Citation Nr: 0007345	
Decision Date: 03/17/00    Archive Date: 03/23/00

DOCKET NO.  95-35 229	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office 
Center in Fargo, North Dakota


THE ISSUE

Entitlement to service connection for a disability of the 
left ankle.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESS AT HEARING ON APPEAL

Appellant


INTRODUCTION

The veteran had active military service from July 1969 to 
July 1971, October 1981 to March 1982 and from May 1983 to 
September 1984.

This matter is on appeal to the Board of Veterans' Appeals 
(the Board) from the 
Department of Veterans Affairs (VA) Medical and Regional 
Office Center (RO) in Fargo, North Dakota, which was 
substituted for the VARO in Seattle, Washington when the 
veteran relocated after the Board remand in June 1997.  The 
remaining issue on appeal, entitlement to service connection 
for a disability of the left ankle, was recently returned to 
the Board for appellate consideration.


FINDING OF FACT

The claim of entitlement to service connection for a 
disability of the left ankle is not supported by cognizable 
evidence showing tat the claim is plausible or capable of 
substantiation.  


CONCLUSION OF LAW

The claim of entitlement to service connection for a 
disability of the left ankle is not well grounded.  
38 U.S.C.A. § 5107 (West 1991).


REASONS AND BASES FOR FINDING AND CONCLUSION

Criteria

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by service.  
38 U.S.C.A. §§ 1110, 1131, 1153 (West 1991). 

Where a veteran served continuously for 90 days or more 
during a period of peacetime service after December 31, 1946, 
and arthritis becomes manifest to a degree of at least 
10 percent within 1 year from 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.  38 U.S.C.A. §§ 1101, 1112, 
1113, 1137 (West 1991 and Supp. 1999); 38 C.F.R. §§ 3.307, 
3.309 (1999).  

Congenital or developmental defects, refractive error of the 
eye, personality disorders and mental deficiency as such are 
not diseases or injuries within the meaning of applicable 
legislation.  38 C.F.R. § 3.303(c).

Service connection may 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) (1999). 

Determinations as to service connection will be based on 
review of the entire evidence of record, with due 
consideration to the policy of the Department of Veterans 
Affairs to administer the law under a broad and liberal 
interpretation consistent with the facts in each individual 
case.  38 C.F.R. § 3.303(a).

With chronic disease shown as such in service (or within the 
presumptive period under § 3.307) so as to permit a finding 
of service connection, subsequent manifestations of the same 
chronic disease at any later date, however remote, are 
service connected, unless clearly attributable to 
intercurrent causes. 

This rule does not mean that any manifestation of joint pain, 
any abnormality of heart action or heart sounds, any urinary 
findings of casts, or any cough, in service will permit 
service connection of arthritis, disease of the heart, 
nephritis, or pulmonary disease, first shown as a clear-cut 
clinical entity, at some later date.  

For the showing of 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 a diagnosis including the word 
"Chronic." When the disease identity is established (leprosy, 
tuberculosis, multiple sclerosis, etc.), there is no 
requirement of evidentiary showing of continuity. 

Continuity of symptomatology is required only where the 
condition noted during service (or in the presumptive period) 
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).

A preexisting injury or disease will be considered to have 
been aggravated by active military, naval, or air service, 
where there is an increase in disability during such service, 
unless there is a specific finding that the increase in 
disability is due to the natural progress of the disease.

Clear and unmistakable evidence (obvious or manifest) is 
required to rebut the presumption of aggravation where the 
preservice disability underwent an increase in severity 
during service. This includes medical facts and principles 
which may be considered to determine whether the increase is 
due to the natural progress of the condition.  Aggravation 
may not be conceded where the disability underwent no 
increase in severity during service on the basis of all the 
evidence of record pertaining to the manifestations of the 
disability prior to, during and subsequent to service. 

(1)	The usual effects of medical and surgical treatment in 
service, having the effect of ameliorating disease or other 
conditions incurred before enlistment, including 
postoperative scars, absent or poorly functioning parts or 
organs, will not be considered service connected unless the 
disease or injury is otherwise aggravated by service. 

(2)	Due regard will be given the places, types, and 
circumstances of service and particular consideration will be 
accorded combat duty and other hardships of service. The 
development of symptomatic manifestations of a preexisting 
disease or injury during or proximately following action with 
the enemy or following a status as a prisoner of war will 
establish aggravation of a disability.  38 C.F.R. § 3.306.

A threshold question to be answered is whether the veteran 
has presented evidence of a well grounded claim; that is, a 
claim that is plausible or capable of substantiation.  Murphy 
v. Derwinski, 1 Vet. App. 78, 81 (1990).

Although the claim need not be conclusive, it must be 
accompanied by supporting evidence.  An allegation alone is 
not sufficient.  Tirpak v. Derwinski, 2 Vet. App. 609, 611 
(1992).

Three discrete types of evidence must be present in order for 
an appellant's claim for benefits to be well grounded: 

(1) There must be evidence of a current disability, usually 
shown by a medical diagnosis.  Brammer v. Derwinski, 3 Vet. 
App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 
144 (1992); 

(2) There must also be competent evidence of incurrence or 
aggravation of a disease or injury in service.  This element 
may be shown by lay or medical evidence.  Layno v. Brown, 6 
Vet. App. 465, 469 (1994); Cartright v. Derwinski, 2 Vet. 
App. 24, 25 (1991); and 

(3) There must be competent evidence of a nexus between the 
in-service injury or disease and the current disability.  
Such a nexus must be shown by medical evidence.  Lathan, 7 
Vet. App. at 365; Grottveit v. Brown, 5 Vet. App. 91. 93 
(1993).  

In determining whether a claim is well grounded, the Board is 
required to presume the truthfulness of the evidence.  
Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); King v. 
Brown, 5 Vet. App. 19, 21 (1993).

In order for a claim to be well grounded, there must be (1) 
competent evidence of a current disability (a medical 
diagnosis); (2) incurrence or aggravation of a disease or 
injury in service (lay or medical evidence); and (3) a nexus 
between the in-service disease or injury and the current 
disability (medical evidence).  Caluza v. Brown, 7 Vet. 
App. 498 (1995); as applicable to claims of secondary service 
connection and aggravation, see Reiber v. Brown, 7 Vet. 
App. 513 (1995); Nici v. Brown, 9 Vet. App. 494 (1996), 
respectively.

When all the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the appellant prevailing in either 
event, or whether a preponderance of the evidence is against 
a claim, in which case, the claim is denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).

When, after consideration of all of the evidence and material 
of record in an appropriate case before VA, there is an 
approximate balance of positive and negative 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) (West 1991); 38 C.F.R. §§ 3.102, 4.3 
(1999).


Analysis

On a medical examination in June 1969 the veteran reported a 
history of bone or joint deformity and foot trouble which the 
examiner noted referred to an allegation of diminished motion 
of the ankles and questionable deformity.  X-ray of the left 
ankle was read as normal.  The request for x-ray of the left 
ankle in November 1971 noted no subtalar joint motion.  The 
report was of a normal appearing subtalar joint although a 
talar joint surface was not well seen.  On a pre-
commissioning medical examination in May 1973, an examiner 
reported an asymptomatic left ankle with no deformity, all 
motion moderately restricted, no point tenderness and no 
crepitation.  The elaboration of medical history reported 
restricted motion of the left ankle, age 13.  

The report of private hospitalization after a fall in June 
1975 shows the veteran's medical history was unremarkable 
regarding the left ankle and the examination of the 
extremities was reported as unremarkable.  A quadrennial 
examination in June 1977 and periodic examination in November 
1981 showed normal lower extremities and no pertinent medical 
history.  The evaluation of left knee pain complaints in mid 
1989 noted a normal gait.  The medical history obtained 
during hospitalization in May 1990 was remarkable for left 
knee arthroscopy and meniscectomy.  A review of systems and 
examination were unremarkable for the left ankle.  Diagnoses 
included history of left knee pain.  

Medical history obtained in October 1990 noted orthopedic 
problems limited to the left knee and the subsequent 
observation for the left knee through 1991 did not refer to 
any coexisting left ankle problem.  In the evaluation of left 
knee pain complaints in May 1991 it was noted that he had a 
history of congenital subtalar joint fusion.  Medical history 
for dental purposes in April 1992 mentioned a "bad knee" 
and an orthopedic consultation at this time noted left knee 
pain complaints with running.  A physical examination in 
April 1994 found normal lower extremities and there was a 
reference in the medical history to the left ankle and fusion 
of the subtalar joint.

The veteran listed the left ankle in his initial VA benefit 
application in September 1994.  On a vocational 
rehabilitation form contemporaneously he listed numerous 
disabling disorders but did not mention the left ankle.  On 
the initial VA examination in late 1994 he reported problems 
since the 1970's with exertion left ankle pain that had been 
slowly progressive over the years.  He reported that since 
the late 1980's he had not been able to do any high impact 
activities because of knee and ankle problems that were worse 
on the left.  The examiner reported normal appearing ankles 
with diminished movement on the left without tenderness, 
redness, swelling or other acute change.  The x-ray was 
reported as showing a normal left ankle.  The assessment was 
history and physical examination consistent with progressive 
degenerative change in the ankles, mild to moderate on the 
left.

At the RO hearing in late 1995 the veteran recalled left 
ankle problems and the reference to subtalar fusion in the 
service medical records (Transcript 16-19).  Contemporaneous 
VA outpatient records mention left ankle arthritis by history 
in evaluating other complaints.  In October 1995 there was a 
reference to a partially fused left ankle.  There was a 
reference VA examination in early 1996 noted the previous VA 
examination history and the veteran's complaint of pain with 
walking more than a mile or standing more than 30 minutes 
without complaint of instability or other associated 
symptoms.  The examiner noted limitation of motion and that 
the veteran did guard the ankle on examination.  A current x-
ray of the left ankle compared with the study from the 1994 
examination was read as showing a mildly irregular posterior 
facet of the subtalar joint without definitive explanation 
for the cause and need for further investigation to 
differentiate between infection, degenerative change or 
operative manipulation.  The assessment was exertion left 
ankle pain suggestive of mild early degenerative change.  

The VA examiner in late 1997 noted that the veteran's claims 
file was available for review and that the veteran indicated 
that his request for review did not have anything to do with 
his ankle or knee.  The veteran reported to the examiner that 
he had limited motion of the left ankle since a teenager, 
that he had no service-connected injury to the left ankle and 
that he subsequently twisted the left ankle. He reported no 
recent treatment and currently some stiffness with extended 
walking, pain with walking or standing more than 10 minutes.  
He walked with no limp with a cane, he had asymmetrical gait, 
an entirely normal tandem gait, and walked quite easily on 
his heels and toes.  He had marked giveaway weakness of the 
left ankle dorsiflexion, plantar flexion, inversion and 
eversion and he had functional nonanatomic giveaway weakness 
of the toe extensors and flexors.  The examiner stated that 
this examination as compared with his ability to walk on his 
heels and toes and that he obviously had good active 
dorsiflexion of the toes and the left ankle to do that.  The 
examiner reported a normal left ankle examination and 
indicated the motion, stability and the absence of localized 
joint tenderness in support of that conclusion.  The 
diagnosis was normal ankle examination today.  

In discussing the left ankle, the examiner noted that the 
examination was entirely normal, that he did not protest any 
concern about the left ankle and that he did not have a 
preexisting disability left ankle disorder as he had no 
functional limitations of the ankle.  The record of VA 
medical treatment thereafter through mid 1999 appears 
unremarkable regarding the left ankle. 

Section 5107 of title 38, United States Code unequivocally 
places an initial burden upon the claimant to produce 
evidence that a claim is well grounded; that is, that the 
claim is plausible.  Grivois v. Brown, 6 Vet. App. 136, 139 
(1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993).  
Because the appellant has failed to meet this burden, the 
Board finds that his claim for service connection for a 
disability of the left ankle is not well grounded and must be 
denied.

The threshold question that must be resolved is whether the 
appellant has presented evidence of a well-grounded claim, 
that is, a claim that is plausible.  In view of the evidence, 
the Board finds that he has not met this initial burden and 
that as a result there is no further duty to assist him in 
regard to the development of this claim.  The Board in 
remanding the case sought to ensure the appellant was 
afforded due process in view of the information in the file.  
The Board in remanding the case may have given an indication 
or impression that the claim was well grounded.  There is no 
evidence mentioned that would reasonably be viewed as 
probative in the determination of well groundedness but not 
as yet of record.  However, the Board must evaluate the claim 
under the current legal standard for a well grounded claim.  
The Board remand in 1997 was intended to complete development 
asked for in an earlier remand.  In so doing the board felt 
that the veteran had established good cause for failing to 
report for a scheduled examination.  However, the Board in 
stating the claim was well grounded perhaps asked for 
development that was not required under the circumstances of 
the case.  

However, the RO did complete the essential action requested.  
Nothing in the record since the remand has referred to 
evidence probative in the determination of a well grounded 
claim that has not as yet been requested and/or obtained.  
Such evidence has not been reported since notice was given to 
the appellant and his representative that the appeal was 
being returned to the Board.  Nor does it appear that such 
evidence was mentioned at the RO hearing.  Therefore, the 
Board finds that no additional assistance is required at this 
time.  Stegall v. West, 11 Vet. App. 268 (1998); Robinette v. 
Brown, 8 Vet. App. 69, 77 (1995).  

In connection with the development of the claim, the Board 
observes that the RO obtained medical records and additional 
medical opinion.  The VA physician did clearly articulate a 
response to the pertinent questions posed in the Board remand 
and, as the Board finds the claim is not well grounded, there 
is no burden upon the Board to require development, including 
further opinion.  Brewer v. West, 11 Vet. App. 228 (1998).  
The Board has noted the representative's argument.  However, 
the principle that VA cannot assist in developing a claim 
that is not well grounded was recently discussed at length in 
Morton v. West, 12 Vet. App. 477 (1999). 

The veteran is reported as having a congenital subtalar 
fusion of the left ankle and degenerative change and 
arthritis have been mentioned but the arthritis is not 
confirmed.  The veteran has not placed VA on notice of the 
existence of competent medical evidence supporting the 
conclusion that he has currently a left ankle disability 
linked to service by inception or aggravation.  Beausoleil v. 
Brown, 8 Vet. App. 459 (1996); Robinette v. Brown, 8 Vet. 
App. 69 (1995).  Basic requirements for a well-grounded claim 
in this appeal include competent, credible evidence of a 
nexus between service and a left ankle disability if present 
as discussed in Caluza and Nici, supra.   

The Board observes that a congenital fusion would likely fall 
within the disorders listed under 38 C.F.R. § 3.303 but for 
which service connection may be not established.  See, e.g., 
VAOPGCPREC 67-90 and 82-90 (O.G.C. Prec. 67-90 and 82-90).  
The precedent opinion of the VA General Counsel is binding on 
the Board.  38 U.S.C.A. § 7104.  The Board observes that the 
pertinent distinction between congenital or developmental 
"disease" and "defect" in the VA disability compensation 
scheme as discussed in VAOPGCPREC 82-90 (O.G.C. Prec. 82-90) 
has been relied on in precedent decisions.  See for example 
Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. 
Brown, 4 Vet. App. 513, 514-15 (1993).  

The Board observes that the VA reference to partial fusion of 
the left ankle in 1995 is consistent with the reference in 
the service medical record s to congenital fusion and would 
reasonably support the finding of a preexisting disability.  
There is also the history of limited motion complained of on 
the medical examination before he initially entered service.  
The record of the left ankle in the service medical records 
contains information supporting that determination and it is 
not inconsistent with presence of a congenital left ankle 
defect.  See Gahman v. West, 12 Vet. App. 406 (1999) 
distinguished from Miller v. West, 11 Vet. App. 345, 348 
(1998).  There was information available to treating 
personnel that would reasonably be deemed reliable indicating 
preservice limitation of motion of the left ankle.  A 
congenital basis for the left ankle complaints appears to be 
supported by evidence that the Board finds credible in 
establishing preexistence in this case.

The VA examiners have given no indication or suggestion that 
current symptoms appear to be from a superimposed left ankle 
disability or advancement of an underlying disease that 
occurred as a result of service.  Thus as a congenital 
defect, albeit an apparently insignificant one, distinguished 
from a disease, it may not be recognized as a disability for 
which service connection may be granted or compensation paid.  

The Board must point out that the VA examiner in 1999 did not 
offer a plausible basis for finding any symptom or symptoms 
of the left ankle as service-connected.  It must also be 
observed that the examiner did not find a disability of the 
left ankle and the veteran's self reported history did not 
indicate an injury in military service.   His history, which 
is presumed truthful, corroborates the preexisting left ankle 
disorder.  The record would suggest that the veteran's had 
symptoms of the left ankle defect in service, but it must be 
observed that he did not mention it during the ongoing 
observation for the left knee problems that were in part 
linked to exertion.  That is the record does not point to 
manifestations in service that could be reasonably seen as 
more than a continuation of what he had previously 
experienced.  The recent VA medical opinion did not identify 
a left ankle disability and subsequent VA medical reports are 
also silent for left ankle disability or symptoms.  

In summary, the Board finds that the veteran had a congenital 
left ankle defect for which service connection may not be 
established.  However, there has been no evidence offered or 
brought to the Board's attention that would be probative of 
service connection on the basis of aggravation or existence 
of a superimposed disability that could be linked to service.  
What is missing is competent evidence that a present 
disability that is linked to service on the basis of 
competent medical authority and not manifestations that are 
merely characteristic of a preexisting congenital defect.  
This would apply to arthritis if is confirmed 
radiographically.  See 38 C.F.R. §§ 3.303, 4.71a, Diagnostic 
Code 5003.  It is on this basis that the claim is denied as 
not well grounded.  In this case probative medical evidence 
is required to well ground the claim.  The appellant's 
assertions are noted but alone are not of sufficient 
evidentiary value to well ground the claim.  See Degmetich v. 
Brown, 104 F.3d 1328 (Fed. Cir. 1997).

The appellant, as a lay person, is not competent to offer an 
opinion regarding a matter of medical causation, including 
aggravation.  Medical evidence is required, and such evidence 
that may reasonably be interpreted as credible, has not been 
presented.  See Libertine v. Brown, 9 Vet. App. 521 (1996) 
and Alemany v. Brown, 9 Vet. App. 518 (1996) regarding the 
criteria for such evidence to be deemed competent.  The VA 
examiner in 1999 stated the claims file was reviewed and from 
this it was concluded that the veteran did not have a 
preexisting disability since he was found without a current 
disability.  Of course a congenital fusion being a defect 
would not be considered a disability but there was no 
evidence before the examiner indicating currently any left 
ankle disability.  Therefore the record as it currently 
stands is not sufficient to support a plausible claim of 
service connection.  

Although the Board considered and denied the appellant's 
claim on a ground different from that of the RO, the 
appellant has not been prejudiced by the decision.  This is 
because in assuming that the claim was well grounded, it was 
accorded greater consideration than it warranted under the 
circumstances.  Bernard v. Brown, 4 Vet. App. 384 (1993).  In 
determining the claim is not well grounded rather than 
denying the claim on the merits, the appellant has a lower 
burden to overcome in the event he should seek to reassert 
the claim should he obtain probative medical evidence.  

The Board further finds that the RO has advised the appellant 
of the evidence necessary to establish a well grounded claim, 
and the Board has not been directed to any post service 
medical evidence that would well ground the claim but not as 
yet of record.  38 U.S.C.A. § 5103(a) (West 1991); McKnight 
v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 
F.3d 1464 (Fed. Cir. 1997).  


ORDER

Service connection for a disability of the left ankle is 
denied.



		
	Mark J. Swiatek
	Acting Member, Board of Veterans' Appeals