Veteranclaims’s Blog

August 29, 2012

Single Judge Application; Delisio v. Shinseki, 25 Vet.App. 45, 54 (2011); Sanchez-Benitez v. West, 13 Vet.App. 282 (1999)

Excerpt from decision below:
“Fourth, the feet examiner provided no explanation for his conclusion that “[the appellant’s] ankle edema is not caused by or as a result of his flat feet.” R. at 926-27.
Fifth, the feet examiner indicated that the appellant’s “complaints, examination findings[,] and radiographs are consistent with plantar fasciitis and heel spur syndrome,” but the examiner provided no opinion as to whether either the appellant’s plantar fasciitis or his heel spur syndrome is related to his service-connected pes planus. Id.; see Delisio v. Shinseki, 25 Vet.App. 45, 54 (2011) (if information obtained during the processing of a claim reasonably indicates that the cause of the condition for which compensation is sought is a disability that maybe associated with service, the
Secretary generally must investigate whether the causal disability is related to service, in order to determine whether the claimed condition is related secondarily to service).

The Court also notes that the Board, in addressing the appellant’s ankle pain, may have narrowed the holding of Sanchez-Benitez v. West, 13 Vet.App. 282 (1999), as it relates to this case.
While the Board cited that case for the proposition that “pain alone,
without a diagnosed related medical condition, does not constitute a disability for which service connection maybe granted,” the Court there stated that “pain alone without a diagnosed or identifiable
underlying malady or condition, does not in and of itself constitute a disability for which service connection can be granted.” Id. at 285 (emphasis added); R. at 11. In accordance with this holding, the Board failed to make a finding as to whether the appellant had an identifiable ankle malady or condition.

===========================
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-1135
FREDDIE L. GIBSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KRAMER, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KRAMER,Judge: The appellant appeals from the December 15,2010,
decision of the Board of Veterans’ Appeals (Board) that denied entitlement to service connection for (1) a bilateral ankle disorder (claimed as chronic ankle pain), to include as secondary to service-connected bilateral pes planus; and (2) prostate cancer. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate when the issue is of
“relative simplicity” and “the outcome is not reasonably debatable.”
Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the following reasons, the Board’s
December 2010 decision will
be affirmed, in part, and vacated, in part, and the vacated matter will be
remanded for further
proceedings consistent with this decision.
Bilateral Ankle Disorder
In November 2000, the appellant was granted service connection for flat
feet, with a
noncompensable rating. Record (R.) at 1326-31. In February 2004, the
appellant filed a claim for
service connection for chronic ankle pain, secondary to his service-
connected flat feet. R. at 1137-
38. VA medical records reflect ankle pain, ankle tenderness on palpation,
and swollen ankles at

various points in time. See, e.g., R. at 915-27, 986-87, 988, 996-97,
1139-40, and 1160. In the
decision under review, the Board noted that the appellant’s medical
records reflected these
symptoms, but found that those records lacked a diagnosis of a current
ankle disorder or of a chronic
ankle disorder. R. at 9-13. Based on the lack of a medical diagnosis of an
ankle condition, the Board
determined that the appellant did not have a current ankle disability. R.
at 11. Based on the lack of
a current ankle disability, the Board denied the claim. See Hickson v.
West, 12 Vet.App. 247, 253
(1999) (establishing service connection requires, inter alia, evidence of
a current disability). The
Board partiallyrelied on two VA medical examinations, both conducted on
June 7, 2007. R. at 915-
927 (ankle examination), 928-32 (feet examination).
The appellantarguesthatboth ofthesemedicalexaminations areinadequate.
Appellant’s Br.
at 7-10; see Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (“[O]nce the
Secretary undertakes the
effort to provide an examination when developing a service-connection
claim, even if not statutorily
obligated to do so, he must provide an adequate one or, at a minimum,
notify the claimant why one
will not or cannot be provided.”). The Court agrees and finds clearly
erroneous the Board’s
determination that the VA examinations are adequate. See D’Aries v. Peake,
22 Vet.App. 97, 104
(2008) (“Whether a medical examination is adequate is a finding of fact,
which this Court reviews
under the ‘clearly erroneous’ standard.”).
First, the examiners reached different conclusions regarding the
appellant’s ankle condition,
despite the fact that they were conducted on the same day. For example,
the ankle examiner report
found no history of, or current, ankle symptoms, while the feet examiner
noted ankle edema and
“pain with forced dorsiflexion of ankle at posterior calcaneous insertion
of Achilles.” R. at 917-19,
921, 927. Second, the examinations addressed whether the appellant had a
current ankle condition
at the time of the examinations, but neither examination
specificallydiscussed whether the appellant
had a medical condition involving his ankles at any time since he filed
his claim in February 2004.
See McClain v. Nicholson, 21 Vet.App. 319, 321 (2007) (the current
disability requirement for
service connection is satisfied “when a claimant has a disability at the
time a claim for VA disability
compensation is filed or during the pendency of that claim,” and that
entitlement to service
connection may be granted “even though the disability resolves prior to
the Secretary’s adjudication
of the claim”). Third, the feet examiner, while noting ankle swelling
and pain, did not provide any
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diagnosis or explanation why a diagnosis could or should not be made,
despite specifically noting that the appellant was seeking service connection for an ankle condition. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (“[A] medical examination report must
contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.”).
Fourth, the feet examiner provided no explanation for his conclusion that “[the appellant’s] ankle edema is not caused byor as a result of his flat feet.” R. at 926-27.
Fifth, the feet examiner indicated that the appellant’s “complaints, examination findings[,] and radiographs are consistent with plantar fasciitis and heel spur syndrome,” but the examiner provided no opinion as to whether either the appellant’s plantar fasciitis or his heel spur syndrome is related to his service-connected pes planus. Id.; see Delisio v. Shinseki, 25 Vet.App. 45, 54 (2011) (if information obtained during the processing of a claim reasonably indicates that the cause of the condition for which compensation is sought is a disability that maybe associated with service, the
Secretary generally must investigate whether the causal disability is related to service, in order to determine whether the claimed condition is related secondarily to service).

The Court also notes that the Board, in addressing the appellant’s ankle pain, may have narrowed the holding of Sanchez-Benitez v. West, 13 Vet.App. 282 (1999), as it relates to this case.
While the Board cited that case for the proposition that “pain alone,
without a diagnosed related medical condition, does not constitute a disability for which service connection maybe granted,” the Court there stated that “pain alone without a diagnosed or identifiable
underlying malady or condition, does not in and of itself constitute a disability for which service connection can be granted.” Id. at 285 (emphasis added); R. at 11. In accordance with this holding, the Board failed to make a finding as to whether the appellant had an identifiable ankle malady or condition.

Accordingly, the Court will vacate the Board’s denial of service
connection for a bilateral ankle condition and remand that matter for further proceedings consistent with this decision. On remand the Board should also address whether any of the appellant’s medical records constitute an informal claim for an increased rating of his service-connected bilateral pes planus under 38 C.F.R. § 3.157(b)(1) (medical records can serve as an informal claim “when such reports relate to examination or treatment of a disability for which service-connection has previously been established”).
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Prostate Cancer
With respect to his service-connection claim for prostate cancer, the
appellant argues that a
July 2007 VA genitourinary examination was inadequate because the examiner
did not include an
opinion as to the etiology of his prostate cancer. Appellant’s Brief (Br.)
at 10-11; R. at 902-11. The
examination in question focused on issues relevant to a disability rating
for the appellant’s prostate
cancer, and did not address nexus to service, apparently under the
assumption that the appellant had
served in Vietnam and would be presumptively service-connected. R. at 896.
VA notified the
appellant in an August 2007 rating decision that he had no service in
Vietnam and that therefore the
examination should not have been conducted. Id. There is no evidence that
VA provided a further
examination relating to prostate cancer.
The Court finds that, even assuming VA erred in not providing a followup
nexus medical
opinion or, in the alternative, proper notice to the appellant that one
would not be conducted, such
error was not prejudicial. See Sanders, supra. Service connection requires,
inter alia, evidence of
in-service incurrence or aggravation of a disease or injury. See Hickson,
supra. The Board found
thattheappellant’s servicemedicalrecords,
includingtheappellant’sseparationexamination,support
a conclusion that the appellant did not have a prostate disorder in
service. R. at 13. This finding is
supported by the record. The appellant has identified no evidence, lay or
otherwise, indicating in-
service incurrence of a disease or injury, and there does not appear to be
any in the record on appeal.
Accordingly, the Court is unable to conclude that the appellant was
prejudiced by the lack of a
medical examination as to a causal relationship between any in-service
injury or disease and the
appellant’s prostate cancer. See Sanders, supra.
CONCLUSION
Upon consideration of the foregoing, the submissions of the parties,
and the record on appeal, that part of the December 15, 2010, Board decision denying service connection for a bilateral foot condition is VACATED and the matter is remanded for further proceedings consistent with this decision. That part of the Board’s decision denying service connection for prostate cancer is
AFFIRMED.
4

DATED: August 27, 2012
Copies to:
Ronald C. Sykstus, Esq.
VA General Counsel (027)
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