Citation Nr: 1330498	
Decision Date: 09/23/13    Archive Date: 09/30/13

DOCKET NO.  12-12 272	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for left ankle disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel


INTRODUCTION

The Veteran had active duty service from September 1951 to July 1953.

This matter is again before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  The Veteran testified at a Board hearing in September 2012.  This matter was remanded in November 2012 and April 2013.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's arthritis of the left ankle is causally related to his active duty service. 


CONCLUSION OF LAW

Arthritis of the left ankle was incurred in the Veteran's active duty service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  Service connection may also be granted for any disease 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).

Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310.  The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability.  Allen v. Brown, 7 Vet.App. 439 (1995).

It is unfortunate that not all of the Veteran's service treatment records are available.  It appears that a number of records were destroyed in the 1973 fire at the National Personnel Records Center.  However, the claimed injury to the left foot is not in question.  In fact, service connection has already been established for a deep cut on the left upper foot with scar and chronic edema.  The Veteran has testified that he suffered a puncture wound to the left foot while bathing in a river during his Korean service and stepping on shrapnel.  Medical evidence of record shows that the Veteran also has arthritis of the left ankle.  He contends that this disorder is related to the same incident in which he suffered the puncture wound to the left foot.  In the alternative, it is contended that the left ankle arthritis is secondary to the left foot disability; that is, that the service-connected left foot disability caused or aggravated the left ankle arthritis. 

Review of the claims file shows conflicting medical opinions regarding the etiology of the left ankle arthritis.  In a January 2013 VA opinion, the examiner opined that the left ankle disability is unrelated to the left foot injury; in a May 2013 addendum, the examiner explained that there is evidence of current arthritis in both ankles and that the arthritis was unrelated to a unilateral injury to the foot years ago.  On the other hand, an April 2013 opinion from E. Charisse Dunn, D.P.M. is to the effect that there appeared to be a direct correlation between the area of the puncture wound and the area of the arthritic changes.  Dr. Dunn commented that it is very likely that the infection the Veteran incurred during service began a process of chronic joint inflammation and subsequently arthritis which has caused permanent pain and swelling to the left foot and ankle.  VA medical records include a 2010 entry documenting complaints of left ankle pain.  The Veteran reported to the examiner that his ankle had been intermittently painful since the original laceration to the left foot on shrapnel in Korea.  The examiner's impression was acute and chronic left ankle pain likely due to prior trauma and progressive degenerative joint disease.  

The Board acknowledges that the evidence is equivocal to some degree, but after considering the Veteran's statements/testimony and the medical opinions of record, the Board finds that the positive evidence is in a state of equipoise with the negative evidence on the question of whether the current left ankle arthritis is causally related to the inservice injury.  Service connection is therefore warranted pursuant to 38 U.S.C.A. § 5107(b).  With a finding of direct service connection, there is no need to address the secondary service connection question.  

In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board.  See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a).  By letter dated in February 2010, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date.  He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection.


ORDER

Entitlement to service connection for left ankle arthritis is warranted.  The appeal is granted. 



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs