Citation Nr: 1038037	
Decision Date: 10/07/10    Archive Date: 10/15/10

DOCKET NO.  06-16 740	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, 
Rhode Island


THE ISSUE

Entitlement to service connection for a right ankle disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Jebby Rasputnis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1955 to April 1957.

This matter was last before the Board of Veterans' Appeals 
(Board) in July 2009, on appeal of a January 2006 rating decision 
of the Providence, Rhode Island Regional Office (RO) of the 
Department of Veterans Affairs (VA).  The Board remanded the 
claim in May 2009 for the provision of a VA examination and 
additional notice to the Veteran; in July 2009 the claim was 
remanded again for the requested examination.


FINDINGS OF FACT

1.  The Veteran has an old healed fracture of the medial 
malleolous of the right ankle which results in some pain and mild 
limitation of motion.

2.  The Veteran fractured his ankle prior to service, but 
experienced pain and swelling of the ankle in service due to 
performance of his duties.

3.  The Veteran's pre-existing right ankle injury was aggravated 
by active duty service.


CONCLUSION OF LAW

The criteria for service connection for a right ankle disability 
have been approximated.  38 U.S.C.A §§ 1110, 1131, 5107 (West 
2002 and Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Assist and Notify

The Board has considered the Veterans Claims Assistance Act of 
2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 
5106, 5107, 5126 (West 2002 & Supp. 2009), and implemented by 38 
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).  Under the 
VCAA, VA has a duty to notify the Veteran of any information and 
evidence needed to substantiate and complete a claim.  

As the Board has granted the full benefit sought with respect to 
the issue decided on appeal, there is no prejudice to the Veteran 
under VA's duties to notify and assist.  As such, any error in 
the sequence of events or content of the notice is not shown to 
have affected the essential fairness of the adjudication or to 
cause injury to the claimant.  See Shinseki v. Sanders, 129 S. 
Ct. 1696 (2009).

Service Connection Claim

The Veteran seeks service connection for a right ankle 
disability, claimed as a pre-existing injury that was aggravated 
by his service.  Specifically, he contends, through his 
authorized representative, that he broke his ankle prior to 
service, but re-injured it during service while parachuting and 
subsequently experienced pain. 

The benefit of the doubt rule provides that a veteran will 
prevail in a case where the positive evidence is in a relative 
balance with the negative evidence.  Therefore, a veteran 
prevails in a claim when (1) the weight of the evidence supports 
the claim or (2) when the evidence is in equipoise.  It is only 
when the weight of the evidence is against a veteran's claim that 
the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 
3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Having carefully considered the Veteran's contentions in light of 
the evidence of record and the applicable law, the Board finds 
that the weight of such evidence is in approximate balance and 
the claim will be granted on this basis.  38 U.S.C.A. § 5107(b); 
Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. 
App. 413 (1993) (Under the "benefit-of-the-doubt" rule, where 
there exists "an approximate balance of positive and negative 
evidence regarding the merits of an issue material to the 
determination of the matter," the claimant shall prevail upon the 
issue).


In general, service connection may be granted for disability or 
injury incurred in or aggravated by active military service. 38 
U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2009).  
Service connection may also be granted for disability shown after 
service, when all of the evidence, including that pertinent to 
service, shows that it was incurred in service.  38 C.F.R. § 
3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992).

Establishing service connection generally requires (1) medical 
evidence of a current disability; (2) medical or, in certain 
circumstances, lay evidence of in-service incurrence or 
aggravation of a disease or injury; and (3) medical evidence of a 
nexus between the claimed in-service disease or injury and the 
present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 
(Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 
(1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see 
also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 
Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.  

Demonstration of continuity of symptomatology is an alternative 
method of establishing the second and third Shedden/Caluza 
element under 38 C.F.R. § 3.303(b).  Barr v. Nicholson, 21 Vet. 
App. 303 (2007); see Savage v. Brown, 10 Vet. App. 488, 495-97 
(1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  

Continuity of symptomatology may be established if a claimant can 
demonstrate (1) that a condition was "noted" during service; 
(2) evidence of post-service continuity of the same 
symptomatology; and (3) medical or, in certain circumstances, lay 
evidence of a nexus between the present disability and the post-
service symptomatology.  Savage, 10 Vet. App. at 495-96; see 
Hickson, 12 Vet. App. at 253 (lay evidence of in-service 
incurrence sufficient in some circumstances for purposes of 
establishing service connection); 38 C.F.R. § 3.303(b).

Generally, veterans are presumed to have entered service in sound 
health condition.  See 38 U.S.C.A. § 1111 (West 2002).  The 
presumption of soundness provides that a veteran shall be taken 
to have been in sound condition when examined, accepted, and 
enrolled for service, except as to defects, infirmities, or 
disorders noted at the time of examination, acceptance, and 
enrollment, or where clear and unmistakable evidence demonstrates 
that the injury or disease existed before acceptance and 
enrollment or was aggravated by such service.  38 C.F.R. § 
3.304(b) (2009).

VA's General Counsel has held that to rebut the presumption of 
sound condition, VA must show by clear and unmistakable evidence 
both that the disease or injury existed prior to service and that 
the disease or injury was not aggravated by service.  The 
claimant is not required to show that the disease or injury 
increased in severity during service before VA's duty under the 
second prong of this rebuttal standard attaches.  See VAOPGCPREC 
3- 2003; see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 
2004).

The Veteran's service treatment records reflect that prior to 
induction, in March 1955, he was noted to have a prior fracture 
of his right ankle as the result of a 1951 injury.  As such, the 
presumption of soundness does not apply in regard to his right 
ankle and the Veteran must show that the disability increased in 
severity during service.  Id.

However, a pre-existing injury or disease will be considered to 
have been aggravated by active service where there is an increase 
in disability during such service, unless clear and unmistakable 
evidence shows that the increase in disability is due to the 
natural progress of the disease.  See 38 U.S.C.A. § 1153 (West 
2002); 38 C.F.R. § 3.306 (2009).  "Clear and unmistakable 
evidence" is a more formidable evidentiary burden than the 
preponderance of the evidence standard.  See Vanerson v. West, 12 
Vet. App. 254, 258 (1999).  It is an "onerous" evidentiary 
standard, requiring that the preexistence of a condition and the 
no-aggravation result be "undebatable."  See Cotant v. West, 17 
Vet. App. 116, 131 (2003) ((citing Laposky v. Brown, 4 Vet. App. 
331, 334 (1993)).

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.  See 38 
U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2009).  
A finding of aggravation is not appropriate in cases where the 
evidence specifically shows that the increase is due to the 
natural progress of the disease.  Furthermore, temporary or 
intermittent flare-ups of a pre-existing disease during service 
are not sufficient to be considered aggravation of the disease 
unless the underlying condition, as contrasted to symptoms, 
worsens.  See Jensen v. Brown, 4 Vet. App. 304, 306- 07 (1993); 
Hunt v. Derwinski, 1 Vet. App. 292 (1991).  If the disorder 
becomes worse during service and then improves due to in-service 
treatment to the point that it was no more disabling than it was 
at entrance into service, the disorder is not presumed to have 
been aggravated by service.  Verdon v. Brown, 8 Vet. App. 529 
(1996).

In September 1955, the Veteran was evaluated to determine whether 
or not he was physically qualified for airborne training.  
Although the record shows that he was physically disqualified 
from such training, he subsequently earned the parachutists 
badge.  

In October 1955, the Veteran reported for treatment of pain in 
his right ankle after a parachuting jump.  In December 1955, an 
x-ray revealed the pre-existing healed fracture; an orthopedic 
treatment note states that there was a mass on his ankle, he was 
experiencing pain after the October 1955 parachute jump, and that 
he was prohibited from parachuting.  In February 1956, the 
Veteran again reported for treatment of pain in his right ankle.  
In June 1956, the Veteran was seen again for right ankle 
complaints and was noted to have tenderness to palpation.

In October 1958, a physician submitted a statement to VA that he 
treated the Veteran in September 1958 for pain and swelling of 
the right foot and ankle.  An x-ray showed an un-united fracture 
of the internal mallelous.

In October 2005, the Veteran received a private x-ray that showed 
no evidence of recent fracture, but a corticated bone density 
that was noted to be either a subtibial ossicle or an 
incompletely united fracture of the medial malleolous.  An 
October 2005 private treatment note describes the x-ray as 
showing an old fracture with probable traumatic arthritis.

The Veteran submitted a claim for service connection to VA in 
October 2005 stating that he fractured his ankle in service as 
the result of a parachute jump.  A February 2007 private 
physician submitted an opinion to VA stating that the Veteran's 
current injuries were causally related to an in-service training 
accident.

In November 2009, the Veteran was afforded a VA examination of 
his right ankle.  The examiner noted that the Veteran was able to 
ambulate without difficulty, but there was evidence of self-use 
of an elastic ankle band.  The Veteran did not have any palpable 
tenderness, but his range of motion was zero to 15 degrees of 
dorsiflexion with slight discomfort and plantar flexion of zero 
to 45 degrees; for VA purposes, normal plantar flexion of the 
ankle is from 0 to 45 degrees and normal dorsiflexion of the 
ankle is from 0 to 20 degrees.  38 C.F.R. § 4.71a, Plate II 
(2009).  The Veteran reported progressive ankle pain that had 
interfered with prior employment, but the examiner noted no 
apparent functional impairment upon physical examination.  Upon 
x-ray examination, the examiner diagnosed an old, healed fracture 
of the medial malleolus.

As noted, a pre-existing injury or disease will be considered to 
have been aggravated by active service where there is an increase 
in disability during such service, unless clear and unmistakable 
evidence shows that the increase in disability is due to the 
natural progress of the disease.  See 38 U.S.C.A. § 1153 (West 
2002); 38 C.F.R. § 3.306.  Here, service treatment records show 
that the Veteran was admitted to service with evidence of a 
healed right ankle fracture.  Although he did not pass a physical 
qualification examination for airborne training, he was allowed 
to train as a parachutist and injured his right ankle during an 
October 1955 jump.  He was observed to have a mass on his right 
ankle and complained of increased ankle pain on three (3) 
subsequent occasions during service.  He was seen by a private 
physician for complaints of ankle pain and swelling approximately 
one (1) year and five (5) months after service.

Due to the Veteran's in-service treatment record and post-service 
1958 treatment, the Board finds that it is at least debatable 
whether or not his pre-existing ankle disability underwent 
aggravation during service.  See Cotant, 17 Vet. App. at 131.

Although the 2009 VA examiner noted no apparent functional 
limitation of the right ankle and only "mild" limited motion, 
even when a claimant is diagnosed with a disability and the 
severity of the disability lessens (even to the extent that it no 
longer impairs the claimant), a grant of service connection may 
be nonetheless appropriate if it is otherwise found to be linked 
by competent evidence or applicable presumption to some incident 
of military service.  Ferenc v. Nicholson, 20 Vet. App. 58 (2006) 
(discussing the distinction in the terms "compensation," 
"rating," and "service connection" as, although related, each 
having a distinct meaning as specified by Congress).  The 
question of severity is one of rating, not of service connection.  
Id.

There can be no doubt that further medical inquiry could be 
undertaken with a view towards development of the claim.  
However, under the "benefit-of-the-doubt" rule, where there 
exists "an approximate balance of positive and negative evidence 
regarding the merits of an issue material to the determination of 
the matter," the Veteran shall prevail upon the issue. Ashley v. 
Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 
Vet. App. 204, 206-207 (1994).

The mandate to accord the benefit of the doubt is triggered when 
the evidence has reached such a stage of balance.  In this 
matter, the Board is of the opinion that this point has been 
attained.  Because a state of relative equipoise has been reached 
in this case, the benefit of the doubt rule will therefore be 
applied.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); 
Brown v. Brown, 5 Vet. App. 413, 421 (1993). 

As there is not clear and unmistakable evidence showing that the 
in-service increase in disability is due to natural progression 
(38 U.S.C.A. § 1153; 38 C.F.R. § 3.306) and the 1958 medical 
record reflects that the right ankle disability did not undergo 
both worsening and improvement during service to the point that 
it was no more disabling than it was at entrance into service 
(Verdon, 8 Vet. App. 529), the Board finds that, under the 
benefit-of-the-doubt rule, the Veteran is entitled to service 
connection for a right ankle disability.  

The claim is therefore granted, and the RO will determine an 
appropriate disability rating.  


ORDER

Service connection for a right ankle disability, on the basis of 
aggravation, is granted.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs