Citation Nr: 1322924 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-27 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for residuals of a right ankle injury. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active service from July 1999 to October 2003. He is a Veteran of the Persian Gulf War and he is a combat veteran, having earned the Combat Action Ribbon. This appeal arises to the Board of Veterans' Appeals (Board) from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that in pertinent part denied service connection for a right ankle sprain. A statement of the case (hereinafter: SOC) was issued in June 2010. In April 2011, the Veteran submitted new evidence directly to the Board along with a waiver of the Veteran's right to initial RO consideration of this evidence. Thus, a remand for issuance of a supplemental SOC will be not necessary. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The RO received a claim for service connection for the right ankle in April 2004. 2. In a December 2005 decision, the RO denied service connection for the right ankle. 3. At the time of the denial of service connection, VA had sufficient information available to identify and locate service department records relevant to the claim. 4. In an April 2009 rating decision, the RO reopened the service connection claim based, in part, on service department records received on July 31, 2007. 5. The Veteran is a combat veteran who has competently and credibly testified that he severely twisted his right ankle during combat. 6. A separation examination report clearly indicates a history of right ankle injuries with continued pain in the right ankle. 7. The current right ankle-related diagnosis is residual of right ankle strain. 8. Clear and unmistakable evidence to rebut the presumption of service connection has not been submitted. CONCLUSION OF LAW Residuals of a right ankle strain were incurred during active service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As set forth at 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims. Because the Board is granting the benefits 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. Reconsideration of a December 2005 RO Rating Decision As explained below, this case presents circumstances which will require VA to "reconsider" its December 2005 rating decision. The RO received the Veteran's original service connection claim for the right ankle in April 2004. In May 2004, the Veteran submitted copies of certain Service Treatment Reports (STRs) that he had accumulated. These STRs include an April 1999 enlistment examination report that reflects that the right ankle was sound at entry. These STRs also include three out-patient treatment reports that note treatment for a right ankle sprain during active service on December 1, 12, and 31, 2001. In August 2004, the National Personnel Records Center (hereinafter: NPRC) informed the RO that the only STR located so far was an enlistment examination report. Thereafter, VA examined the Veteran. In December 2005, the RO denied service connection for a right ankle injury. The Veteran commenced an appeal of that decision. The RO received additional STRs from NPRC on July 31, 2007. These records include a separation examination report and accompanying report of medical history questionnaire wherein the Veteran continued to report right ankle pains shortly before separation. These also include a December 12, 2001 STR that notes that the Veteran was to be admitted to the ward for three days, due to right lateral ankle strain and sprain. A subsequent, December 17, 2001 STR reflects that he was then discharged from the ward to his quarters. The RO issued a statement of the case (hereinafter: SOC) in September 2007 that discusses the newly received STRs, but continues the denial of service connection for the right ankle. In November 2007, the Veteran untimely submitted a VA Form 9, Appeal to the Board of Veterans' Appeals, and the RO closed the appeal for lack of timeliness. The RO did inform the Veteran, however, that his untimely November 2007 substantive appeal would be accepted as a claim to reopen the previously denied claim. In December 2008, the Veteran submitted additional STRs. These include the December 12, 2001 STR that notes that he was to be admitted to the ward for three days, due to right lateral ankle strain and sprain and a subsequent, December 17, 2001 STR that reflects that he was then discharged from the ward to his quarters. The RO had already received copies of these STRs from NPRC in July 2007. In an April 2009 rating decision, the RO reopened the right ankle service connection claim based on new and material evidence, but denied the claim on the merits. The Veteran appealed that decision to the Board. Under "usual" circumstances, because the substantive appeal received in November 2007 was untimely, the December 2005 decision would have become final and binding, i.e, not subject to revision unless it is shown to be based on clear and unmistakable error (hereinafter: CUE). 38 C.F.R. § 3.105 (a); see also 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.400(k); Best v Brown, 10 Vet. App. 322 (1997). The Veteran has not asserted that the December 2005 RO decision is based on CUE. While CUE is not asserted, this case presents other circumstances, which will require VA to "reconsider" the December 2005 rating decision. Under § 3.156(c)(1), "if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." In this subsection, the Secretary includes a non-exhaustive list of records that could constitute official service department records. Id. This list includes, "Service records that are related to a claimed inservice...injury..." The Veteran's STRs that report a right ankle injury are certainly "service records that are related to a claimed inservice injury." The applicability of the regulation is tempered by subsection (c) (2), which provides that § 3.156(c) (1) "does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim" or because the claimant did not "provide sufficient information for VA to identify and obtain the records." 38 C.F.R. § 3.156(c)(2). In this case, VA possessed, at the time it initially denied the claim in December 2005, the Veteran's dates of service, evidence that he incurred and was treated for a right ankle injury during active service, and evidence that he was a combat veteran who claimed a right ankle injury during combat. In short, the relevant STRs did exist when the Veteran applied for service connection and VA's failure to obtain the relevant STRs prior to making a decision on the claim is not due to any failure on the Veteran's part to provide sufficient information. Based on the foregoing, § 3.156(c) must be applied and VA must reconsider the original claim. The STRs received in July 2007, and again submitted by the Veteran in December 2008, reflect that the first in-service right ankle injury in December 2001 required nearly 5-days of hospitalization. This new evidence is/are service records related to a claimed in-service event, injury, or disease, and is sufficient to trigger reconsideration of the original claim. Under these circumstances, the December 2005 rating decision must be reconsidered. Service Connection for the Right Ankle Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). 38 C.F.R. § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." See also Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). While presumptive service connection for undiagnosed illnesses is potentially available to this Persian Gulf War Veteran, the claimed right ankle disability carries a diagnosis of right ankle strain. Because a diagnosis has been offered, further consideration of service connection for right ankle pains due to undiagnosed illness does not appear to be appropriate. Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of 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 (West 2002); 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b). Because the Veteran earned the Combat Action Ribbon and has asserted that he injured the right ankle in combat, he must be afforded consideration under 38 U.S.C.A. § 1154(b). This consideration will be addressed in greater detail below. The Veteran's STRs reflect a right ankle injury in December 2001. Although no fracture was shown, there was pain and swelling, which required about 5-days of hospitalization. The Veteran claimed a second twisting injury to the right ankle, sustained during combat, that he felt was even more serious than the December 2001 ankle injury. He testified that he received no treatment beyond the dispensing of anti-inflammatory medication for that second right ankle injury. His separation examination report clearly indicates continued right ankle pain due to, "S /P sprain X 2 R ankle." Thus, the STRs clearly acknowledge a history of two right ankle injuries with continued sprain at the time of the separation examination. The claims files reflect that the Veteran submitted his claim for service connection for the right ankle in April 2004, about six months after separating from active service. An August 2004 VA out-patient treatment report briefly mentions ankle pain. An October 2004 VA general medical compensation examination report briefly mentions ongoing right ankle pain dating back to active service. An October 2004 VA orthopedic compensation examination report, unfortunately, makes no mention of the right ankle claim. In a July 2005 inquiry about the status of his right ankle claim, the Veteran reported a right ankle injury aboard ship in December 2001 and a second right ankle injury in Iraq in March 2003 while in combat for which he was unable to obtain medical treatment. He reported recent treatment at the Fayetteville VA Medical Center. An August 2007 VA orthopedic compensation examination report reflects that the Veteran reported a recent left ankle injury at his civilian job. This post-service injury occurred 2 years prior. The examiner noted that right ankle X-rays were normal, but that there was painful right ankle motion. The "Diagnosis or Etiology of The Problem" offered appears simply as "Strains." The examiner offered a summary opinion addressing the etiology of knee pains, but did not mention the etiology of right ankle pain. In his November 2007 substantive appeal, the Veteran reported continued right ankle pains. In March 2009, VA examined the right ankle. The examiner found the right ankle to be tender and disabled by flare-ups of degenerative joint disease that occurred weekly. Moreover, upon testing the right ankle's range of motion, the examiner found nearly full range of motion, but later in the report the examiner modified that finding, explaining that the right ankle was actually fixed in ankylosis. Plantar flexion was limited to 5 degrees and dorsiflexion was limited to 10 degrees. The diagnosis was residual of right ankle strain. X-rays of the right ankle were normal. When asked to address the likelihood of a relationship between the current right ankle condition and the active service injury, the examiner replied, "I cannot resolve this issue without resorting to mere speculation. Right ankle X-rays are without pathology. Very well could be from weight and gait changes with left ankle injuries and surgeries (workers comp)." In a June 2010 pleading, the Veteran insisted that current right ankle pain was caused by a severe strain during active service. In April 2011, the Veteran testified before the undersigned that he had no right ankle pain prior to active service. Since active service, he has had right ankle pains and a little swelling, usually every day. He testified that he receives all treatment through VA. He recalled that he twisted the right ankle while he was firing artillery toward Bagdad. He submitted a written statement from L. W. to the effect that his right ankle problem has been noticeable ever since his return from active service. The Board must address the competency, credibility, and probative value of the lay evidence. 38 U.S.C.A. § 7104(d)(1) (West 2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The lay evidence of record is competent with respect to observance of symptoms readily observable and it is credible, as there is no indication of lack of veracity. Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). While medical expertise is normally required to offer a diagnosis or etiology opinion, there are exceptions to the rule. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). The Board finds that the Veteran is competent to offer a diagnosis of a severely twisted right ankle during active service. His testimony supports a later diagnosis by a medical professional. In the case of a combat veteran who alleges that a disease or injury is service connected, the burden of the veteran who seeks benefits for an allegedly service-connected disease or injury and who alleges that the disease or injury was incurred in or aggravated by combat service is lightened by 38 U.S.C.A. § 1154(b). That statute sets forth a three-step analysis. First, it must be determined whether there is satisfactory, lay or other evidence of service incurrence or aggravation of such injury or disease. Second, it must be determined whether the evidence is consistent with the circumstances, conditions, or hardships of such service. If these two inquiries are met, the Secretary shall accept the Veteran's evidence as sufficient proof of service connection, even if no official record of such incurrence exists. As stressed by the Federal Circuit, where both of these inquiries are satisfied, a factual presumption arises that the alleged injury or disease is service connected. In the third step, it must be determined whether the Government has met its burden of rebutting the presumption of service connection by "clear and convincing evidence to the contrary." Collette v. Brown, 82 F.3d 389, 393 (1996). Concerning the first two steps, the Veteran is clearly a combat veteran whose assertions are sufficient to establish that he sustained right ankle trauma during combat, even though there is little official record of the fact. Id. He has proffered satisfactory lay evidence of service incurrence and his evidence for this fact is consistent with the circumstances, conditions, or hardships of such service. "If a Veteran satisfies both of these inquiries, mandated by statute, a factual presumption arises that the alleged injury or disease is service-connected." Id. In Dambach v. Gober, 223 F.3d 1376, 1381 (Fed. Cir. 2000), the Federal Circuit stressed that where a Veteran produces evidence of symptomatic manifestations during or proximate to combat, aggravation or incurrence will be established, citing Jensen v. Brown, 19 F.3d 1413, 1416-17 (Fed. Cir. 1994). Then, the burden shifts to the government to rebut the presumption of service connection. Moreover, clear and unmistakable evidence is required for rebuttal. Id. The issue now becomes whether there is clear and unmistakable evidence that the current right ankle disorder is not related to trauma during combat. While the VA examiner's refusal to speculate on the requested matter in March 2009, might, or might not, rise to the level of relative equipoise, relative equipoise is not the legal standard of proof required of a combat Veteran who has proffered satisfactory lay evidence of service incurrence and that evidence is found to be consistent with the circumstances, conditions, or hardships of such service. As noted in Dambach, where a Veteran has produced evidence of symptomatic manifestations during or proximate to combat, aggravation or incurrence will be established unless the government rebuts the presumption by clear and unmistakable evidence. No clear and unmistakable evidence to rebut the service connection presumption has been submitted in this case. While there is evidence that the Veteran had post-service trauma to his legs and weight gain, this does not clearly and unmistakably dissociate any current right ankle disorder from a combat injury, in part, because the record clearly shows that his right ankle complaints and service connection claim for such pre-date any post service trauma to the legs and also predate his post-service weight gain. After considering all the evidence of record, including the testimony, the Board finds that the evidence favors the claim. Service connection for residuals of a right ankle strain must therefore be granted. ORDER Entitlement to service connection for residuals of a right ankle strain is granted. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs