assessed with ankle pain, with acute gout attack.  A July 2005 VA Persian Gulf Exam noted a diagnosis of arthritis in the ankles.  In December 2005, VA treatment records noted a diagnosis of gouty arthritis.  March 2006 VA records showed a diagnosis of bilateral ankle arthritis.  In September 2006, the Veteran complained of pain in the ankles but x-rays of the left ankle were negative for osteoarthritis.

In September 2012, the Veteran underwent a VA medical examination.  The examiner diagnosed the Veteran with gout (with initial diagnosis noted in 2000).  Testing revealed that the Veteran's foot and toes were affected, but his ankles were not affected by pain attributable to arthritis.  September 2012 x-rays of both ankles revealed minimal narrowing joint spaces.  The examiner noted that "[t]he majority of the Veteran's arthritis is degenerative in nature (osteoarthritis) and not inflammatory.  The Veteran's gout (inflammatory) is noted in the feet, bilaterally."  In a June 2013 addendum, the examiner noted that the Veteran does not currently have gouty arthritis in his ankles, but has it in his feet, and that such gouty arthritis (in the feet) is less likely as not related to his military service because the Veteran separated from the service several years prior to the onset of his gout.

A November 2015 VA medical opinion was obtained from the September 2012 VA examiner.  Following review of the Veteran's VBMS claims file, the examiner opined that it was less likely than not that the Veteran's left ankle condition was incurred in or caused by service.  The rationale provided was that the Veteran's 1979 service treatment records specifically reflected treatment for a sport-related injury to the left ankle, which was not gouty arthritis and involved soft tissue only.  The Veteran's 1979 injury caused him significant pain for several weeks, but by the time he was assessed in 1980, his examination and history was silent for any chronic ankle condition.  The Veteran's June 1988 reenlistment examination was silent for any chronic ankle condition, and there were other noted complaints without any symptoms that would support gout.  Gout and gouty arthritis did not have an etiological link to a soft tissue sprain that had resolved decades prior to the onset of gout.      

Based on a review of the evidence, the Board concludes that the preponderance of the evidence of record is against service connection for a left ankle disability.

First, the Board notes that arthritis is a listed presumptive condition under 38 C.F.R. § 3.309, and so service connection under such a theory could potentially be warranted.  However, the earliest documented showing of left ankle arthritis was in July 2005, years after expiration of any potentially applicable presumptive period in this case.  38 C.F.R. § 3.307.  Therefore, service connection for arthritis on a presumptive basis under 38 C.F.R. § 3.309(a) is not warranted.

Second, although the service treatment records show the Veteran having suffered a left ankle sprain in service in 1979, the evidence fails to show that the Veteran's current left ankle arthritis is due to the in-service injury.  The Veteran's service treatment records show that during examinations subsequent to his left ankle sprain in 1979, his feet and lower extremities were found to be normal.  The sole medical opinion of record is negative, and is supported by rationale based on an accurate history and a review of the Veteran's claims file.  To the extent that the Veteran may be asserting a continuity of symptomatology following his in-service injury, such assertions are outweighed by the evidence of record.  The evidence fails to show ongoing complaints of left ankle problems.  There is no indication of left ankle problems until April 2000, almost seven years after separation from service.  While not dispositive, the passage of years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, determining the etiology of the Veteran's current left ankle gouty arthritis, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise).  The Board has considered the Veteran's contention that his left ankle gouty arthritis is due to service.  The Veteran, however, has not demonstrated that he has any medical expertise to make such an opinion.  This is not a situation where a cause and effect relationship is readily observable, such as with an explosion and tinnitus, or fractured leg.  For these same reasons, the Board finds any attempts by the Veteran to link any current left ankle arthritis to service to be beyond his competence as a lay person.

In light of the foregoing, the Board finds that service connection is not warranted for the Veteran's left ankle gouty arthritis.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection must be denied.  See Gilbert v. Derwinski, 1 Vet. App 49 (1990).


ORDER

Service connection for a left ankle disability, claimed as gouty arthritis, is denied. 




____________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs