Citation Nr: 1751967 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-16 900 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a right ankle disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Elizabeth Jamison, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from September 1986 to September 1989, February 2003 to August 2003, and from January 2007 to November 2007, with additional service in the Navy Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which in relevant part, denied entitlement to service connection for a right ankle condition. The Veteran filed a Notice of Disagreement (NOD) in August 2012. The RO issued a Statement of the Case (SOC) in April 2013 and the Veteran filed a timely substantive appeal, VA Form 9, in June 2013. In December 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A copy of the hearing transcript has been associated with the claims file. In April 2016, the Board remanded the claim on appeal to the agency of original jurisdiction (AOJ) for additional development. A November 2016 supplemental SOC continued the denial of the claim. Finally, the Board notes that additional VA treatment records have been uploaded to the Veteran's electronic file since the issuance of the November 2016 supplemental SOC. However, the Board finds that such records are not relevant to the Veteran's claim as they do not contain a diagnosis related to his right ankle pain. Therefore, there is no prejudice to the Veteran in the Board proceeding with a decision at this time. This appeal was processed using the Virtual Benefits Management System (VBMS) and Legacy Content Manager (formerly Virtual VA) paperless claims processing systems. FINDING OF FACT The evidence of record does not reflect a current diagnosis related to the right ankle. CONCLUSION OF LAW The criteria establishing entitlement to service connection for a right ankle disability are not met. 38 U.S.C.A. §§ 101, 1110, 1131 (West 2014); 38 C.F.R. §§ 3.6, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The duty to notify has been met by way of February and April 2011 letters to the Veteran, sent prior to the issuance of the January 2012 rating decision on appeal. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist a claimant in the development of a claim. That duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA fulfilled its duty to assist by obtaining all identified and available evidence needed to substantiate the claim. Specifically, VA has obtained the Veteran's service treatment and personnel records. Post-service VA treatment and private records have also been obtained, as well as VA examination reports. Lay statements of the Veteran are also associated with the record. The Board notes that the claim was remanded in April 2016 with instructions for the AOJ to verify the Veteran's periods of active and inactive duty for training (ACDUTRA and INACDUTRA) in order to determine whether the September 2005 emergency room visit for an ankle injury occurred during such a period. While the RO communicated with the Veteran regarding his service status, further action was not taken to verify his reserve training periods. It appears that the RO accepted the Veteran's assertion that this treatment occurred while in INACDUTRA status, as he was afforded a VA examination in conjunction with his claim in May 2016. A remand to further clarify various periods of service would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). As discussed further below, no current disability is shown so the duty status of the Veteran is irrelevant. Thus, there is no prejudice to the Veteran in proceeding with adjudication. In summary, the evidence of record provides sufficient information to adequately evaluate the claim, thus further assistance with the development of evidence is not required, nor is there notice delay or deficiency identified as resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, appellate review may proceed. II. Service connection The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claim. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Legal criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a). Under VA regulations, service connection may also be granted when the individual concerned was disabled or died from a disease or injury, incurred or aggravated in the line of duty during a period of ACDUTRA, and when the individual became disabled or died from an injury incurred or aggravated in the line of duty during a period of INACDUTRA. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6. ACDUTRA includes full time duty performed by members of the National Guard of any state or the Reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A veteran seeking service connection must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection may be granted for chronic disabilities, such as arthritis, if diagnosed as such in service or manifested to a compensable degree within one year after a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection for a chronic disability may also be presumed based on a continuity of symptomatology from the time of manifestation. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). Pursuant to 38 U.S.C.A. § 1117, a Persian Gulf Veteran with a qualifying chronic disability that manifests to a degree of 10 percent or more before December 31, 2021, may be entitled to compensation. 38 U.S.C.A. § 1117(a) (West 2014); 38 C.F.R. § 3.317(a)(1) (2016) (extended from December 31, 2016 by 81 Fed. Reg. 71,382 (October 17, 2016)). Qualifying chronic disabilities include those that result from (1) "[a]n undiagnosed illness," (2) "[a] medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders, to include irritable bowel syndrome) that is defined by a cluster of signs or symptoms," or (3) "[a]ny diagnosed illness that the Secretary determines in regulations . . . warrants a presumption of service connection." 38 U.S.C.A. § 1117(a)(2)(A), (B), (C); 38 C.F.R. § 3.317(a)(2)(i)(B). Whether lay evidence is competent and sufficient in a particular case is an issue of fact. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (where the condition is simple, for example, a broken leg, but not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Analysis The Veteran contends that service connection is warranted for a right ankle condition incurred as the result of a tree limb falling on his leg during a period of INACDUTRA. The record contains emergency room records from St. Francis Hospital dated September 2005 reflecting treatment of the right ankle due to a blow from a tree limb. The Board notes that billing records submitted by the Veteran purporting to show Tricare payment for this treatment in fact reflect that Tricare rejected responsibility for the charges. Statements dated October 2005 indicate the grounds for the denial was "ID CARD OR ELIGIBILITY EXPIRED ON DEERS." The billing statements indicated Tricare approved zero dollars and the patient was responsible for the amounts incurred as a result of the September 2005 treatment. Nonetheless, the Veteran reported the incident on a June 2008 medical history contained in his STRs and he has consistently described this fact pattern for the duration of the claim. However, in all claims for service connection, the threshold requirement is evidence of a currently diagnosed disability. Boyer, 210 F.3d 1351; Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board acknowledges the September 2005 treatment for right ankle pain. However, a specific diagnosis in relation to the right ankle has not been rendered. The September 2005 treatment provider stated that the evaluation showed swelling, but no acute fracture. No diagnosis was given. In January 2007, the Veteran underwent medical screening for mobilization. He denied any medical conditions and stated he was in good health. Upon examination, his musculoskeletal system was deemed normal. In a February 2010 post-deployment health assessment, the Veteran denied any swelling, stiff, or painful joints. VA treatment records from March 2011 contain x-rays of the right ankle. A slight irregularity possibly due to a prior injury was noted, but no acute osseous abnormality or acute fractures were present. The Veteran reported back and ankle pain in June 2011 during VA treatment. Upon VA examination of his knees in August 2011, the examiner noted that he walked without any aid; his posture and gait were normal. An active problem list from the VA in April 2013 does not reflect any ankle-related conditions. The Veteran underwent VA examination in conjunction with his ankle claim in May 2016. The examiner reviewed the claims file; she noted that the condition was acute only in September 2005 and that there was no evidence of chronicity of care. Following physical examination, she reported that the soft tissue swelling on x-ray did not correlate with clinical findings. Ultimately, she found the right ankle to be normal and declined to make a diagnosis. The Veteran is competent to report the symptoms he attributes to a right ankle condition. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau, 492 F.3d 1372. However, competent testimony is limited to that which the witness has actually observed and is within the realm of his or her personal knowledge; such knowledge comes to a witness through use of his or her senses - that which is heard, felt, seen, smelled, or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). While it is within the Veteran's realm of personal knowledge whether he experienced pain, he has not shown that he possesses the expertise necessary to opine on the complex matter of diagnosing a medical condition such as arthritis or a fracture. See id. Consequently, the objective findings do not support a diagnosis of a right ankle condition. Symptoms alone, without a diagnosed or identifiable underlying malady or condition, do not constitute a disability. Without a pathology to which such symptoms can be attributed, there is no basis upon which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Pain alone is not a disability for which service connection may be granted. Id. at 285. The Board notes that the Veteran has consistently advanced the theory that his right ankle pain is the result of a tree limb falling on his leg in 2005. There has been no allegation that the ankle claim is based upon a theory related to his Gulf War service. Furthermore, the evidence weighs against a finding that the claimed condition manifested to a disabling degree of 10 percent or more, as the May 2016 examination report found that the Veteran did not suffer from a right ankle condition. The VA examiner found no objective clinical evidence of tenderness or pain and noted normal ranges of motion and muscle strength for the right ankle. Thus, entitlement under a Gulf War presumption is not warranted. Additionally, absent a diagnosis, presumptive entitlement as a chronic condition is not warranted. Based upon the evidence of record, the Board concludes that entitlement to service connection for a right ankle condition cannot be granted. There can be no doubt from review of the record that the Veteran rendered honorable and faithful service for which the Board is grateful. However, the competent, probative evidence does not show that the Veteran has a current diagnosis related to his right ankle. Where the medical evidence establishes that a veteran does not currently have a disability for which service connection is sought, service connection for that disability is not authorized under the statutes governing veterans' benefits. See Brammer, 3 Vet. App. at 225; Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection for a right ankle condition may be granted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 57. ORDER Entitlement to service connection for a right ankle disorder is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs