Citation Nr: 1301734 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-27 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for the residuals of a right ankle disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel. INTRODUCTION The Veteran served on active duty from February 1996 to October 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In March 2012, the Veteran testified during a Video Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In the hearing, the case was not characterized as including a new and material evidence issue, however, there is no prejudice to the Veteran, as the claim is being reopened and will be considered on the merits. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. FINDINGS OF FACT 1. In an unappealed January 2006 rating decision, the RO denied the Veteran's claim for service connection for right ankle disability. The Veteran did not appeal this decision. 2. Evidence associated with the claims file since the January 2006 decision includes service medical records relevant to the claim for service connection for a right ankle disability. 3. A right ankle sprain and fracture were noted in service, the Veteran has credibly asserted continued right ankle disability since service, and a physician noted a nexus between the Veteran's current disability and his service. CONCLUSIONS OF LAW 1. Based on the submission of relevant service department records, VA may reconsider the claim for service connection for a right ankle injury. 38 C.F.R. §3.156(c). 2 . Service connection for a right ankle disability is warranted. 38 U.S.C.A. §§ 1110, 5017 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Given the favorable disposition of the claim for service connection for right ankle disability, and the favorable disposition of the claim for service connection on the merits, the Board finds that all notification and development actions needed to adjudicate fairly these matters have been accomplished. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from 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). In a January 2006 rating decision, the RO denied service connection for a right ankle disability. Although notified of this denial in a letter the same month, the Veteran did not initiate an appeal. See 38 C.F.R. §20.200. The RO's January 2006 denial of the claim is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. After several attempts, VA was unable to locate and obtain the Veteran's service treatment records (STRs), and thus this evidence was not of record at the time of the January 2006 rating decision. Since then, however, the records were obtained. The service records contain several entries which are relevant to the claim for a right ankle disorder. Therefore, pursuant to 38 C.F.R. 3.156(c), the VA may reconsider the claim. In adjudicating a claim for VA benefits, VA is responsible for determining whether service connection is warranted for a disability. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for a right ankle disability is warranted. The Veteran's service treatment records reflect that he was treated for a right ankle sprain following a basketball injury in August 1997. The examiner noted that the sprain was moderately severe and X-ray images showed a small fracture to the right ankle. The Veteran was casted and was not weight bearing for some time. A record dated in September 1997 reports that the Veteran had a resolving right ankle fracture with residual swelling. The STRs show continued follow-up appointments regarding his right ankle. These records noted continued right ankle pain. On separation in September 1999, the Veteran reported continued tightness and pain in his ankle and stated that he was still unable to move his ankle in a circular motion. He expressed concern over how to "fix" his ankle. The Board notes that the separation examination was normal, including normal feet and joints. The Board further notes that the Veteran's entrance examination was normal. Following service, VA treatment records from 2007-2010 reveal the Veteran's continued complaints of discomfort since his right ankle injury in service. A December 2008 treatment record and X-ray report revealed irregularities of the ankle consistent with the Veteran's given trauma history. The physician stated that the Veteran's condition was more likely than not related to service. In July 2010, the Veteran received a magnetic resonance imagery study (MRI) of his right ankle. He was diagnosed with tendinitis of this ankle. The report noted no evidence of a current fracture or dislocation. The Veteran received a VA examination in May 2011. The examiner noted that the Veteran walked with an abnormal gait, likely because of the right ankle, but that there was no guarding of movement, no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment and drainage. The examiner also noted that there was no subluxation or ankylosis. Upon examination of the right ankle, the examiner noted that the joint function is not limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The examiner diagnosed the Veteran with a calcaneal spur of the right foot. He stated that because the only abnormality is this spur, he is unable to render an opinion as to whether the Veteran's ankle disability is related to his service. During the Veteran's March 2012 Board hearing, the Veteran reported a continuation of chronic right ankle pain and instability since his injury while playing basketball in service. He stated that he noted this sprain/fracture on his separation report of medical history. He further stated that he has received treatment for his disability after service at the VA. The foregoing medical and lay evidence supports finding that the Veteran developed a right ankle disability during active service, and that he has experienced problems with his right ankle continuously ever since. The Veteran is competent to report his own symptoms, especially when the circumstance of the incurrence are consistent with his military record and history. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). In this case, the record clearly reflects that the Veteran initially injured his right ankle in service and that the residuals of this injury have affected him since service. Further, a December 2008 record reflects a medical opinion linking the Veteran's current disability to his injury in service. The Board acknowledges the opinion of the VA examiner to the effect that he could not comment as to the etiology of the Veteran's right ankle disability and could only diagnose the Veteran with a calcaneal spur. The Board notes though that this examination does not reveal whether the examiner considered the Veteran's STRs, which were previously unavailable, and whether he conducted a complete review of all of the Veteran's treatment records, to include the nexus opinion provided in the December 2008 VA treatment record. Instead, under medical record review, the examiner only noted one record which was reviewed. Thus, the Board finds that there is sufficient evidence to establish the onset of right ankle disability, the continuity of this disability, and the connection of the Veteran's current disability to service. The criteria for service connection for right ankle disability are met. ORDER Service connection for right ankle disability is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs