Citation Nr: 0734730 Decision Date: 11/02/07 Archive Date: 11/19/07 DOCKET NO. 02-2- 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of left ankle sprain. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran had active service from August 1974 to August 1976. This appeal arose before the Board of Veterans' Appeals (Board) from an October 2001 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO), which denied a request to reopen the claim for service connection for left ankle sprain residuals. In September 2003, the veteran testified before a Veterans Law Judge (VLJ) at the RO. In February 2004, the Board issued a decision which reopened the claim for service connection for left ankle sprain residuals, and then remanded the issue of service connection for additional evidentiary development. In September 2007, the Board informed the veteran that the VLJ before whom he had testified at a Travel Board hearing in September 2003 is no longer with the Board. He was advised that he had the right to another personal hearing. In September 2007, he responded that he did not want an additional hearing. FINDING OF FACT The veteran's diagnosed degenerative arthritis of the left ankle is not related to his period of service active military service. CONCLUSION OF LAW A chronic left ankle disability, to include degenerative arthritis, was not incurred in or aggravated by service, nor may any such disorder be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303(b), 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159, 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. The claimant bears the burden of demonstrating such error. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In August 2001 and March 2004, the RO sent the veteran letters informing him of the types of evidence needed to substantiate his claims and its duty to assist him in substantiating his claims under the VCAA. These letters informed the veteran that VA would assist him in obtaining evidence necessary to support his claims, such as records in the custody of a Federal department or agency, including VA, the service department, the Social Security Administration, and other pertinent agencies. He was advised that it was his responsibility to send medical records showing he has a current disability as well as records showing a relationship between his claimed disabilities and service, or to provide a properly executed release so that VA could request the records for him. The veteran was also asked to provide any evidence in his possession that pertained to his claim. The Board finds that the content of these letters provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was advised of his opportunities to submit additional evidence. Subsequently, a June 2002 SOC and June, September, and November 2002, May and July 2003, and May 2007 SSOCs each provided him with yet an additional 60 days to submit more evidence. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. In addition, it appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In addition, to whatever extent the recent decision of the Court in Dingess v. Nicholson, supra, requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision, since the May 2007 SSOC provided the Dingess information. II. Applicable laws and regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). Establishing service connection generally requires (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 evidence of a nexus between the claimed in-service disease or injury and the present disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under § 3.303(b), an alternative method of establishing the second and/or third Caluza element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of postservice 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. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Significant in case law is that lay persons are not competent to opine as to medical etiology or to render medical opinions. See Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay testimony is competent, however, to establish that observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person may provide eyewitness account of medical symptoms). The Court of Appeals for Veterans Claims has emphasized that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.")). Barr v. Nicholson, No. 04-0534 (June 15, 2007). For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b) (2007). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, supra. However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, No. 07-7029, slip op. at 7 (Fed. Cir. July 3, 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. III. Factual background and analysis The veteran has expressed his belief that his current left ankle problems are the result of a road march in service during which he stepped in a hole. He thought that if he had not gone on a 20-mile road march before the cast had been removed, he would not have developed his current ankle problems. The veteran's service medical records (SMRs) indicate that on November 12, 1974, he sprained his left ankle. He was placed in a short-leg walking cast which was applied for two weeks. On November 27, 1974, the cast was removed and there were noted to be no sequelae of the ankle sprain. The August 1976 separation examination found no residuals of the ankle sprain. Private outpatient treatment records developed between 1992 and 2000 noted his complaints of low back pain, with involvement of the left lower extremity, following an on-the- job motor vehicle accident. He was treated for subsequent herniated discs, to include surgery. An October 2, 2001, examination by a private physician noted the veteran's complaints of trouble with the left ankle. He said that he had fractured the ankle in service; ever since then, he had suffered pain and swelling. There was no evidence of numbness or tingling. The objective examination noted no evidence of joint swelling. The ankle had full range of motion and intact ligaments. He did have mild tenderness along the lateral aspect and with eversion and dorsiflexion. These movements would elicit pain along the lateral ligament of the left ankle. The examiner opined that these complaints were related to the inservice injury. The veteran was afforded a VA examination in June 2003. He complained of occasional left ankle swelling and difficulty standing on the left leg. He also said that the ankle would pop at times, which had become worse over the years. His pain was reported to be on the medial aspect and was worse with wet or cold weather. His pain was not an everyday occurrence; rather, it would hurt about three times a week. He denied any re-injury since 1974. The objective clinical examination noted no abnormalities, deformities, swelling, or tenderness. Dorsiflexion was to 20 degrees and plantar flexion was to 45 degrees. He had a slight limp in the left foot area. An X-ray showed degenerative changes with tibial spurring anteriorly and medially, with no joint fluid of calcification. The joint space and the ankle mortise were well maintained. The examiner stated: It is the provider's opinion that the patient's left ankle condition is as likely as not related to the left ankle sprain during military service mainly because he has done well since 1974 until approximately two years ago. He states he has not received any medical care for his left ankle problem through those years and this is the basis of my rationale. In September 2003, the VA examiner prepared an addendum to the June 2003 report, noting that there was a typographical error in the opinion provided. It was noted that it should have read that his current ankle complaints were "...less likely than not related to left ankle sprain . . ." sustained in service. The veteran then submitted several reports from private physicians. These referred to treatment for steatohepatitis due to alcohol, hyperlipidemia, a history of myalgias, hypertension, gastroesophageal reflux disease, a history of chest pain, cervical degenerative joint disease, cervical strain, and a left ankle sprain. Various attempts were made to obtain additional treatment records from Ft. Polk. The NPRC responded no further records could be located. In July 2004, VA examined the veteran's left knee and ankle. The opinion provided referred to the left knee, although an examination of the left ankle was performed as well. This noted his complaints of pain and swelling. He denied any additional limitations after repetitive use or additional limitations with flare-ups. He stated that he occasionally favored the left ankle, with some limping. VA re-examined the veteran in April 2007. He said that after his release from service, he would have occasional ankle pain; however, it had worsened over the past ten years. He started to have daily pain, as well as instability. He would also have swelling after running three to four blocks. He denied any increased pain with flare-ups. Repetitive motion when trying to play sports would cause pain. There was no excess fatigue or lack of endurance. He was able to perform normal activities and was not taking any medications for treatment of the ankle. X-rays had shown degenerative changes with medial and anterior spurring. The objective examination noted a normal gait, with no edema or heat in the ankle. There was no pain on compression of the malleoli. Dorsiflexion was to 15 degrees and plantar flexion was to 30 degrees. He had 10 degrees of eversion and inversion. These motions did not cause any pain. With repetitive movements, there was no change in range of motion, incoordination, fatigue, lack of endurance, or increased pain. The impression was of degenerative arthritis of the left ankle. The examiner stated that It is the examiner's opinion that he has degenerative arthritis consistent with the aging process. He really did not have a great deal of difficulty with his ankle while he was in the service. I see in the records that he was seen twice. These may be incomplete. However, he did not have difficulty until approximately ten years after discharge. It is the examiner's opinion that it is less likely than not this left ankle current arthritis is related to his sprain in the service. I believe this represents the general aging process. After a careful review of the evidence of record, the Board finds that service connection for the residuals of a left ankle sprain has not been established. The evidence of record clearly shows that the veteran sprained his left ankle in service in November 1974. However, the Board finds that the objective evidence does not support a finding that this injury resulted in the development of a chronic left ankle disorder. This conclusion is supported by the lack of complaints concerning the left ankle from November 27, 1974, until his discharge in August 1976, the normal August 1976 discharge examination, and the silence of the record from 1976 to his first complaints of pain made in 1992. Moreover, while degenerative changes were noted on examination in 2003, there is no evidence that these changes were present to a compensable degree within one year of his separation from service. The Board does note that a private physician in October 2001 related the veteran's current complaints to the ankle sprain in service; however, VA examinations conducted in June 2003 and April 2007 indicated that his degenerative changes were related to the aging process and not to a remote, acute ankle sprain sustained in service. Because it is clear that the VA examiners had reviewed the entire claims folder, to include the SMRs, and had provided complete rationales for the opinions expressed, these examinations will be provided greater probative weight than the private opinion (which did not indicate that the record, to include the SMRs, had been reviewed). See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). It is true that the veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.159, 3.303(a); Jandreau; Buchanan, supra. Here, the veteran is competent to say that he has experienced ankle pain since his release from service. However, the Board does not believe that a left ankle disability related to a remote in-service injury, as contrasted to complaints of ankle pain, is subject to lay diagnosis. The veteran has not demonstrated that he has the requisite expertise to render an opinion as to either medical causation or etiology. See Espiritu, supra. While the veteran's contentions have been carefully and sympathetically considered., these contentions are outweighed by the absence of any medical evidence to support the claim. The preponderance of the evidence is thus against the claim for service connection for the residuals of a left ankle sprain, and, therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, supra. ORDER Entitlement to service connection for residuals of left ankle sprain is denied. ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs