Citation Nr: 1012302 Decision Date: 04/01/10 Archive Date: 04/14/10 DOCKET NO. 09-03 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for residuals of right ankle injury. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from March 1948 to February 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2009). FINDING OF FACT The Veteran's residuals of a right ankle injury, diagnosed as degenerative joint disease, can not be reasonably disassociated from his military service. CONCLUSION OF LAW Residuals of a right ankle injury, diagnosed as degenerative joint disease, were incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2009). Service connection may also 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Historically, the Veteran served in the Air Force from March 1948 to February 1952. A review of his service treatment records revealed treatment for a traumatic right ankle injury in October 1948. Physical examination revealed tenderness over the lateral malleolus and calcaneus fibular ligament. X-ray examination of the right ankle was negative. The report noted that the Veteran's right ankle was to be placed in a walking cast for 10 days. A March 1949 treatment report indicated that the Veteran was placed on light duty due to an old ankle injury. He subsequently underwent nine whirlpool treatments for this condition in April 1949. A September 1951 treatment report noted that the Veteran was given an ace bandage and prescribed exercises for his right ankle. In August 2007, the Veteran filed a claim seeking service connection for residuals of pulled tendon/ligaments of the right ankle and heel. He contends that he injured his right ankle during service, and that this condition has continued to bother him over the years. In September 2008, a VA examination for joints was conducted. The VA examiner noted that the Veteran's claims folder had been reviewed. The Veteran reported that he has a current right ankle disability due to an inservice right ankle injury in October 1948. He denied seeking any treatment for this condition over the years. Physical examination revealed pain, stiffness and reduced motion in the right ankle. The VA examiner noted that this condition decreases the Veteran's ability to walk for enjoyment and for exercise. The Veteran also reported having some swelling. Abnormal shoe wear was noted bilaterally on the outside edges of the heels, "twice as much wear to the right heel than the left heel." X-ray examination of the right ankle revealed: [A] plantar and Achilles tendon spur from the calcaneus. Some fragmentation of the medial malleolus suggests old injury. There is dorsal degenerative spurring from the irregular superior aspect of the dorsal cuboid and adjacent distal dorsal navicular. The report concluded with a diagnosis of degenerative joint disease of the right ankle. The VA examiner then opined that it was "more likely than not that the current conditions occurred following release from active military service." In support of this opinion, the VA examiner incorrectly noted that there was only a single incident of inservice treatment for the Veteran's right ankle. A subsequent opinion was then obtained from the VA examiner, who now considered the additional inservice episodes of right ankle treatment following October 1948. Based upon a full review of the facts, the VA examiner opined that the issue could not be resolved without resorting to mere speculation. Based on the totality of the evidence, and with application of the benefit-of-the-doubt rule of 38 U.S.C.A. § 5107(b), the Board finds that the Veteran currently has residuals of a right ankle injury, diagnosed as degenerative joint disease, which was incurred during his active military service. The record confirms the Veteran injured his right ankle during service in October 1948. Moreover, subsequent service treatment records document additional and ongoing right ankle treatment for nearly three years, including March 1949, April 1949, and September 1951. In support of his claim, the Veteran contends that he has had ongoing right ankle pain, stiffness and swelling since his discharge from the service. Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005) (finding that the Veteran was competent to report hip disorder, pain, rotated foot). Finally, a current x-ray examination of the Veteran's right ankle revealed some fragmentation of the medial malleolus suggestive of an old injury. Given the documented inservice treatment, the credible statements by the Veteran herein, and the current physical findings which are suggestive of an old injury, service connection for residuals of a right ankle injury, diagnosed as degenerative joint disease, is warranted. ORDER Service connection for residuals of a right ankle injury, diagnosed as degenerative joint disease, is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs