Citation Nr: 1321469 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 04-19 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for residuals of a right ankle sprain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1968 to October 1972, and thereafter had additional service (with periods of active duty for training (ACDUTRA)) in the Montana Air National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision by the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). In January 2007, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In June 2007, September 2011 and October 2012, the case was remanded for additional development. In April 2013, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). FINDING OF FACT The Veteran is shown to have a right ankle disability that stems from an injury sustained during a period of ACDUTRA. CONCLUSION OF LAW Service connection for residuals of a right ankle sprain is warranted. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist omission is harmless. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file and Virtual VA (VA's electronic data storage system) (no pertinent evidence was found in Virtual VA) with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially 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). To substantiate a claim of service connection, there must be evidence of a current disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran sustained an ankle injury while serving in the Montana Air National Guard in 1982. A member of the National Guard serves in the federal military only when formally called into the military service of the United States. At all other times, a member of the National Guard serves solely as a member of the State militia under the command of a state governor. To have basic eligibility as a veteran based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service under 32 U.S.C. §§ 316, 502, 503, 504, 505. 38 C.F.R. § 3.6(c), (d). Allen and Key v. Nicholson, 21 Vet. App. 54, 57 (2007) (citing Perpich v. Department of the Defense, 496 U.S. 334, 110 S.Ct. 2418, 110 L.Ed2d 312 (1990). For service in the National Guard only periods of federalized service, if any, are qualifying service for VA compensation benefits. Whether or not the Veteran's service at the time of the 1982 injury is qualifying for VA compensation benefits depends on whether or not it was federalized service. A DA Form 2173, Statement of Medical Examination and Duty Status, shows that the Veteran was on ACDUTRA under 32 U.S.C. § 503 (i.e., federalized service) when he sustained his 1982 ankle injury. A December 1969 service treatment record (STR) shows that a generator rolled over the Veteran's right foot. There was redness on the medial aspect of the right foot, but no evidence of a fracture. He was given a diagnosis of abrasion. In July 1972, the Veteran sustained injuries in a motorcycle accident. There was swelling in the lateral dorsum of the foot. X-rays were negative. The diagnosis was contusion of the foot; and he was placed on light duty. A July 26, 1972 Physical Profile Serial Report notes a right foot sprain. The Veteran was to avoid stair climbing or prolonged walking. He was to use crutches as needed. The Veteran's STRs note that during a period of ACDUTRA in June 1982 he was seen for a right ankle sprain sustained exiting from a stationary vehicle; that he arrived with an ace bandage; and that a cold pack was applied. In a November 1982 letter, the Veteran's private physician noted that x-rays in October 1982 revealed some osteoarthritis secondary to occult fracture that was thought to be a severe sprain that he sustained last year. At the videoconference hearing in January 2007 the Veteran testified that he had injured his ankle while on ACDUTRA. In November 2008, a VA examiner opined that there is insufficient evidence to state definitely when the Veteran experienced the avulsion fracture to the right ankle seen on a radiology report. The examiner noted that a 1982 radiology report shows an old avulsion, which was not present on 1969 films following the generator injury. This raised the likely scenario that the avulsion fracture likely took place while the Veteran was not on active duty. The examiner stated that the sprain in 1982 more likely than not resolved without sequelae as the medical records are silent for right ankle complaints until 2008. The Board found the November 2008 examination opinion to be inadequate, as it appeared to be based on a less than complete familiarity with the record. In October 2012, the Board remanded the claim for an examination to secure a nexus opinion. On November 2012 VA examination, the Veteran stated that the pain in the right foot began in 1970 after a pipe rolled over his right foot and worsened in 1971 after a motorcycle accident and in 1982 when he rolled his ankle after stepping from a vehicle into a gopher hole. After interviewing and examining the Veteran, the examiner opined that it is less likely than not that the Veteran's right ankle/foot pain is due to any trauma or treatment received during service from October 1968 to October 1972. The November 2012 nurse practitioner's opinion received was likewise found to be inadequate for rating purposes as the provider indicated (in essence) that there was no evidence of right foot/ankle disability prior to 2007 (when in fact a 1982 X-ray was interpreted as showing osteoarthritis secondary to an occult fracture) and did not acknowledge that the injury on ACDUTRA in 1982 was during a qualifying period of service (which the Board had specified in its remand). The opinion (as stated under #16 of the remarks section) was based on active service from October 1968 to October 1972 and did not encompass the 1982 injury on ACDUTRA. Consequently, the Board sought a VHA expert medical advisory opinion in this matter. In June 2013 the VHA expert (an orthopedist) opined that he believed that the December 1969 injury was minor, with no sequelae as there were no follow-up visits. It was noted that the Veteran was cleared for full duty in April 1970 when he was given an "all 1" profile. The expert also believed that a July 1972 injury was minor, as X-rays were "negative"; and the Veteran was given limited duty until August 4th and did not subsequently seek follow-up care. However, he believed that the June 1982 incident on annual Army National Guard training caused a severe sprain. He stated that this is consistent with the description of the injury; with the fact that swelling was noted, and with the Veteran continuing to have symptoms (as he sought care from Dr. Hunt, his private physician, in October 1982). The expert noted that the physical examination and history were limited. He further noted that x-rays were negative for fracture but showed a separate center of ossification below the tip of the lateral malleolus (which could represent a developmental anomaly, an accessory center of ossification or represent prior trauma of uncertain age). The trauma could have been avulsion fracture at the site of origin of a lateral ligament or secondary calcification with the scar. He stated that Dr. Hunt's statement that this was arthritis cannot be supported, and implication that the injury occurred in 1981 is conjecture. The fact that the Veteran sought care for ongoing symptoms four months post-injury suggested a significant injury. He opined that the Veteran was probably reassured by Dr. Hunt's explanation and did not seek specialty care since he probably decided that he could "live with" the symptoms. He stated that had the Veteran continued to complain, he probably would have been referred to a specialist in orthopedics or sports medicine, who would have reviewed the x-rays and considered obtaining an inversion stress view to document stability. Referral to physical therapy for strength and balance training would also have been reasonable. If the Veteran continued to complain a specialist would have considered surgical options and magnetic resonance imaging (MRI), and the Veteran might have been offered ligament reconstruction. The VHA expert summarized his opinion, indicating that in 1984, the Veteran enlisted in the Air Guard and did not mention ankle symptoms (which was understandable). He noted that the Veteran knew that to qualify for military retirement benefits through the Reserve or Guard, he would need 20 years of creditable service; therefore, he needed to continue in the Guard or Reserve. The expert noted that the Veteran wanted to be found physically qualified for enlistment and understandably might not bring up symptoms which could disqualify him or delay his enlistment unless he believed his symptoms would limit his ability to perform military duties. He noted that the Veteran's ongoing ankle symptoms are real and consistent with the described 1982 injury, physical examination and body habitus. He believed that the right ankle problems are more likely than not attributable to the injury incurred while ACDUTRA in 1982. The Board finds the opinion offered by the VHA expert based on a comprehensive review of the record to be probative evidence in this matter. It is by an orthopedist (who is eminently qualified to offer it) and reflects a thorough review of (and familiarity with) the entire record and familiarity with military life (as pertinent to the circumstances of this case). The opinion offered is accompanied by a detailed explanation of rationale, supported by references to factual data. As the Board had had found the opinions previously of record to be inadequate, the Board finds it persuasive. In summary, it is not in dispute that the Veteran now has a right ankle disability and that he sustained a right ankle injury during qualifying service. As the VHA expert's opinion establishes a nexus between the injury in service and the current ankle disability, all of the requirements for establishing service connection are met; service connection for residuals of a right ankle sprain is warranted. ORDER The appeal seeking service connection for residuals of a right ankle sprain is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs