Citation Nr: 1304585	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  08-37 443	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for residuals of a left ankle fracture.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel


INTRODUCTION

The Veteran served on active duty from September 1982 to July 1986.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claim of entitlement to service connection for residuals of a left ankle fracture.

In July 2012, the Veteran and his representative appeared at the RO to present oral testimony and arguments in support of his appeal before the undersigned traveling Veterans Law Judge.  A transcript of this hearing has been obtained and associated with the Veteran's claims file for the Board's review and consideration.


FINDINGS OF FACT

The Veteran's current left ankle degenerative joint disease, manifested by symptoms that include recurring joint pain and swelling, is a chronic residual of a left ankle fracture, which was sustained in active military service. 


CONCLUSION OF LAW

A left ankle fracture was incurred in active duty, resulting in chronic residual left ankle degenerative joint disease with recurrent joint pain and swelling.  38 U.S.C.A. §§ 1111, 1112, 1113, 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).      


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As will be further discussed below, the Veteran's claim of entitlement to service connection for residuals of a left ankle fracture is being granted in full.  Therefore, the Board finds that any error related to VA's duties to notify and assist under the Veterans Claims Assistance of Act of 2000 (VCAA) (Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) with regard to the claim is rendered moot by this fully favorable decision.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159 (2011); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thusly, there is no need to engage in any analysis with respect to whether the requirements of the VCAA and VA's duties to notify and assist have been satisfied concerning the appeal of this issue.

Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein.  This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.  38 C.F.R. § 3.303(a) (2012).

Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 C.F.R. § 3.102 (2012).

To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).

As relevant, the Veteran's service medical records show normal orthopedic findings on pre-induction examination of his lower extremities and musculoskeletal system in June 1982.  He entered active duty in September 1982.  During active duty, in July 1985, he sustained a left ankle injury after losing his footing on a flight of stairs, resulting in complaints of joint pain and swelling.  Physical examination and X-rays confirmed a closed fracture of his left distal fibula and lateral malleolus.  A cast was applied to immobilize the left ankle.  In September 1985, the cast was removed and the fracture was re-examined.  X-rays revealed satisfactory positioning of the fractured bones and good callus formation.  He was diagnosed with a healed fracture and returned to full duty.  The Veteran was discharged from active service in July 1986.

The Veteran filed his original claim for VA compensation for residuals of a left ankle fracture in August 2006.  Evidence submitted in support of his claim included VA treatment records dated 2006 - 2008, which show treatment for complaints of chronic left ankle pain.  X-ray films in 2006 revealed multiple calcific densities in the medial aspect of the left ankle that appeared to be consistent with and due to previous avulsion injuries involving the tibia and talus.  No acute fracture or dislocation was presently detected.  Some spurring of the anterior and posterior tibiotalar joint was observed, as was an inferior calcaneal spur and some degenerative changes in the mid-foot region.  

In a February 2007 treatment note for left ankle pain, the Veteran's primary care physician at VA observed that left ankle X-rays supported a diagnosis of degenerative joint disease (DJD) and evidence of a previous injury.  In a February 2007 letter, the VA physician presented the following nexus opinion:

I am writing this. . . on behalf [of the Veteran] regarding his previous left ankle fracture injury while on active duty.  [He] continues to have chronic intermittent left ankle pain since [this prior] injury.  X-rays done December. . . 2006 show evidence of previous avulsion injury from the medial side.  Also, there are degenerate changes in the anterior and posterior tibiotalar joint and a calcaneal spur.  In my medical opinion, it is as least likely as not that the [Veteran's] left ankle pain is related to the previous fracture sustained during active military service.

In written correspondence submitted in support of his claim, and in his oral hearing testimony before the Board in July 2012, the Veteran presented statements attesting to onset of a left ankle fracture in military service and continuity of left ankle pain and swelling since then, with no intercurrent post-service left ankle injury.  The Board finds the Veteran to be competent to present an account of his perceived onset of left ankle symptoms.  Furthermore, his reported history of having onset of such symptoms during active duty and continuing on through to the present day is deemed to be credible for purposes of establishing chronicity of painful left ankle symptomatology.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The Board has considered the above evidence.  Although there are some slight discrepancies regarding the exact location of the left ankle fracture site noted in service (i.e., the distal left tibia and lateral malleolus) versus the 2006 X-ray report showing what appeared to be an old avulsion injury at the medial aspect of the left ankle involving the tibia and talus, the fact remains that the Veteran's primary care physician has considered the Veteran's history of a left ankle fracture in service in the early 1980s (which is undisputed and a matter of clinical record) and has determined that it is at least as likely as not that the Veteran's current left ankle DJD with pain and swelling are residuals of this documented in-service injury.  Therefore, resolving any doubt that may exist in the Veteran's favor, his claim of entitlement to VA compensation for residuals of a left ankle fracture will be allowed.  38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Service connection for left ankle DJD with chronic joint pain and swelling as residuals of a left ankle fracture is thusly granted.
 

ORDER

Service connection for left ankle DJD with chronic joint pain and swelling as residuals of a left ankle fracture is granted. 



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs