Citation Nr: 1317264 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 09-42 212A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a left ankle disability, claimed as secondary to service-connected residuals of a right ankle sprain with degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active military service from March 1978 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Columbia, South Carolina. FINDING OF FACT Competent clinical evidence of record is in equipoise as to whether the Veteran's diagnosed left Achilles tendonitis, status post partial tear, is caused by his service-connected residuals of a right ankle sprain with degenerative joint disease. CONCLUSION OF LAW Chronic left Achilles tendonitis, status post partial tear, is proximately due to service-connected right ankle disability. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304. 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As set forth at 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), VA must notify claimants of the information and evidence necessary to substantiate their claims, and must assist claimants in obtaining evidence that might substantiate their claims. Here, because the Board is granting the benefit sought by the claimant, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995), Pond v. West, 12 Vet. App. 341 (1999). In addition, certain chronic diseases may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012). Disability which is proximately due to, or aggravated by, a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Here, the Veteran contends that he developed a left ankle disorder as a result of his service-connected residuals of right ankle sprain with degenerative joint disease. The Board notes that the Veteran has been diagnosed as having chronic Achilles tendonitis and partial tear in the left ankle. As such, the Board finds that the Veteran has a current disability as required by 38 C.F.R. § 3.303. A review of the Veteran's service treatment records reveals that he injured his left lower extremity playing basketball in October 1979. It was diagnosed as a left ankle sprain and indicated to be resolving. A review of the post-service treatment records reveals that the Veteran was not diagnosed as having tendonitis of the left Achilles tendon until 2007. A December 2007 treatment note diagnosed him as having a partial tear of the left leg Achilles tendon. He underwent Achilles tendon debridement with Achilles repair of the left heel in March 2008. The Veteran underwent additional left Achilles tendon surgery in April 2009. The Veteran was afforded a VA joints examination in May 2009, at which time he was diagnosed as having chronic Achilles tendonitis. The examiner opined that the Veteran's left ankle condition was less likely than not caused by or a result of his service-connected right ankle condition. The examiner explained that his conclusion was based on the fact that there was only one in-service entry related to the left ankle in October 1979, which showed a resolving left ankle sprain, with no other information during his active duty status to indicate ongoing problems with the left foot and ankle. However, this rationale only addressed direct causation and failed to explain why the examiner concluded that the left ankle condition was less likely than not caused by the service-connected right ankle condition. As such, the RO sought an addendum opinion from the May 2009 VA examiner. In a July 2009 VA addendum opinion, the examiner opined that there was no "causal effect relationship" between the Veteran's service-connected right ankle condition and his left ankle condition. The examiner's rationale was simply that these were entirely different conditions involving different areas of the body, "one on the right and one on the left." In correspondence dated in April 2010, the Veteran's private physician, who had been treating him since November 2006, opined that there was a greater than 50 percent chance that his currently-diagnosed Achilles tendonitis of the left ankle developed secondary to the many years of compensating for the numerous injuries to the service-connected right ankle condition. In correspondence dated in May 2010, another of the Veteran's private physicians, who had been treating him since 1989, opined that it was more likely than not that the Veteran's current problems were the result of initial injuries sustained in the military. The Board recognizes that the medical opinions of record are in disagreement as to the probable etiology of the Veteran's left ankle disorder. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011). Accordingly, with resolution of doubt in the Veteran's favor, the Board concludes service connection for left Achilles tendonitis, status post partial tear, must be granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a left Achilles tendonitis, status post partial tear, is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs