Citation Nr: 0005489 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-17 679A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right foot/ankle condition, diagnosed as arthritis, posterior facet talocalcaneal coalition, and slight valgus tilt lateral ankle mortise. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs INTRODUCTION The appellant had active military service from February 1959 to December 1962. This appeal is from a May 1997 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Montgomery, Alabama. FINDINGS OF FACT 1. The appellant has osteoarthritis of the right ankle. 2. There is no medical evidence of arthritis in service or within a year of service, and no medical opinion of nexus between arthritis and any disease or injury in service, and the claim for service connection for arthritis of the right ankle is not plausible. 3. The appellant has posterior talocalcaneal coalition of the right foot and slight valgus tilt of the lateral right ankle mortise. 4. Clear and unmistakable evidence shows that the posterior talocalcaneal coalition and valgus tilt existed prior to entrance into service and that they are congenital diseases or defects. 5. There is no competent evidence that the posterior talocalcaneal coalition or valgus tilt increased in severity during military service. 6. There is no competent evidence of any superimposed injury to the right foot/ankle during military service. 7. The claim of entitlement to service connection for congenital right ankle/foot disorders is not plausible. CONCLUSION OF LAW The appellant has not stated a well-grounded claim of entitlement to service-connection for right foot/ankle disorders, diagnosed as arthritis; posterior facet talocalcaneal coalition; and slight valgus tilt lateral ankle mortise. 38 U.S.C.A. § 5107(a), 38 C.F.R. §§ 3.303(c), 3.306 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The appellant's service medical records are negative for any complaints of or treatment for a foot or ankle condition. On his report of medical history for enlistment in February 1959, he denied any foot trouble; bone, joint, or other deformity; and lameness. His feet and lower extremities were assessed as normal on the enlistment examination. Likewise, on his separation examination, he denied any foot trouble; bone, joint, or other deformity; and lameness. His lower extremities and feet were clinically assessed as normal. In February 1997, the appellant filed a claim seeking service-connected compensation for a right ankle and foot disorder on the basis that it was aggravated by service. He reported swelling, aching, walking with a limp, and "giving out." He reported that he had no treatment while on active duty and that he had been treated since 1996 by Dan Sparks, M.D. The RO requested the appellant's treatment records from Dr. Sparks. In March 1997, a treatment note dated in January 1997 was received from Danny R. Sparks, M.D. It noted that the appellant was seen for follow-up of ankle pain. The appellant reported that his ankle had done pretty well until the last few months, during which time the appellant reported several episodes of his ankle buckling under him and making him fall. He reported his ankle seemed weak and was hurting more. On examination, there was pain in the posterior aspect of the ankle. Neurologic status was intact, and range of motion was good, although his subtalar motion was decreased. He had a slight varus deformity at the subtalar joint area, and the remainder of the ankle examination was normal. An x- ray was reported to show almost a fusion in the area of the posterior subtalar joint. The doctor stated that the appellant's subtalar joint was becoming more stiff as the degenerative process worsened. A vigorous program of physical therapy was planned. In March 1997, a VA medical examination was accorded the appellant. The appellant reported pain in the right ankle joint and occasional swelling. He had a slight limp because of the right ankle. On examination, there was some limitation of motion of the right ankle with minimal deformity. X-rays of the right ankle showed no evidence of fracture or dislocation. Talar beaking was seen along with a small amount of enthesopathic changes at the Achilles' tendon insertion. Other joint spaces were well maintained. The examiner diagnosed osteoarthritis of the right ankle with questionable ankylosis of the talocalcaneal joint. In a May 1997 rating decision, the RO determined that the appellant's claim was not well grounded, there being no evidence of incurrence or aggravation in military service. In March 1998, the appellant submitted a statement from W.L.B., who said he was housed in the same barracks as the appellant at Andrews Air Force Base. He said the appellant suffered leg and ankle injuries which, to the best of his knowledge, he received while in basic training at Lackland Air Force Base. In May 1998, the appellant submitted a statement from R.L.D., who said he was stationed with the appellant at Andrews AFB from April 1961 to April 1962, and that he knew the appellant to have been excused from drilling and marching in parades. He said that it was common knowledge that the excuses were related to physical problems because of leg and ankle injuries he received at Lackland AFB. In November 1998, the appellant submitted a treatment record from Northeast Orthopedic Clinic dated in June 1998. The treatment record related to left [sic] foot and ankle pain. It was noted that Dr. Sparks had seen the appellant one time before and had recommended conservative treatment. Both feet were examined, and there was evidence of very restricted hindfoot movement on the right foot, with tenderness and slight eversion posture of the foot and ankle. The anterolateral ankle joint was tender without any associated instability or swelling. An x-ray was said to show a posterior talocalcaneal coalition, very evident on the lateral view. The ankle joint was formed in a slight valgus position of at least four degrees of lateral tilt of the mortise. The impression was (1) posterior facet talocalcaneal coalition, right foot, probably with secondary stress irritation of the right ankle; and (2) slight valgus tilt lateral ankle mortise. The examiner stated that these are both developmental problems and noted that the appellant contended that they were not symptomatic until active military service. The examiner stated that certain military basic training activities could quite obviously aggravate this kind of a foot. The examiner stated that he had told the appellant that these problems were congenital/developmental. The examiner noted that this type of foot would lend itself to the development of foot and ankle problems with stress. In January 1999, the appellant submitted a statement to the RO. Also submitted was a statement from his mother, dated in March 1997, and a copy of a letter to him, dated in 1961, thanking him for his driving for the Inaugural Parade Committee. The 1961 letter contains no information relating to a foot or ankle problem or complaints. The statement from the appellant's mother says that the appellant was born with a deformed right ankle, and that she was told at his birth that he would have trouble walking and that he would walk with a limp. She said that she was told that, as he got older, he would have pain and his limp would get worse with swelling. The appellant's statement recounted that his medical records would not show any problem with his ankle. He said he was told by his family when he joined the service not to complain of pain, so he did not. He said he addressed his pain by soaking his ankle and foot at night in alcohol and taking aspirin. He said he had to do duck walks two or three times around a field. He said he did not have treatment for many years because he did not know he could make a claim for something he had when he went in the service but that was aggravated by duck walks and marching. II. Analysis The first responsibility of a claimant is to present a well- grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). 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.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). The evidence may show affirmatively that such a disease or injury was incurred in or aggravated by service, or statutory presumptions may be applied to establish service connection. A veteran who has 90 days or more of service may be entitled to presumptive service connection of a chronic disease that becomes manifest to a degree of 10 percent or more within one year from service. 38 U.S.C.A. §§ 1112, 1137 (West 1991 & Supp. 1999); 38 C.F.R. § 3.307 (1999). Arthritis is one of the chronic diseases for which such presumptive service connection may be granted. 38 C.F.R. § 3.309(a) (1999). With chronic disease shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. This does not mean that any manifestation of joint pain will permit service connection of arthritis first shown as a clear-cut entity at some later date. 38 C.F.R. § 3.303(b) (1999). A claim for service connection requires three elements to be well grounded. It requires competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in- service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Truthfulness of the evidence is presumed in determining whether a claim is well-grounded. Id. at 504. In this case, there is medical evidence (VA examination) of arthritis of the right ankle. There is, however, no evidence of arthritis in service or of manifestation of arthritis to a degree of ten percent within a year of service. No medical opinion has related the arthritis of the right ankle to the veteran's military service, including to his reported training activities of marching or duck-walking. To the extent that the appellant's claim is one for arthritis of the right ankle, it is not plausible. There is also evidence of posterior facet talocalcaneal coalition, right foot, probably with secondary stress irritation of the right ankle and slight valgus tilt of the lateral ankle mortise. These diagnoses require further discussion. The appellant asserts that these conditions pre- existed service and were aggravated by his military service. A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he entered into military service except for conditions noted on his entrance examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111 and 1132 (West 1991); 38 C.F.R. § 3.304(b) (1999). In this case, no abnormalities of the feet or joints were noted on entrance examination, and the appellant did not complain of such problems. The question is whether clear and unmistakable evidence shows that his right ankle and foot condition pre-existed service. In this case, the appellant states that his ankle condition existed prior to service. He is not a medical expert, but he may be expected to know whether he had a problem with his ankle before entering the service. His mother has stated that his right ankle was deformed at birth. She is certainly competent to state the fact of the deformity existing at birth. The appellant's private physician had stated unequivocally that the veteran's right foot and ankle problems are congenital/developmental and not related to trauma. There is no medical or lay evidence to the contrary. The Board finds this to be clear and unmistakable evidence that the appellant's right posterior facet talocalcaneal coalition and slight valgus tilt of the lateral ankle mortise existed prior to enlistment, and the presumption of soundness is rebutted. See Harris v. West, 11 Vet. App. 456 (1998), aff'd, No. 99- 7057 (Fed. Cir. Feb. 17, 2000). Service connection may be granted for aggravation of a pre- service disability. 38 C.F.R. § 3.306 (1999). The analysis of that issue turns on whether the veteran's diagnosed ankle disorders are a preexisting injury or disease, or whether they are a congenital or developmental condition, and, if the latter, whether a disease or a defect. Generally, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. See 38 C.F.R. § 3.306(a) (1999). A congenital or developmental defect is not a disease or injury within the meaning of applicable law. See 38 C.F.R. § 3.303(c) (1999). No disability resulting from a congenital or developmental defect may be service connected. Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection may be granted for a congenital or developmental disease if aggravation of the condition occurred during service. VAOPGCPREC 82-90. In this case, the evidence is clear that the veteran's right ankle problems did not result from disease or injury prior to service. That he was born with these conditions is confirmed by his mother and by his private physician. They are congenital, that is, existing at birth but not hereditary, as in, a congenital abnormality. See Webster's II New Riverside University Dictionary, 298 (1988). The next question that must be addressed is whether the congenital condition was a disease process or a defect. VA General Counsel's Office has defined a "defect" as an imperfection or structural abnormality. VAOPGCPREC 82-90. It appears from the medical description of the appellant's valgus lateral tilt and posterior facet talocalcaneal coalition that these are structural abnormalities rather than disease processes. They are abnormalities in the way the veteran's ankle was formed, existing at birth. The Board finds that the description of these conditions might most accurately categorize them as defects, rather than disease processes. However, the Board will also consider whether a different result might obtain if these conditions were classified as congenital diseases rather than defects. Turning first to consideration of the ankle disorders as congenital diseases, service connection on the basis of aggravation may be shown when there is an increase in disability during service. See 38 C.F.R. § 3.306(a) (1999). On this point, there is no evidence of increase in disability. There were no complaints or treatment during service for the right ankle or foot, as the appellant acknowledges. No complaints were noted, and no abnormalities found, on separation examination. No treatment was sought for the right foot or ankle until more than 30 years after service. Accordingly, if the appellant's ankle/foot disorders are considered diseases, there is no evidence of increase in disability during service. Whatever the appellant's complaints of pain on exercise, they were not shown to result in any identifiable residual on separation examination or for many years later. Considering the appellant's ankle disorders as congenital defects, it is clear that such defects, since they are not diseases or injuries under applicable law, may not qualify the appellant for service-connected compensation. It requires more than an increase in severity during service in order to warrant a grant of service connection. There is a lack of entitlement under the law to service connection for the appellant's congenital ankle defect unless the evidence shows that it was subject to a superimposed disease or injury during military service that resulted in disability apart from the developmental defect. See VAOPGCPREC 82-90. The evidence does not show that any superimposed disease or injury to the appellant's right ankle occurred during military service that resulted in disability. The appellant reported no inservice injuries; he merely complained, many years following service, of pain with physical exercise. He also presented statements from fellow service members who recalled his excuse from parades because of leg pain. These men recalled that it was their understanding that the appellant was excused because he had been injured in training. However, this is not evidence of such injury. First, neither of these individuals served with the appellant at the time of the asserted injury. Second, the appellant does not assert such an injury, only that he had pain when doing training exercises. Third, there is no evidence in the service medical records of any kind of limiting physical profile, which would presumably have required the appellant to obtain medical evaluation, which he asserts he did not do. The appellant's private physician noted that the appellant's ankle condition would lend itself to the development of ankle problems with stress. This opinion does not serve to make the appellant's claim plausible. There is no evidence of either superimposed injury or increase in disability during service, and a medical opinion as to what might have happened, without competent evidence that it did happen, cannot serve to well-ground the claim. Accordingly, as the appellant's right foot/ankle condition may not be considered a disease or injury according to VA law, and as there is no competent medical evidence of a superimposed disease or injury during service that resulted in disability apart from the developmental defect, the appellant has failed to state a plausible claim for service connection for posterior facet talocalcaneal coalition, right foot, or slight valgus tilt lateral right ankle mortise. The Board is cognizant of the fact that the appellant maintains that his right foot/ankle condition was aggravated by his military service. Even accepting his statements as true, he cannot meet his initial burden under 38 U.S.C.A. § 5107(a) by simply presenting his own opinion as to medical causation. There is no indication that he possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, his statements are insufficient to well ground his claim. The presentation of a well-grounded claim is a threshold issue, and the Board has no jurisdiction to adjudicate this claim unless it is well grounded. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). There is no duty to assist further in the development of this claim, because such additional development would be futile. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). ORDER Entitlement to service connection for a right foot/ankle condition is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals