Citation Nr: 1332446 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 05-23 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for right ankle disability, to include as secondary to service-connected left ankle disability. REPRESENTATION Veteran represented by: Peter J. Meadows, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran had active duty for training from May 1976 to September 1976 and periods of service in the Army National Guard to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In July 2007, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issue on appeal was previously before the Board in October 2007, when the Board denied the Veteran's claim after further appellate review. The Veteran appealed the October 2007 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2010 Memorandum Decision, the Court vacated the Board's October 2007 decision and remanded the case to the Board for development consistent with the Court's decision. Subsequently, the Board remanded the Veteran's claim in December 2010 for additional development. The RO and Board previously characterized the Veteran's claim as a claim of entitlement to service connection for bilateral ankle disability. In a rating decision dated in June 2013, the RO granted entitlement to service connection for left ankle degenerative disease. As this represents a full grant of the benefit sought with respect to a left ankle disability, the Board has re-characterized the remaining issue on appeal. In October 2010, the Veteran submitted additional written evidence with a waiver of RO consideration, which was signed by the Veteran's representative. As such, this evidence is accepted for inclusion in the record. See 38 C.F.R. §§ 20.800, 20.1304 (2012). FINDING OF FACT The competent evidence demonstrates that right ankle degenerative arthritis is proximately due to service-connected left ankle disability. CONCLUSION OF LAW Right ankle degenerative arthritis is proximately due to service-connected left 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 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 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, 5107, 5126 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 3.326 (2013). As the benefit sought is granted in full in the decision below, further discussion as to VA's duties to notify and assist is rendered moot. Service connection may be established for disability resulting from personal injury suffered or disease contracted in active military, naval, or air service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to, the result of, or chronically aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts that his right ankle disability had its onset during service. In the alternative, the Veteran avers that his right ankle disability is the result of his service-connected left ankle degenerative disease. Service treatment records are negative for any complaints of, treatment for, or diagnosis of a right ankle disability, to include right ankle degenerative arthritis. Private treatment records reflect diagnoses of arthritis in multiple joints, to include the right ankle. In an August 2002 private treatment record, a private physician stated that the Veteran's severe arthritis/gout was likely secondary to previous injuries, especially the ankles. In July 2011, the Veteran underwent VA examination in connection with his claim. X-ray examination revealed slight degenerative spurring of the deltoid ligament, and subcortical lucencies were seen in the talar dome without articular collapse or irregularity. The VA examiner reported that the findings suggested osteochondral defects. There was an osteophyte arising off the dorsal aspect of the right tibia. The impression was degenerative changes in both ankles and probable developing bilateral talar osteochondral defects. The VA examiner opined that the Veteran's right ankle was at least as likely as not secondary to his left ankle condition. In a September 2011 addendum, the VA examiner stated that the opinion was based on a review of all the data, the timeline of events, and the current situation. The evidence reflects a current diagnosis of right ankle degenerative arthritis. As such, the Board finds the Veteran has established a current disability for the purpose of service connection. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Additionally, the Veteran is now service-connected for left ankle degenerative disease. Furthermore, the July 2011 VA examiner opined that it is at least as likely as not that the Veteran's right ankle disability is secondary to the left ankle condition, and in September 2011, the VA examiner explained that the opinion provided was based on all of the data, the timeline of events, and the current situation. In view of the foregoing, the Board finds the competent evidence demonstrates that right ankle degenerative arthritis is proximately due to service-connected left ankle degenerative disease. With resolution of doubt in the Veteran's favor, the Board finds the evidence supports service connection for right ankle degenerative arthritis. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for right ankle degenerative arthritis is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs