Citation Nr: 0711592 Decision Date: 04/19/07 Archive Date: 05/01/07 DOCKET NO. 04-12 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for residuals of bilateral broken ankles. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Seales, Associate Counsel INTRODUCTION The veteran had active duty or active duty for training as a member of the Army National Guard from October 1976 to November 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In that decision, the RO denied the veteran's claim of entitlement to service connection for residuals of bilateral broken ankles. FINDING OF FACT The evidence does not demonstrate any currently diagnosed bilateral ankle disability. CONCLUSION OF LAW A bilateral ankle disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Further regarding notice, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Regarding VA's duty to inform the veteran of the evidence needed to substantiate his claim, the RO notified him of the information and evidence needed to establish entitlement to service-connection in correspondence dated October 2002 by informing him of the evidence he was required to submit, including any evidence in his possession, and the evidence that the RO would obtain on his behalf. Because service connection has been denied, any question as to the appropriate disability rating or effective date is moot, and there can be no failure-to-notify prejudice to the veteran. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding the duty to assist the veteran in obtaining evidence in support of his claim, the RO obtained his service administrative and medical records. The veteran was not afforded a VA examination in connection with the claim and the Board finds that such an examination is not necessary. The evidence of record does not indicate the veteran has a current disability. The veteran has not indicated the existence of any other evidence that is relevant to this appeal. The Board concludes that all relevant data has been obtained for determining the merits of this claim and that no reasonable possibility exists that any further assistance would aid him in substantiating this claim. Discussion The Board has reviewed all of the evidence in the veteran's claims folder, which includes, but is not limited to: service medical records, service administrative documents, and the veteran's lay statements in support of his claim. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on his behalf. The Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, on the claim. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In order to establish service connection, three elements must be established. There must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2006). See also Hickson v. West, 12 Vet. App. 247, 253 (1999). Since the veteran had service in the Army National Guard, he may be service connected for his claimed disability if there is competent medical evidence of a current disability that is causally related to a disease or injury during active duty or active duty for training, or an injury which occurred during inactive duty training. 38 U.S.C.A. § 101 (22), (24), (26), (27); 38 C.F.R. §§ 3.3(a), 3.6(c). Otherwise, membership in the National Guard does not constitute qualifying service for compensation purposes. The veteran claims entitlement to service connection for residuals of bilateral broken ankles. Again, the first question for consideration in evaluating a direct service connection claim is whether the competent evidence demonstrates a current disability. In the present case, the veteran has submitted no medical evidence reflecting complaints of or treatment for a current bilateral ankle disability. Indeed, not a single post-service medical record reflects ankle complaints. Consequently, the veteran's service connection claim must fail. Indeed, in the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In conclusion, no current disability of the bilateral ankles has been demonstrated. Therefore, entitlement to an award of service connection has not been shown. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for residuals of bilateral broken ankles is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs