Citation Nr: 0814444 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 01-06 949A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The veteran served on active duty from February 1986 to August 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C. Jurisdiction over the claims folder was subsequently transferred to the RO in Pittsburgh, Pennsylvania. The veteran currently resides abroad, in Germany. When the case was before the Board in May 2006, it was decided in part and remanded in part. This case has since been returned to the Board for further appellate action. FINDING OF FACT A current right ankle disability is etiologically related to service. CONCLUSION OF LAW A right ankle disability was incurred as a result of active duty. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007) or 38 C.F.R. § 3.159 (2007). Legal Criteria 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, 1131. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. Analysis The service treatment records show that the veteran sustained multiple right ankle sprains in May 1986, March 1987, and September 1987. The veteran also had an injury to both shins in a motor vehicle accident in 1986. The veteran opted not to undergo an examination at separation from active duty. Since service, the veteran received a diagnosis of right upper ankle joint arthrosis, as shown in an August 2003 examination report. The veteran reported to his private physician W.B., M.D. that he has experienced impaired movement, pain, swelling and giving way of the right ankle joint since service. The recent evidence also shows that the veteran sustained a post-service work injury to his right lower leg in 2002. The veteran was afforded a VA contract examination in June 2007 for the purpose of obtaining a nexus opinion. The examiner conducted what appears to be a thorough examination of the veteran, and reviewed the claim file, including the service records and the record of post-service injury. The first orthopedic diagnosis was a chronic right ankle sprain with persistent lateral ligament instability because of torn anterior fibulo-talar ligament. MRI results somewhat contradicted the findings of the August 2003 examination, and showed that the veteran has no right ankle arthritis, but rather a completely torn lateral ligament. The MRI results were thought by the examiner to be more reliable than the previous X-ray results. The second orthopedic diagnosis was a flake fracture featuring two osteonecrotic lesions at the lateral talus trochlea, right lower ankle joint compartment. It was the examiner's opinion that there is a more than 50 percent probability that both conditions are etiologically related to the veteran's military service. The examiner also diagnosed a persistent connective soft tissue lesion, dorsal right lower leg (11 cm. above ankle level), with recurrent soft tissue swelling, which can extend also down to the right ankle region. This was noted as a work-related injury, and it was the opinion of the examiner that it was definitely non-related to the veteran's military service. There is no medical nexus opinion of record that contradicts the opinion of the June 2007 examiner. Accordingly, the Board concludes that the claim is adequately substantiated, and service connection for a chronic right ankle sprain and osteonecrotic lesions of the lateral talus trochlea is in order ORDER Entitlement to service connection for a chronic right ankle sprain and osteonecrotic lesions of the lateral talus trochlea is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs