Citation Nr: 1754208	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO. 11-00 674	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for a left ankle disability.


REPRESENTATION

Veteran represented by:	North Carolina Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Duthely, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1983 to May 1986 and from August 1991 to April 1992. The Veteran has additional service in the Indiana Army National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Jurisdiction over the claim was then transferred to the RO in Columbia, South Carolina. Since jurisdiction was transferred, the Veteran moved to North Carolina; however, at this time, jurisdiction over this claim remains with the Columbia RO.

In July 2012, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. The undersigned noted the issue on appeal and engaged in a colloquy with the Veteran toward substantiation of the claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file.


FINDING OF FACT

The Veteran's left ankle disorder did not manifest in service, nor is it a result of an injury sustained during a period of inactive duty training (INACDUTRA).


CONCLUSION OF LAW

The criteria for service connection for a left ankle condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). 

VA's duty to notify was satisfied by a May 2008 letter. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records, and VA medical records. The Veteran has not identified any outstanding records needing to be obtained. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c).

VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded an in-person examination in August 2010. The VA examiner again reviewed the file and issued an addendum opinion in July 2014. The VA examiner provided clear explanations in support of the opinions and findings. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). The VA examination and medical opinions are adequate to decide the Veteran's claim.

In September 2016, the case was remanded in order to contact the appropriate record depository to obtain the Veteran's outstanding service records. Those records were retrieved and associated with the claims file in September 2017. Therefore, there is substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).

VA has satisfied its duties to notify and assist and the Board may proceed with appellate review.

Service Connection for a Left Ankle Disorder

The Veteran contends that his left ankle disorder is a result of a running injury sustained during a period of inactive duty for training (INACDUTRA). 

The term "active military, naval, or air service" includes active duty, any period of active duty training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101 (21), (24) (2012); 38 C.F.R. § 3.6 (a), (d) (2017); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6 (c)(1) (2015). The Court has held that regulations concerning presumptive service connection, the presumption of soundness, and the presumption of aggravation are inapplicable to claims based upon ACDUTRA and INACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40 (2010). If "veteran" status has been established through a prior period of active duty and an entrance examination was performed prior to the period of ACDUTRA, the presumption of soundness only, will apply to a period of ACDUTRA. Id.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. 

The Veteran was diagnosed with a ligament tear and avulsion fracture and underwent reconstructive surgery in July 2003. The Veteran was later in a motor vehicle accident that aggravated his left ankle injury, and underwent excision of osteophytes of the medial malleolus in December 2005. 
The Veteran contends that he twisted his ankle during a running exercise during a period of INACDUTRA, necessitating his July 2003 surgery, and that his December 2005 surgery was an aggravation of this prior injury. However, the preponderance of the evidence is against the Veteran's claim. 

Treatment records for the Veteran's period of reserve service in May 2003 show the Veteran was deemed fully fit. Treatment records from September 2003 note that the Veteran was deemed fit for duty after his surgery and was able to run three miles without pain. The Veteran's treatment records are absent of any mention of the Veteran's left ankle, outside of noting his ankle surgery. 

The Veteran's March 2003 private treatment records note he injured his ankle while running. In April 2003, Eric S. Leaming, M.D. noted that the Veteran had some degree of left foot and ankle pain up for approximately two years prior. Dr. Leaming also noted that the Veteran reported inverting his ankle while running three weeks prior. In May 2003, Dr. Leaming noted that the Veteran injured his left ankle on March 16, 2003 as a result of "training for a mini-marathon."

Upon VA examination in August 2010, the examiner opined that the Veteran's left ankle condition was not etiologically related to any aspect of his active service. The examiner noted the absence of any treatment in service for the Veteran's left ankle as well as the Veteran's history of pain in the left ankle beginning in 2001. The examiner also noted the Veteran's subsequent motor vehicle accident resulting in injury to the ankle.

In an addendum opinion in July 2014, the VA examiner again opined that the Veteran's left ankle condition was not etiologically related to any aspect of his active service, and noted that in July 2005, the Veteran's private physician linked the Veteran's ankle condition to his motor vehicle accident. The examiner also noted the Veteran returned to full duty in September 2003, following his first ankle surgery. 

In an August 2012 letter, Dr. Leaming opined that the Veteran's left ankle injury was "secondary to military related activities" based on the Veteran's history. However, Dr. Leaming did not discuss the absence of a left ankle injury in the Veteran's treatment records, nor address his prior note that the Veteran injured his ankle while training for a marathon. Further, Dr. Lemming did not provide an adequate rationale for why the December 2005 injury was an aggravation of the March 2003 injury. As a result, this opinion is less probative than that provided by the August 2010 and July 2014 VA examiners. 

In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 
However, Dr. Leaming's statement does not represent factually-informed opinions. Dr. Leaming stated his opinion was not based on a full review of the Veteran's file. As a result, the Board does not find this opinion persuasive. See Bloom v. West, 12 Vet. App. 185, 187 (1999). 

The Veteran maintains that he injured his ankle during a period of INACDUTRA and has provided several buddy statements in support of that assertion. However, this contradicts earlier reports that the Veteran injured his ankle training for a marathon. Contemporaneous evidence has greater probative weight than a history reported by a veteran. See Curry v. Brown, 7 Vet. App. 59 (1994). Thus, the Veteran's contemporary reports of medical history outweigh his later assertions that his injury occurred during a period of INACDUTRA. 

Absent competent, credible, and probative evidence of a nexus between the Veteran's left ankle disorder and his active service, the Board finds that his left ankle disorder is not etiologically related to service. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA...the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); see also Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). 
Accordingly, service connection for a left ankle disorder is denied. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56.


ORDER

Service connection for a left ankle disorder is denied.



____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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