Citation Nr: 18145440 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-15 046 DATE: October 29, 2018 ORDER Service connection for diabetes mellitus is denied. Service connection for a sleep disability is denied. Service connection for a left ankle disability is denied. Service connection for a left knee disability is denied. Service connection for arthritis is denied. The application to reopen the claim for entitlement to service connection for hypertension is denied. The application to reopen the claim for entitlement to service connection for coronary artery disease is denied. The application to reopen the claim for entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. An initial disability rating of 10 percent, but no higher, for residuals of a right ankle fracture is granted. An effective date earlier than July 31, 2014 for the award of service connection for residuals of a right ankle fracture is denied. FINDINGS OF FACT 1. Diabetes mellitus was not shown in service, is not attributable to service, and was not manifest within one year of separation from service. 2. There is no probative evidence of a current sleep disability. 3. A left ankle disability is not attributable to service and arthritis of the left ankle was not manifest within one year of separation from service. 4. A left knee disability was not shown in service and is not attributable to service, and arthritis of the left knee was not manifest within one year of separation from service. 5. Arthritis was not shown in service, is not attributable to service, and was not manifest within one year of separation from service. 6. An April 2012 rating decision denied reopening the Veteran’s claim for service connection for hypertension, and denied service connection for a mental breakdown and PTSD. There was no material evidence pertinent to the claims received within one year of the issuance of that decision. The Veteran was notified of the decision and apprised of his appellate rights but did not appeal. 7. The evidence received since the April 2012 decision does not relate to an unestablished fact necessary to substantiate the claims of service connection for hypertension or an acquired psychiatric disability; it is cumulative of the evidence already of record. 8. A May 2011 rating decision denied reopening the Veteran’s claim for service connection for CAD. There was no material evidence pertinent to the claim received within one year of the issuance of that decision. The Veteran was notified of the decision and apprised of his appellate rights but did not perfect his appeal. 9. The evidence received since the May 2011 decision does not relate to an unestablished fact necessary to substantiate the claim of service connection for CAD; it is cumulative of the evidence already of record. 10. Throughout the appeal period, the right ankle fracture residuals have been manifested by pain and functional limitations most nearly representing a moderate disability; the evidence does not reflect or more nearly approximate a marked disability. 11. In November 1991, the Veteran separated from service; a claim for service connection for a right ankle disability was not received within one year of date of discharge. 12. On July 31, 2014, VA received the Veteran’s claim for service connection for a bilateral ankle disability. 13. In a November 2014 rating decision, the subject of this appeal, the RO awarded service connection for a right ankle disability, effective July 31, 2014. 14. There were no informal or formal claims, or written intent to file a claim for service connection for a right ankle disability dated prior to the July 31, 2014 claim. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a sleep disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 5. The criteria for service connection for arthritis have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 6. The April 2012 rating decision denying service connection for an acquired psychiatric disability and declining to reopen the claim for service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 7. Evidence received since the April 2012 rating decision is not new and material, and the claims for service connection for hypertension and an acquired psychiatric disability are not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 8. The May 2011 rating decision declining to reopen the claim for service connection for CAD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 9. Evidence received since the May 2011 rating decision is not new and material, and the claim for service connection for CAD is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 10. Throughout the course of the appeal, the criteria for the assignment of a 10 percent rating for residuals of a right ankle fracture have been met. 38 U.S.C. §§ 1155, 5107; C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.71a, DC 5271. 11. The criteria for the assignment of an effective date earlier than July 31, 2014 for the grant of service connection for a right ankle disability are not met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1966 to November 1991 in the United States Navy. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2014 and November 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran withdrew his request for a hearing. The psychiatric claim was developed as two separate claims for a mental breakdown and PTSD. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the claims have been combined and recharacterized to include any psychiatric disability. Service Connection Claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a 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). For certain chronic diseases, such as arthritis and diabetes mellitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). In addition, the record indicates active service in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317 (d)(1). However, the presumptions referable to Persian Gulf veterans are inapplicable to the disabilities below as they are not “undiagnosed illnesses” or “medically unexplained chronic multi-symptom illnesses.” Indeed, the Veteran underwent a Gulf War General Medical examination in May 2014 and the examiner did not find a qualifying undiagnosed illness, or a diagnosed, but medically unexplained, chronic multi-symptom illness. Finally, diabetes mellitus and ischemic heart disease are included among the diseases eligible for presumptive service connection as due to herbicide agent exposure set forth in 38 C.F.R. §3.309(e). However, the record, including service personnel records, service treatment records (STRs), and his DD Form 214 do not indicate Vietnam service or any other herbicide agent exposure. See February 2012 Formal Finding. None of the ships on which the Veteran served are included in the list of Navy and Coast Guard ships associated with service in Vietnam and exposure to herbicide agents. http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm (last updated September 4, 2018). Moreover, while it appears the RO believed the Veteran was alleging herbicide agent exposure, his representative clarified that he was not making such an allegation in a June 2011 letter. Diabetes Mellitus, Left Knee Disability, & Arthritis Current VA treatment records show diabetes mellitus, left knee degenerative joint disease, and rheumatoid arthritis. No abnormalities involving diabetes, the left knee, or arthritis were noted on the entry into service and he raised no pertinent complaints on his Report of Medical History. The STRs show no complaints, treatment, or documentation pertaining to diabetes, the left knee, or arthritis of any type. Multiple medical examinations were performed during the Veteran’s lengthy service, and none indicate any abnormalities pertaining to diabetes, the left knee, or arthritis. On his November 1991 separation examination, there were no abnormalities of the lower extremities or musculoskeletal system, and a sugar test was negative. There are no records showing diabetes mellitus, a left knee disability, or arthritis dated from within one year of discharge. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claims. The probative evidence does not show that the Veteran's diabetes, left knee disability, or arthritis are related to his active military service. The disabilities were not found in service or within one year of separation from service; rather, the evidence reflects that the disabilities were not shown until years after service discharge. There were no reports of any pertinent disability at discharge and the disabilities were not found on his service discharge examination. The fact that he sought treatment for other conditions in or following service, but not diabetes, a left knee disability, or arthritis weighs against the credibility of any statements that the disorders persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The record does not include an opinion on the matter of service connection. However, in addition to the lack of credible lay or medical evidence showing that diabetes, a left knee disability, or arthritis were incurred during service, the evidence does not link the disorders to service. As there were no relevant complaints, treatment, or diagnoses in service, there is no injury, disease, or event to which a current disorder could be related. Consequently, VA is under no duty to obtain a medical opinion addressing direct service connection. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. Sleep Disability The Veteran reports having a sleep disability that is related to service. However, a review of the claims file reveals no probative evidence of any such disability. A large volume of VA treatment records have been obtained, and they are silent for history, complaints, treatment, or a diagnosis of sleep apnea or any sleep disability. To the contrary, an assessment conducted in July 2006 in preparation for an MRI, for example, specifically indicated the Veteran does not have sleep apnea. He has undergone VA examinations on several occasions for a variety of disabilities, and those examination reports too lack any indication of sleep apnea or any disability. The Board further considered the recent case of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), but finds it inapplicable as the claim here is not pain-based or based on functional impairment. Where the probative evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). In the absence of probative evidence of a current disability, the other elements of service connection need not be addressed and the claim must be denied. The Board has considered the Veteran’s own assertions that he has a current sleep disability. Although he is competent to report his symptoms, he has not been shown to have the medical training or expertise to be competent to render an opinion as to the medical diagnosis or etiology of this disorder. See 38 C.F.R. § 3.159(a)(1)-(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Moreover, the credibility of the general assertions is severely undermined by the absence of any post-service diagnosis of the disability. Additionally, with regard to the provisions pertinent to Persian Gulf Veterans under C.F.R. § 3.317, it is not the case that the Veteran suffers from symptoms that cannot be attributed to a known diagnosis; to the contrary, there is simply no pathology present. He underwent a Gulf War General Medical examination in May 2014 and the examiner stated that all findings were “normal.” He rendered no findings of a qualifying undiagnosed illness, or of any diagnosed, but medically unexplained, chronic multi-symptom illness. Accordingly, the Board concludes that C.F.R. § 3.317 is not applicable. 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. Left Ankle Disability The Veteran has current chronic strain of the left ankle, documented on VA examination in November 2014. A left ankle disability was not noted on entry into service and the Veteran raised no pertinent complaints. In June 1986, he twisted his left ankle playing basketball, and was diagnosed with a mild sprain. The physician provided an ace bandage, and advised him to elevate and ice the ankle. Subsequent STRs do not document any further complaints, treatment, or diagnoses pertaining to the left ankle. On his November 1991 separation examination, no pertinent abnormalities were found. On VA examination in November 2014, the VA examiner reviewed the claims file and examined the Veteran. She noted the June 1986 sprain, but also noted that there was no additional documentation pertaining to the left ankle in subsequent STRs. As such, she opined that the current chronic strain was less likely than not related to the one acute sprain during service. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the Veteran’s left ankle disability is related to his active military service, including to his June 1986 sprain. A chronic disability was not found in service; rather, the evidence reflects that the left ankle strain was not shown until many years after service discharge. Moreover, the fact that he sought treatment for other conditions after service, but not a left ankle disability, weighs against the credibility of any statement that the disorder persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). The medical opinion evidence is also persuasive. The November 2014 VA examiner addressed the contentions of direct service connection, but opined that the Veteran’s left ankle disability was not related to military service. The examiner based her conclusions on an examination of the claims file, including STRs, post-service treatment records, and diagnostic reports. She reviewed the reported history and symptoms in rendering the opinion, and provided a rationale for the conclusions reached. The only evidence to the contrary of the VA examination reports is the lay evidence. The Board finds that, under the facts of this case that include no continuous post-service symptoms, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder of a chronic left ankle strain. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). The Veteran’s chronic left ankle strain is medically complex because of its multiple etiologies, and the fact that it requires specialized testing to diagnose and can manifest symptomatology that overlaps with other disorders. The etiology of the Veteran’s current disability is a complex medical etiological question involving internal and unseen system processes, some of which are unobservable by the Veteran, especially in the context of this case where the weight of the evidence demonstrates no pertinent symptoms for years after service. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. Applications to Reopen Generally, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In considering these claims, the Board considered whether the Veteran has new or distinct diagnoses in accordance with the Federal Circuit’s guidance in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008). However, as a review of the record indicates that the Veteran’s diagnoses pertaining to the claims below have been unchanged since the last final denials, Boggs does not apply. Hypertension & Acquired Psychiatric Disability In a rating decision of April 2012, the RO denied service connection for hypertension, a mental breakdown, and PTSD. The evidence consisted of statements from the Veteran, service treatment records (STRs), service personnel records, VA examination reports, private medical records, and VA treatment records. As for hypertension, the RO denied reopening the claim, which was previously finally denied in February 2002 and November 2006 decisions. While the Veteran had current hypertension, the record still lacked evidence showing that the disability was incurred in or aggravated by service or linked to service. As for an acquired psychiatric disability, the RO denied a claim for a mental breakdown because the record lacked evidence showing that a psychiatric disability was incurred in or aggravated by service or linked to service. Service connection for PTSD was also denied because of a lack of current diagnosis. The RO further found that presumptive service connection was not warranted. There was no material evidence received within one year of the issuance of the April 2012 decision. The Veteran was notified of that decision and of his appellate rights, but he did not appeal. The April 2012 decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. He has not raised a motion to revise that decision based on clear and unmistakable error. Evidence received since the last final April 2012 rating decision includes statements from the Veteran, VA treatment records, records from the Social Security Administration (SSA), and VA examination reports. The basis for the prior denials was a lack of probative evidence establishing the in-service incurrence or aggravation of the disabilities, or a nexus between the current disabilities and service. The records received since April 2012 do not raise any reasonable possibility of substantiating these elements of the claims. Further, a VA Gulf War examination was provided in May 2014, and the examiner found that that hypertension had a clear and specific etiology and diagnosis, and was less likely than not to any environmental exposure in Southwest Asia. The Veteran’s statements, while both admissible and believable, are repetitive of those made prior to April 2012. The prior evidentiary defect has not been cured, nor has it triggered VA’s duty to provide further assistance. The evidence is cumulative and redundant of that already of record when the claims were denied in April 2012. The additional evidence received since the April 2012 rating decision does not relate to an unestablished fact necessary to substantiate the claims for a hypertension or an acquired psychiatric disability, nor does it raise a reasonable possibility of substantiating the claims. The benefit-of-the-doubt doctrine is not for application. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The claims for service connection are not reopened. CAD In a rating decision of May 2011, the RO denied service connection for CAD. The evidence consisted of statements from the Veteran, service treatment records (STRs), service personnel records, VA examination reports, private medical records, and VA treatment records. The RO discussed a prior final November 2006 decision, in which service connection had been denied for CAD because there was no evidence showing that the disability was incurred in or aggravated by service or linked to service, or that it was manifest within one year of discharge. In the May 2011 decision, the RO further denied service connection based on herbicide agent exposure because the Veteran had not served in the Republic of Vietnam and the record did not otherwise indicate in-service herbicide agent exposure. There was no material evidence received within one year of the issuance of the May 2011 decision. The Veteran was notified of that decision and of his appellate rights. He initiated an appeal, but did not perfect his appeal by filing a VA Form 9 or substantive appeal in response to an October 2012 statement of the case (SOC) issued on the claim. The May 2011 decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. He has not raised a motion to revise that decision based on clear and unmistakable error. Evidence received since the last final May 2011 rating decision includes statements from the Veteran, VA treatment records, SSA records, and VA examination reports. The basis for the prior denial was a lack of probative evidence establishing presumptive service connection, the in-service incurrence or aggravation of CAD, or a nexus between CAD and service. The records received since April 2012 do not raise any reasonable possibility of substantiating these elements of the claim. Further, a VA Gulf War examination was provided in May 2014, and the examiner found that that CAD had a clear and specific etiology and diagnosis, and was less likely than not to any environmental exposure in Southwest Asia. The Veteran’s statements, while both admissible and believable, are repetitive of those made prior to May 2011. The prior evidentiary defect has not been cured, nor has it triggered VA’s duty to provide further assistance. The evidence is cumulative and redundant of that already of record when the claim was denied in May 2011. The additional evidence received since the May 2011 rating decision does not relate to an unestablished fact necessary to substantiate the claim for CAD, nor does it raise a reasonable possibility of substantiating the claim. The benefit-of-the-doubt doctrine is not for application. Annoni, 5 Vet. App. at 467 (1993). The claim for service connection is not reopened. Higher Rating Claim Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The probative evidence here includes the VA examination report discussed below. The Veteran’s VA treatment records and private medical records were considered, but do not contain the specific information sufficient for rating the disability under the applicable rating criteria. The Veteran was awarded service connection for his right ankle disability and assigned a noncompensable rating in the November 2014 rating decision on appeal under 38 C.F.R. § 4.71a, DC 5271. Diagnostic Code 5271 pertains to limited motion of the ankle. That code provides a rating of 10 percent for “moderate” limitation of motion, and a maximum rating of 20 percent for “marked” limitation of motion. The words “mild,” “moderate,” and “marked” are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. According to the rating schedule, normal dorsiflexion of the ankle is to 20 degrees, and normal plantar flexion of the ankle is to 45 degrees. 38 C.F.R. § 4.71, Plate II. The probative evidence here includes a VA examination report from November 2014. Considering the pertinent evidence in light of the governing legal authority, the Board finds that a 10 percent rating is warranted for the Veteran’s residuals of a right ankle fracture. Resolving any doubt in favor of the Veteran, the Board finds that the requirement for a “moderate” ankle disability has been met given the Veteran’s pain, which impacts his ability to walk after 15-20 minutes or stand longer than 60 minutes. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that pain may result in functional loss if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Moreover, in Burton v. Shinseki, the Court determined that 38 C.F.R. § 4.59 provides for a minimum 10 percent rating for painful, unstable, or maligned joints, which involve residuals of injuries in non-arthritis contexts. Burton, 25 Vet. App. at 4-5. Doubt is being resolved in the Veteran’s favor as it is unclear whether the above finding in the November 2014 report pertained to the non-service connected left ankle disability, or the right. Elsewhere throughout the report, the Veteran specifically denied pain, including on repetitive use testing, and the examiner objectively found no evidence of any right ankle pain. However, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent as a “marked” ankle disability has not been shown. The VA examiner essentially found the disability is asymptomatic. His range of motion was normal. There was no pain with weight bearing and he could perform repetitive use testing with no loss of motion. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time. There were no flare-ups. Muscle strength was normal. No assistive devices were required. X-rays showed no abnormalities. Muscle strength was normal. There was no swelling. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the right ankle fracture. The Board considered all other diagnostic codes pertaining to the ankle but none provide the basis for a higher rating. The Board considered all other diagnostic codes pertaining to the ankle but none provide the basis for an increase in excess of 10 percent. As the ankle is not ankylosed, DCs 5270 and 5272 do not apply. DC 5273 does not apply as there is no evidence of malunion of os calcis or astragalus. DC does not apply as there has not been an astragalectomy. For the foregoing reasons, the Board finds that a 10 percent rating is warranted for the Veteran’s right fibula fracture residuals, however, the preponderance of the evidence is against the assignment of any higher rating. In reaching this decision the Board considered the doctrine of reasonable doubt, however, to the extent the preponderance of the evidence is against the assignment of a rating in excess of 10 percent, the doctrine is not for application. Earlier Effective Date Claim Generally, the effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). Additionally, in a claim for increase or to reopen, a report of examination or hospitalization may be accepted as an informal claim for benefits, but the provisions of the applicable regulation do not apply here. 38 C.F.R. § 3.157 (b); see Sears v. Principi, 16 Vet. App. 244, 249 (2002). A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1 (p). VA amended its regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As this appeal was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413 (1999). The Veteran seeks an effective date earlier than July 31, 2014, for the grant of service connection for his right ankle disability. The exact date sought, and the reasons for seeking an earlier date, are unclear. The Veteran separated from service in November 1991. A claim for service connection for a right ankle disability was not received within one year of date of discharge. His first claim for any disability was filed in 2001 and pertained only to hypertension. Correspondence to VA was received in the following years, but none makes any mention of a right ankle disability. In fact, in June 2011, the RO noticed a right ankle fracture in service and sent the Veteran a letter inviting him to file a claim for a right ankle disability. The Veteran did not respond to this letter. On July 31, 2014, VA received a VA Form 21-526b for service connection for a bilateral ankle disability. In the November 2014 rating decision on appeal, the RO awarded service connection for residuals of a right ankle fracture and assigned a noncompensable rating, effective July 31, 2014. The appellant perfected a timely appeal of the effective date assigned in the November 2014 rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Because the current effective date of service connection was based upon the date his July 31, 2014 claim was received, the question before the Board is whether there are any earlier claims upon which an earlier effective date of service connection may be granted. On close review of the record, however, the Board can point to no communication prior to the July 31, 2014 claim that could be interpreted as an informal claim for service connection for a right ankle disability. No mention of his ankles was made prior to this date, including in response to the RO’s June 2011 letter. It was not until his July 31, 2014 VA Form 21-526EZ that the Veteran stated his intent to file a claim for service connection for any ankle disability. Thus, the only date that could serve as a basis for the award of service connection is the date of receipt of the Veteran's July 31, 2014 claim for service connection. The exact date on which entitlement arose need not be ascertained in order to conclude that the July 31, 2014 date selected by the RO is the earliest possible effective date here. The reason for this is that, to the extent that entitlement arose prior to July 31, 2014, the date of claim would be the later of the two, and hence the correct effective date as provided by 38 C.F.R. § 3.400(b)(2). Any evidence showing that the entitlement occurred after July 31, 2014 would similarly not entitle the Veteran to an effective date earlier than that already assigned. (Continued on the next page)   There is simply no legal entitlement to an earlier effective date for the award of service connection for the Veteran’s a right ankle disability. As such, the claim must be denied. M. TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel