Citation Nr: 1802684 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-17 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Faverio, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1972 to July 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which, in pertinent part, denied service connection for a left ankle disability and PTSD. The Veteran timely appealed these issues. The December 2009 rating decision also denied the Veteran's claims for service connection for bilateral hearing loss and tinnitus, which were appealed by the Veteran, in addition to the claims currently before the Board. See June 2010 Notice of Disagreement and June 2011 VA Form 9. Before the appeal was certified to the Board, however, in an April 2016 rating decision, the RO granted service connection for tinnitus and assigned an initial 10 percent disability rating effective May 21, 2009. The remaining issues were before the Board in March 2017. At that time, the Board remanded the issues for additional evidentiary development. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd Dyment v. Principi, 287 F.3d 1377 (2002). While the matter was in remand status, in an August 2017 rating decision, the RO granted service connection for bilateral hearing loss and assigned an initial noncompensable disability rating effective March 21, 2009. The grant of service connection for tinnitus and bilateral hearing loss constitutes a full award of the benefits sought on appeal with respect to those claims. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the Veteran has initiated an appeal with the initial ratings or effective dates assigned. Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Thus, those issues are not before the Board. The issue of service connection for an acquired psychiatric disability, to include depression and PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A left ankle disability did not have its onset during the Veteran's active service, arthritis was not manifest to a compensable degree within one year of separation, and the most probative evidence indicates that the Veteran's current left ankle disability is not otherwise causally related to his active service or any incident therein. CONCLUSION OF LAW The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Neither the Veteran nor his representative has raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Merits Entitlement to Service Connection for a Left Ankle Disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for arthritis when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). As the Veteran is not claiming that his left ankle disability has been caused by or aggravated by another disability, and the record contains no indication of causation or aggravation, this theory of entitlement will not be addressed. The law provides that, in the case of any Veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence of an injury incurred in service shall be accepted as sufficient proof of service incurrence of the injury if the evidence is consistent with circumstances of service of service and notwithstanding that there is no official record of service incurrence of the injury. 38 U.S.C. § 1154(b) (2012). In this regard, the Veteran's participation in combat is not established. The Veteran's DD Form 214 shows that the Veteran served in the United States Navy with a primary specialty of Interior Communications Electrician. The Veteran did not have any decorations, medals, badges, commendations, citations or campaign ribbons on his DD Form 214 showing that he engaged in combat while on active duty. He has not contended otherwise. The Veteran's service treatment records (STRs) are devoid of any indication that he complained of, was diagnosed with, or suffered from a left ankle injury or disability. His STRs showed that he suffered an injury to the right ankle, but not the left, while playing basketball in January 1975. The Veteran underwent an examination in February 1972 in which all relevant body systems, including feet and lower extremities, were marked as normal. The Veteran himself reported that his medical history did not include broken bones, arthritis, rheumatism, or bursitis. He reported having no bone, joint, or other deformity and no foot trouble. In his June 1975 separation examination, all relevant body systems, including feet and lower extremities, were marked as normal. In January 2010, the Veteran had x-rays of his left ankle. Prior to the x-ray, the Veteran reported complaints of left ankle pain and a history of a left ankle fracture, years ago, in the military. The Board notes that there is no record of a left ankle fracture during active duty in the claims file. The radiology report showed that the bony structures of the ankle appeared intact without acute fracture or alignment. Mild degenerative joint space changes were identified. The level of mineralization appeared adequate for the Veteran's age. Soft tissues appeared unremarkable. The Veteran was assessed with mild DJD. The Veteran was afforded a VA examination for his ankles in November 2012. Here, the examiner conducted an in-person examination and reviewed the Veteran's electronic claims file. The examiner found that the Veteran had a diagnosis of mild degenerative joint disease (DJD) in the left ankle, which was diagnosed in 2010. In the medical history portion of the examination, the examiner noted that the Veteran reported that all previous claims that listed the left ankle as the injured ankle were in error and should have been the right ankle. While the Veteran reported some left ankle pain, he stated he believed his right ankle was causing him the most problems. The examiner conducted a series of examinations on the Veteran's ankles and provided a medical opinion for direct service connection. The examiner found that it was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In his rationale, the examiner found that the Veteran's previous left ankle complaints should have been right ankle complaints, as clarified by the Veteran. Despite his claim that his previous claims for pain in the left ankle should have been attributed to his right ankle, the Veteran clarified, in March 2016, that his left ankle is on appeal. See Report of General Information, March 2016. In a January 2013 Outpatient Care Note from the Alexandria VAMC, the clinician stated that the Veteran presented with left ankle pain; however, pertinent findings showed that his right knee had pain and stiffness. More recent medical records show that the Veteran has not further complained of left ankle pain. An Outpatient Care Note from the Alexandria VAMC, dated January 2017, noted that the Veteran had a pain assessment and reported pain in bilateral knees, the lower back, and left hip. He did not report pain in his left ankle. After careful review of the medical evidence of record, the Board cannot make a finding that the Veteran's left ankle disability was at least as likely as not incurred in or a result of his period of active service. The Veteran has not contradicted the finding that the only left ankle disability is mild DJD and was not found until 2010, approximately 35 years after his separation from service. Additionally, the Veteran does not contend, and nothing in the record shows, that a treatment provider for the Veteran has told him that his left ankle disability was attributed to any period of active service. Therefore, the requirements for direct service connection have not been met and service connection is not warranted. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Similarly, service connection may not be presumed pursuant to 38 U.S.C. § 1112 and implementing regulations because the evidence shows that his left ankle arthritis did not manifest within one year of separation from active service. Based on the above, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for a left ankle disability. The appeal must therefore be denied. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a left ankle disability is denied. REMAND A review of the record shows that further development is necessary before a decision may be reached on the merits of the Veteran's claim for service connection for an acquired psychiatric disability, to include depression and PTSD. In November 2017, the Veteran submitted correspondence stating that he suffered sexual and psychological abuse which caused his PTSD. This stressor has not been previously addressed by the RO as the Veteran has not previously reported it. Additionally, the Veteran states he received mental health treatment from the Central Louisiana State Hospital in Pineville, Louisiana. These records are not in the claims file. The Bord notes that where a PTSD claim is based on an in-service personal assault, evidence from sources other than service records may serve to corroborate the account of the stressor incident. In such cases, VA is expressly required by regulation to advise a claimant that evidence from sources other than his or her service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and thereafter allow him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(3) (2017). A review of the record indicates that the Veteran has not yet been provided with the required notification and an opportunity to respond. This must be accomplished on remand, given the nature of his contentions. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all relevant clinical records from January 2017 to the present. The RO should also obtain all relevant medical records from the Pineville, Louisiana VAMC and the Central Louisiana State Hospital in Pineville, Louisiana. 2. The RO should provide the Veteran and his representative with appropriate notice pursuant to 38 C.F.R. § 3.304(f), which includes an advisement that evidence from sources other than his service records or evidence of behavior changes may constitute credible supporting evidence of his claimed in-service stressor. He should thereafter be allowed the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 3. After conducting any additional development deemed necessary, to include a VA medical examination if required based on any additional evidence received pursuant to the development outlined above, the RO should readjudicate the claim. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and given an appropriate period to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 that are remanded by the Board 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. §§ 5109B, 7112 (2012). ______________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs