Citation Nr: 1805964 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 12-06 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from December 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida, that denied the above claim. This matter was previously before the Board in April 2017 at which time it was remanded for additional development. It is now returned to the Board. As will be discussed further herein, 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. The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board. FINDINGS OF FACT 1. The Veteran's residuals of a right ankle fracture were specifically noted at the examination when the Veteran was accepted and enrolled for active service. 2. The weight of the competent and probative evidence of record is against a finding that the Veteran's pre-existing residuals of a right ankle fracture underwent a permanent worsening beyond normal progression during active service. CONCLUSION OF LAW The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5103, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in November 2009, July 2014, and May 2017 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service Connection The Veteran is seeking entitlement to service connection for a right ankle disorder, which he asserts is related to an injury he experienced during active duty Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, such as arthritis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112 (West 2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003. When no pre-existing condition is noted upon examination for entry into service, a Veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. Mere history provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition. 38 C.F.R. § 3.304 (b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Therefore, to rebut the presumption of soundness under 38 U.S.C.A. § 1111, there must be clear and unmistakable evidence that (1) a Veteran's disability existed prior to service, and (2) that the pre-existing disability was not aggravated during service. Id.; see also VAOPGCPREC 3-2003. A review of the Veteran's service treatment records reveals that his August 1967 pre-induction examination report shows that clinical evaluation of the lower extremities was within normal limits. In the accompanying report of medical history, the Veteran indicated that he had a history of broken bones. The examiner elaborated that the Veteran had experienced a fracture of the right ankle with no sequelae. A service treatment record dated in February 1969 shows that the Veteran twisted his right ankle while playing basketball. The impression was sprain. However, it does not appear that this disorder was chronic in nature, since his separation physical examination in October 1969 showed that a clinical evaluation of the lower extremities was within normal limits. Next, the first indication of a right ankle disorder was not until December 2009, where he was treated for reported right ankle pain. A VA examination report dated in January 2010 shows that the Veteran reported injuring his right ankle towards the end of his period of active service, and that he experienced ongoing intermittent symptoms thereafter which had progressively increased in severity. The diagnosis was right ankle sprain. The examiner noted that the Veteran had reported that he had continued to seek medical attention privately through the years because he did not know he could seek treatment at a VA facility. The examiner added that there were no medical records in the claims file confirming the chronic nature of the disability. The examiner concluded that the current condition was less likely as not related to the in-service right ankle injury. The examiner noted that if medical records could be obtained to confirm the chronic condition, the case should be reviewed. In a February 2012 addendum, a VA examiner reviewed the medical evidence of record and added that it was less likely as not that the Veteran had any aggravation of pre-service ankle disability in service. The Veteran was said to have had a right ankle fracture that had healed totally before service. He did experience an ankle sprain in service, but it was believed to be unrelated to the current disability as there was no evidence of chronicity in service, during the separation examination, or immediately following separation from service. For the current condition to be causally related, all these were said to be expected. There is no latent period for this type of disability, as was said to have been documented in the literature. A VA examination report dated in July 2014 shows that the Veteran was diagnosed with a right ankle diagnosis prior to service. A history as set forth above was indicated. Following examination of the Veteran, the examiner opined that the pre-existing right ankle disability was less likely as not permanently aggravated by active service. The examiner explained that there was no documented medical evidence of a chronic right ankle condition or disability aggravated by service. In a June 2017 addendum, a VA examiner reviewed the medical evidence of record and indicated that there was documented evidence of an acute right ankle sprain while on active duty. The Veteran was able to return to full duty with no restrictions. There was no documented medical and/or diagnostic evidence of a chronic ankle disability related to his acute ankle sprain while on active duty. The examiner concluded that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in- service event, injury or illness. The examiner explained that there was no documented medical evidence of a chronic right ankle disability aggravated by service. The discharge examination did not show any noted abnormalities of the feet or lower extremities. While there was surgical intervention for a right upper ankle nodule in 2010, this would not be related to his acute right ankle sprain. Having carefully considered the evidence of record, the Board finds that the Veteran's right ankle disability was noted at entrance into active service. The medical history provided at the time of his entrance examination clearly denotes the prior right ankle fracture. Although the entrance examination concluded that there was no sequelae and the lower extremities were within normal limits, this does not diminish the fact that the Veteran's pre-existing right ankle disability was recorded by a physician in the pre-service private medical records. 38 C.F.R. § 3.304 (b); VAOPGCPREC 3-03 (July 16, 2003); McBurney v. Shinseki, 23 Vet. App. 136, 139 (2009). As the Veteran's condition was noted at entrance by both the Veteran and, more importantly, the in-service physician, as well as the Veteran and the June 2017 VA examiner, have stated that the Veteran had a pre-existing right ankle disability, the question before the Board is whether the Veteran's right ankle disability worsened in severity during service. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). The Board finds that the probative medical evidence of record does not show that the Veteran's pre-existing right ankle fracture worsened in severity during service. While it is true that he experienced an ankle sprain during service, this did not appear to be chronic in nature, and temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. See Crowe, 7 Vet. App. at 246; Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In this regard, the June 2017 VA medical examiner concluded that the Veteran's right ankle disability which existed prior to service, did not worsen in severity by an in-service event, injury or illness. There was no medical or diagnostic evidence of a chronic ankle disability related to the acute ankle sprain while on active duty. This opinion is the most probative evidence of record on the question of a nexus to service. Where a medical expert has fairly considered all the evidence, the opinion may be accepted as an adequate statement of the reasons and bases for a decision when the Board adopts such an opinion. The Board does, in fact, adopt the opinion on which it bases its determination that the Veteran's right ankle disability was not permanently aggravated during service, and that service connection is not warranted. Since the VA examiner's opinion was based on a review of the pertinent medical history, and was supported by sound rationale, it provides compelling evidence against the Veteran's claim. The Board emphasizes that the VA examiner provided a valid medical analysis to the facts of this case in reaching the conclusion. In other words, the VA examiner did not only provide data and conclusions, but also provided a clear and reasoned analysis. The Board acknowledges the Veteran's contentions that his disorder is manifested as a result of his period of active service. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 (Fed. Cir. 2007). To the extent that the Veteran is able to observe the onset of his symptoms, his opinion is outweighed by the competent medical evidence as set forth above that outweighs the Veteran's contentions. While the Veteran is competent to claim that he has right ankle symptoms and that his symptoms increased in severity during his period of service, he is not competent to diagnose a specific disability and his opinion regarding the aggravation of a pre-existing disability in service is contradicted by contemporaneous evidence coupled with the opinion of the June 2017 VA examiner whose professional opinion is more probative. In sum, service connection for a right ankle disability is not warranted. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine (where applicable). However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a right ankle disability is denied. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs