Citation Nr: 1801715 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-07 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The appellant served on a period of active duty for training (ACTDUTRA) from July 4, 1985, to August 30, 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board notes that subsequent to the January 2014 statement of the case (SOC), additional private and VA treatment reports were associated with the claims file without a waiver of review by the Agency of Original Jurisdiction (AOJ). However, these records are either cumulative of the records already considered by the AOJ or unrelated to the issue decided herein. The issues of entitlement to an increased rating for right ear hearing loss, entitlement to service connection for a right foot disability, chronic obstructive pulmonary disease (COPD), substance abuse, a right hip disability secondary to a right foot disability, a right foot scar, and entitlement to a temporary total rating for substance abuse being referred have been raised by the record in a VA Form 21-526EZ dated in October 2017. It appears that some development has been accomplished with regard to these issues, but they have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDING OF FACT The weight of the evidence is against a finding that the appellant's claimed right ankle disability was incurred during a period of active duty for training. CONCLUSION OF LAW Criteria for service connection for a right ankle disability have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records have been obtained. The appellant was provided with a VA examination in May 2013 (the report of which have been associated with the claims file), which the Board finds to be adequate for rating purposes. Additionally, the VA examiner had a full and accurate knowledge of the appellant's disability and contentions, and grounded the findings on objective testing and the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examination includes consideration of the appellant's history, and was based on a review of the appellant's symptoms and complaints. The examiner provided an opinion with fully-stated rationale and consideration of the evidence, and it is adequate for adjudication purposes. The Board has considered the appellant's contention in the May 2014 VA Form 9 that the May 2013 VA examination was inadequate with respect to opinion because the examiner did not consider the appellant's report of a continuity of symptomatology. However, given the Board's review of the examination report, as discussed above, the Board has determined that the examination is adequate to adjudicate the claim, and that remand for additional examination and opinion is not warranted. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991); Sabonis v. Brown, 6 Vet. App. 426 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. Historically, the appellant submitted a claim for service connection for a right ankle disability in November 2012. The claim was denied in an October 2013 rating decision. The appellant disagreed with the denial of his claim and this appeal ensued. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. § 1101, 1133; 38 C.F.R. §§ 3.307, 3.309. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and includes any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty; or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6. Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999). In addition, for certain chronic diseases, a presumption of service connection arises if the disease is manifested to a compensable degree within one year after service. 38 U.S.C. §§ 1133 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A review of the appellant's service treatment reports reflects that the June 1985 enlistment examination reveals a normal clinical evaluation of the lower extremities. In August 1985, the appellant was seen for a swollen, bruised right ankle. Clinical evaluation revealed that the joint was red and swollen but range of motion was full with stable ligaments. The appellant was assessed with a grade II inversion sprain. An August 1985 right ankle X-ray series revealed a small chip fracture of the lateral malleolus. No further reference to this injury was included in the records. Associated with the claims file is an examination report from Summersville Memorial Hospital dated in September 1996 which notes that the appellant had a history of multiple injuries to his right ankle. He was assessed with recurrent episodes of twisting of the right ankle with questionable instability. An operative report from Summersville Memorial Hospital dated in October 1996 reflects that the appellant underwent an arthroscopy of the right ankle with removal of hypertrophic synovium and scar tissue in October 1996. His preoperative diagnosis was chronic right ankle pain with questionable instability and his postoperative diagnosis was hypertrophic synovium and scar tissue in the lateral gutter of the right ankle. Associated with the claims file is VA Form 21-096DM-2, Ankle Conditions Disability Benefits Questionnaire dated in May 2012. A private physician diagnosed the appellant with right osteoarthrosis and right ankle sprain/strain. The physician noted that an ankle fusion was being considered. At a VA examination in May 2013 the appellant was diagnosed with a grade II inversion sprain and degenerative or traumatic arthritis. The examiner acknowledged the appellant's report of problems with his right ankle since his injury during ACTDUTRA with frequent episodes of twisting of the ankle. The examiner opined that the appellant's right ankle disability was less likely than not incurred in or caused by the in-service injury. The examiner indicated that the claims file was reviewed. The examiner noted that the appellant was treated for a right ankle injury in service but that there is no evidence that the appellant had a fracture or that he was hospitalized after the injury as acknowledged by the appellant. The appellant was treated with ice, elevation of the ankle, and crutches during ACTDUTRA. He was not seen again for his ankle until 1995, ten years after the initial injury. The appellant was also treated again for a fall in 2011 at work and diagnosed with a grade III inversion sprain. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the appellant is not entitled to service connection for a right ankle disability. Based on the evidence of record, lay and medical, the Board finds that the weight of the evidence does not demonstrate that the appellant had chronic symptoms related to his right ankle disability in service or continuous symptoms since service. The service treatment records reflect a right ankle sprain during the appellant's period of ACTDUTRA. There was no diagnosis of arthritis of the right ankle in service or within the one year following service. The first post service complaints of any problem with the ankle did not come until he was treated in 1996 as per the private treatment records noted above. While the appellant's statements have generally attempted to link his current right ankle problems to his right ankle sprain during his period of ACTDUTRA, the contemporaneous evidence in the service treatment records do not show any chronic disability of the right ankle. In addition, the evidence includes the May 2013 VA examination report in which the examiner noted that the appellant was not treated for a right ankle disability until 1995 (as noted the private treatment records note treatment in 1996). Therefore, the weight of the evidence does not demonstrate chronic symptoms of a right ankle disability during service. The Board finds that the appellant also did not have continuous symptoms of a right ankle disability since service. While the appellant has reported that he had "problems with his right ankle since service," the evidence of record does not reflect any treatment until 1996, as previously noted. As such, the evidence simply does not show a chronic right ankle disability in service or within a year of service, and it does not show a continuity of symptoms since service regarding the claimed right ankle disability. Thus, presumptive service connection is not warranted. Service connection may also be proven by establishing a nexus between a current disability and service. As to the appellant's belief that his current right ankle disability is related to his period of ACTDUTRA, the Board acknowledges the holding of the U.S. Court of Appeals for the Federal Circuit in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the question of causation extends beyond an immediately observable cause-and-effect relationship. For example, the diagnosis of arthritis of the right ankle was based on the interpretation of an X-ray. With regard to a right ankle disorder other than arthritis, the appellant is considered competent to observe symptoms such as pain, but determining a diagnosis for, or cause of, the symptoms requires medical training and expertise. Likewise, the determination of the etiology of the right ankle disorder is a medically complex determination that requires advanced knowledge of the mechanical systems of the body. Here, the appellant has not been shown to have the requisite medical qualifications and/or training to address etiology of the right ankle disability. In the current case, the appellant has not submitted any medical evidence specifically indicating that his right ankle disability is related to his period of ACTDUTRA. Nevertheless, in an effort to assist the appellant in establishing service connection, the Board obtained a VA opinion to investigate the nature of the appellant's current right ankle disability and the relationship, if any, to his period of ACTDUTRA. The VA examiner's opinion specifically found that the appellant current right ankle disability is unrelated to his period of service. The VA examiner provided specific detail in support of the opinion, including citing to service treatment records, post-service treatment records, and the statements of the appellant. The VA examiner was fully aware of the appellant's past medical history. Moreover, the VA examiner's opinion has not been questioned or undermined by any other medical opinion. Thus, the Board finds the opinion to be highly probative and entitled to great weight. In sum, the evidence weighs against a finding that the appellant's right ankle disability developed in during his period of ACTDUTRA or in the one year period following his period of ACTDUTRA, or that it has been continuous since his period of ACTDUTRA. Moreover, the evidence is against a finding that the arthritis of the right ankle is related to his period of ACTDUTRA on a direct basis. As such, the appellant's claim is denied. ORDER Entitlement to service connection for a right ankle disability is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs