Citation Nr: 1237786 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 10-23 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for residuals of a right ankle injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought on appeal. The denial was confirmed in January 2009. The Veteran filed a notice of disagreement in March 2009. A statement of the case was issued in March 2010. The Veteran perfected his appeal in May 2010. The issue on appeal has been recharacterized in order to afford the Veteran the broadest scope of review. FINDINGS OF FACT 1. There is credible lay evidence that the claimed in-service right ankle injury occurred. 2. The Veteran has been diagnosed with arthritic changes of the right foot and calcaneal spur. 3. Affording the Veteran all reasonable doubt, the Veteran's arthritic changes of the right foot and calcaneal spur are related to the in-service injury. CONCLUSION OF LAW The Veteran does have residuals of a right ankle injury, including arthritis, which was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. § 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). To the extent that the action taken herein below is favorable to the Veteran, the Board finds that further discussion of VCAA is not required at this time. II. Criteria The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of at least 10 percent within one 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). III. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record (which does not contain any additional pertinent information). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he is entitled to service connection for residuals of a right ankle injury. Specifically, he asserts that he was a combat engineer and fractured his right ankle in 1967 when he jumped from a truck during an ambush in the Republic of Vietnam (RVN). The Veteran further contends that his lower right extremity was casted for approximately one and half months. He maintains that since the injury he has intermittently suffered from pain, swelling, and instability. The Board has considered the Veteran's contentions in light of the evidence of record and the applicable law, and finds that the weight of such evidence is at least in approximate balance, and the Board therefore will grant service connection for residuals of a right ankle injury. 38 U.S.C.A § 5107(b) (West 2002); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (observing that 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 this regard, the Veteran's DD-214 confirms he was a combat engineer. For his service, he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal. The Veteran's service treatment records are negative for a right ankle fracture; however, it appears that his record may not be complete. In July 2008, the RO notified the National Personnel Records Center (NPRC) that they only had a portion of the Veteran's service treatment records and asked for any additional records in their possession. The Veteran indicated that he had no records in his possession. See response dated in July 2008. In August 2008, NPRC indicated that all records for the Veteran were sent to the Roanoke RO in February 2008. In September 2008, the RO attempted to obtain additional records from the Roanoke RO, but there is no response to their request in the record. The Board finds no prejudice to the Veteran in not seeking any additional service treatment records in light of the favorable decision. The Veteran submitted a picture of himself in cast dated March 1967. The picture clearly shows a soldier with a cast on his right lower extremity. The soldier was in an encampment and there were military trucks in the background. He submitted later photos dated in August 1968 to show it was the same person (himself). The Board has no reason to doubt the authenticity of these photos or the Veteran's statements that it was himself in the photos. In an October 2008 statement, the Veteran's sister indicated that while the Veteran was in RVN they received word that he was injured with a broken ankle. She stated that she was informed that he had injured his ankle when he jumped off a truck that came under enemy fire. She said that the Veteran's ankle was set with a cast and he sent a picture of himself with a cast. A notarized statement received in March 2009 from FGR indicated he served with the Veteran in the Combat Engineer Battalion and remembered that the Veteran had gotten hurt falling off a truck during an ambush. He stated that while at the time he did not know it was the Veteran, he recalls the incident, and finally found out it was the Veteran when he answered a posting on the Vietnam Veterans website. Post-service, the Veteran has been diagnosed with arthritic changes of the right foot and a calcaneal spur by x-ray. In a December 2007 letter from Dr. GH, he indicates the Veteran was a patient he treated for right ankle discomfort and pain with walking. The Veteran indicated this condition was of many years duration. Dr. GH further indicated the Veteran related a prior history of right ankle trauma while serving in the military. In July 2008, Dr. GH opined the Veteran's arthritis and calcaneal spur was at least as likely as not caused from his previous trauma in the military. The Veteran was not afforded a VA examination and there is no contradictory evidence in the record. Though the service treatment records available do not contain evidence of the right ankle trauma and/or fracture, the Board finds the Veteran's statements regarding falling off a truck during an ambush consistent with circumstances of his service (combat engineer in RVN) especially in light of the lay statements in support of his claim and the photograph of the Veteran dated in March 1967 showing his right leg in a cast. See 38 U.S.C.A. § 1154. Given the credibility of the lay evidence, the Board finds the opinion of Dr. GH probative of the matter on appeal. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches, as is true of any evidence, the credibility and weight to the attached medical opinions are within the province of the Board). Based on the evidence of record, there can be no doubt that further inquiry could be undertaken with a view towards development of the claim. Specifically, ordering a VA examination or following up with the Roanoke RO as to the existence of any additional service treatment records; 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. The Veteran has been diagnosed with arthritic changes of the right foot and calcaneal spur. There is credible lay evidence that the claimed in-service right ankle injury occurred. The Veteran's physician has determined there is a link between the Veteran's arthritic changes and residual symptoms and the-in-service injury. 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). Hence, service connection for residuals of a right ankle injury is warranted. ORDER Entitlement to service connection for residuals of a right ankle injury is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs