Citation Nr: 1802354 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-33 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and D.C. ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from August 1974 to September 1975. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2017, the Veteran testified by videoconference before the undersigned Veterans Law Judge (VLJ); a transcript of that hearing is of record. The issues of entitlement to an initial rating in excess of 50 percent for PTSD, and entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's left ankle disability was not manifested in service or to a compensable degree within one year of separation and is otherwise unrelated to service. CONCLUSION OF LAW The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017). Standard letter in February 2014 satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c). The Veteran's service treatment records and service personnel records have been obtained. Post-service VA and private treatment records have been obtained. The Veteran was provided a VA medical examination in August 2016. The examination, along with the other evidence of record, is sufficient evidence for deciding the claim for service connection. Thus, VA's duty to assist has been met. II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303 (b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. The theory of continuity of symptomatology can be used only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is competent to report on the onset and continuity of current symptomatology that is observable to the senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the layperson is competent to identify the medical condition, (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, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The service treatment records do not document any left ankle complaints. The Veteran was seen with complaints related to her right foot and/or right ankle in September 1974, October 1974, March 1975, and August 1975, however no left ankle complaints or injuries were noted in the service treatment records. The service separation examination in September 1975 noted normal lower extremities. The Veteran testified that she injured her left ankle running in combat boots during service. She testified that during service she was treated for a left ankle injury with either a cast or wrap, and that she used crutches for some period of time for that injury. She further contends that she suffered a left ankle fracture that was not diagnosed until years later. A November 2014 left ankle X-ray report shows marked enthesopathy was seen at the Achilles insertion on the calcaneus with thickening of the distal insertion. No acute fracture or dislocation was seen. An old avulsion versus normal variant of the medial malleolus tip was noted. The impression was 'no acute findings.' A VA podiatry consultation in September 2015 shows normal range of motion of the left ankle joint. On a December 2015 podiatry consultation, there were complaints of pain in the left ankle upon range of motion, with crepitus noted. The assessment included ankle osteoarthritis. On VA examination in August 2016, the Veteran reported pain in her left ankle. The examiner noted that the Veteran stated onset occurred during basic training (1974) and that she fractured the left ankle without any proper treatment. She stated she 'spent a good portion of the year on crutches' between both ankles and shin splints. Her current symptoms include pain present in both ankles [left greater than right] localized to the ankle with radiation in to the heel. She wears a brace on the left ankle daily due to frequent 'turning' of the left ankle." The examiner noted that X-rays had shown left Achilles enthesopathy. The examiner stated that while "podiatry notes list an assessment of left ankle osteoarthrosis on one office visit, however this is not demonstrated on x-rays." The examiner opined that the Veteran's claimed 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 explained that while the service treatment records did indicate a right ankle injury in 1974, they were silent for a left ankle condition and did not support any evidence any diagnosis/treatment for a left ankle problem during the Veteran's active duty period. The Veteran is competent to report suffering a left ankle injury during service; however the service treatment records do not document any injury to the left ankle. Given that the Veteran has testified to a significant injury during service that was treated at the time with crutches and either a cast or soft wrap, the silence of the service treatment records on any such left ankle complaints or treatment is significant. There is also no documentation of record of any treatments or complaints related to the left ankle for many years after service, which is evidence against a finding of continuity. Thus, the Board does not find the Veteran's report of left ankle injury in service with ongoing left ankle pain since service to be probative on the question of whether a currently diagnosed left ankle disability is attributable to service. The only competent medical opinion of record is that the Veteran's current left ankle disability is not related to an in-service cause. This conclusion is supported by the lack of any contemporaneous evidence of a left ankle injury or complaint in the service treatment records, and the normal findings at separation from service. 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 Veteran contends that she is entitled to a higher initial rating for her service connected PTSD. On a June 2014 VA PTSD examination she reported that she was on Social Security disability but was not sure of the basis of the disability finding. On a February 2017 VA PTSD examination, she reported that she received Social Security since 2014 for "medical issues." On an October 2014 VA treatment record, the Veteran reported that she had not worked since 2011 and that her legal career ended due to her PTSD. The Veteran's SSA records are potentially relevant to the PTSD rating claim and they have not been associated with her claims file. Thus, the RO should attempt to associate the Veteran's SSA records with her claims file. As noted, the Veteran reported that she had not worked since 2011 and that her legal career ended due to her PTSD. As such, a claim for TDIU is part-and-parcel of her claim for a higher rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). On remand, the Veteran should be provided a VCAA notice regarding TDIU and asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Additionally, at her hearing in August 2017, the Veteran reported having had suicidal thoughts in the past few months, wherein she previously had denied any current suicidal ideation/thoughts during the appeal. As this indicates a possible worsening of symptoms since the February 2017 VA examination, a new PTSD examination should also be conducted. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send the Veteran a notice letter advising her about what is needed to substantiate a claim for a TDIU and request that she complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability to obtain relevant employment information and to authorize VA to contact her former employer(s) for additional information regarding her employment. 2. Contact the SSA for records related to the Veteran's disability benefits claim and take appropriate steps to obtain those records. If the records are unavailable, document the claims file and notify the Veteran in accordance with 38 C.F.R. § 3.159 (e) (2017). 3. Schedule the Veteran for a VA examination to evaluate the current severity of her PTSD. The claims file must be made available to and reviewed by the examiner. All tests and studies deemed helpful by the examiner should be conducted in conjunction with the examination. After reviewing the file the examiner is to report the severity of the Veteran's PTSD in terms conforming to the appropriate rating criteria, to include the social and occupational impairment caused by the PTSD. All findings, along with a fully articulated medical rationale for all opinions expressed, should be set forth in the examination report. 4. Thereafter, readjudicate the appeal. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and give the Veteran and her representative the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters 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 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). ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs