Citation Nr: 1630562 Decision Date: 08/01/16 Archive Date: 08/11/16 DOCKET NO. 11-21 165A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for right ankle disability, to include arthritis. REPRESENTATION Appellant represented by: Baku N. Patel, Attorney ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction was subsequently transferred to the RO in Chicago, Illinois. In the February 2009 notice of disagreement, the Veteran requested a hearing before a Decision Review Officer, a request that he later withdrew. Instead, an informal hearing conference was held in April 2010. The Veteran withdrew the claim for service connection for a left ankle disability at the conference. In November 2014, this matter was remanded to the RO for additional development. The directed development has been completed, and the necessary medical opinions were obtained. This case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran sustained a ligamentous strain in service. 2. The Veteran's current right ankle disability did not originate in service or until years thereafter, and is not otherwise etiologically related to service including to the ligamentous strain in service. CONCLUSION OF LAW The criteria for service connection for right ankle disability, to include degenerative arthritis, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Duty to Notify and Duty to Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, required notice was provided in January 2008. Thus, adjudication of the claim at this time is warranted. All relevant evidence has been obtained with regard to the Veteran's claim being decided herein, and the duty to assist requirements have been satisfied. Service treatment records have been obtained and are associated with the file. The RO searched for VA treatment records dated from 1971 and all available treatment records are associated with the file; VA treatment records dated from 1997 to 2013 are associated with the claims file. Social Security Administration records are associated with the claims file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. In February 2008, the Veteran indicated that he had no additional evidence or information to submit in support of his claim. VA provided a VA examination in May 2010 and medical opinions were obtained as to the nature and likely etiology of the claimed disability in May 2011 and December 2014. The Board finds that the VA examinations and medical opinions are adequate for adjudication purposes. The examinations were performed by medical professionals and based on a review of claims file, a solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The VA examiners provided medical opinions as to the nature and etiology of the claimed disability. The Board finds that for these reasons, the Veteran has been afforded an adequate examination. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 2. Service Connection: Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Arthritis is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a disease noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from 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 U.S.C.A. §§ 1101, 1112, 1113; 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. Id. 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 veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 3. Service Connection Analysis The Veteran contends that he injured his right ankle in active service while he was playing basketball and since then his right ankle has been painful. See the May 2010 VA examination report. Based upon a review of all the lay and medical evidence, the Board finds the weight of the competent and credible evidence shows that the current right ankle disability to include arthritis first manifested many years after service separation and is not related to injury or event in active service. Service treatment records show that the Veteran injured his right ankle in active service in April 1971 when playing basketball. X-ray examination of the right ankle was normal with no evidence of fracture or dislocation. The diagnosis was ligamentous strain. The right ankle was placed in a cast. The service treatment records do not show any medical treatment for the right ankle after April 1971. Separation examination was conducted in February 1971 prior to the right ankle injury. On separation exam, the Veteran denied having swollen or painful joints; arthritis or rheumatism; or bone, joint or other abnormalities. Physical examination of the lower extremities was normal. In a May 26, 1971 statement, the Veteran indicated that there was no change in his medical condition since the separation examination in February 1971. He separated from active service on May 27, 1971. There is no competent evidence of record showing a diagnosis of right ankle arthritis compensable to 10 percent within one year from service separation. The first evidence suggestive of arthritis was the February 2008 VA bone scan which showed findings compatible with arthritis in the ankles. The first x-ray evidence of arthritis in the ankles was upon VA examination in May 2010, over 30 years after service separation. Thus, presumptive service connection for right ankle arthritis pursuant to 38 C.F.R. § 3.307(a) is not warranted. With respect to negative evidence, the fact that there were no records of any complaints, treatment, or diagnosis of a right ankle disability for over 30 years after service separation weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of right ankle complaints, symptoms, or findings for over three decades between the period of active service and manifestation of the right ankle disability is itself evidence which tends to show that this disease did not have its onset in service or for years thereafter. The Board also finds that the weight of the competent and credible evidence shows that the Veteran did not experience chronic and continuous symptoms of a right ankle disability either during active service or continuously since service separation. The Veteran contends that he has had right ankle pain since the injury in active service. See the May 2010 VA examination report. The Veteran, as a lay person, is competent to describe observable symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, in adjudicating this claim, the Board must assess not only competency of the Veteran's statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Board finds that the Veteran's credibility is undermined by the fact that his own statements concerning the right ankle symptoms are inconsistent. The service treatment records do not document chronic or recurrent right ankle symptoms. As discussed in detail above, the Veteran sustained an injury to the right ankle in active service in April 1971 and he sought medical treatment. However, the service treatment records show treatment for the right ankle injury only in April 1971 and there is no other treatment. As noted, there is no lay or medical evidence of right ankle symptoms until over 30 years after the in-service injury and service separation. The record shows that the Veteran first reported having right ankle swelling in 2008, when he filed the claim for compensation, and he reported having right ankle pain upon May 2010 VA examination. In weighing credibility, VA may consider interest, bias, inconsistent statements, internal inconsistency, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). These lay statements were first made over 30 years after service and were made in connection with the Veteran's claim for compensation for a right ankle disability. The Veteran's lay statements are also general and do not contain any detailed information about the symptoms such as frequency or duration of the symptoms. The Board also finds that the Veteran's lay statements are not supported by or documented by the service treatment records or the post-service treatment records. Thus, the Board finds that the Veteran's lay statements to have little probative value and do not establish that the Veteran had chronic and recurrent right ankle symptoms in service and since service. The Board finds that the weight of the competent and credible lay and medical evidence establishes that the Veteran did not have chronic and recurrent right ankle symptoms in service and since service. Thus, service connection for a right ankle disability on a presumptive basis under 38 C.F.R. § 3.303(b) is not warranted. The Board finds that the weight of the competent and credible evidence establishes that the current right ankle disability first manifested many years after service separation and is not related to injury or other event in active service. The Veteran was afforded a VA examination in May 2010. The Veteran reported that he injured his right ankle while he was playing basketball, when he was on active duty, and since then his right ankle has been painful. The VA examiner noted that review of the Veteran's service medical records shows that on April 21, 1971, the Veteran injured his right ankle while he was playing basketball. X-rays were negative. There were no fractures. A diagnosis of ligamentous strain was made. The ankle was placed in a plaster cast for three weeks. The VA examiner noted that this was 49 years ago and since that time, the Veteran has no documentation of any problems with his ankle. The Veteran reported that he has received all of his medical care from VA Medical Center in St. Louis since 2007 and the Veteran's diagnostic list at the VA Medical Center does not have a diagnosis of an ankle problem. The Veteran reported that he does not receive any treatment for his ankle and there was no additional history of injury, surgery or hospitalizations. The diagnosis was degenerative arthritis of the right ankle. This diagnosis was substantiated by x-ray examination. In a May 2011 VA medical opinion, the VA examiner stated that the Veteran had a history of injury to the right ankle in April 1971 and x-ray exam was negative. The VA examiner noted that following that, there was no history of chronicity of symptoms or continuity of treatment. The VA examiner stated that the Veteran now has arthritis in the right ankle and there is nothing that relates the arthritis to the past injury. The VA examiner opined that it was less likely as not that the Veteran is service- connected for the right ankle. In a December 2014 VA medical opinion, the VA examiner indicated that he reviewed the Veteran's claims file. The VA examiner opined that the right ankle disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner set forth the rationale. The VA examiner noted that the Veteran had ligamentous strain of the right ankle on April 21, 1971 which was treated and there was no documentation of a right ankle problem for the next 49 years. The VA examiner noted that the Veteran received medical care from VA Medical Center in St. Louis from 2007 onwards and there was no diagnosis of an ankle problem. The Veteran was seen on May 11, 2010 with the complaint of an ankle problem as documented. The VA examiner concluded that it was less likely as not that the ankle arthritis was related to the ankle injury on April 21, 1971 and there was nothing in the history to associate the ankle condition to the 1971 injury. The Board finds the VA medical opinions to have great evidentiary weight as the opinion reflects a comprehensive and reasoned review of the entire evidentiary record. The VA examiner reviewed the claims folder and the Veteran's medical history in detail, considered the Veteran's report of symptoms and onset of the claimed disorder, and examined the Veteran before rendering the medical opinions. The VA examiner cited to the facts and medical research that support the opinion. Factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The medical opinion is based on sufficient facts and data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds the VA medical opinion to have great probative weight. The Veteran himself has related his right ankle disability to the injury he sustained in active service. The Veteran, as a lay person, is competent to describe observable symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465 (1994). 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 issue in this case, an opinion as to the etiology and onset of arthritis falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. There is no evidence that the Veteran has medical expertise or training. As discussed in detail above, the weight of the competent and credible evidence establishes that there is no relationship between the Veteran's current right ankle disability and the injury he experienced during active service. The Veteran has not submitted or identified any competent evidence to support his assertions. The Board finds that the VA medical opinions are competent and credible, and have more probative weight than the Veteran's own lay statements as to diagnosis and causation. The Board finds the weight of the competent and credible evidence shows that the right ankle disability to include arthritis did not manifest in service, first manifested many years after active service and is not related to active service. Thus, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for the right ankle disability, and the claim for service connection is denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for right ankle disability, to include arthritis is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs