Citation Nr: 1334810	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  10-14 796	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a right ankle disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and a friend


ATTORNEY FOR THE BOARD

U. Ifon, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from July 1998 to May 2003 and from February 2006 to August 2007.  

This appeal to the Board of Veterans' Appeals (Board) is from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's service connection claim for a right ankle disability and posttraumatic stress disorder (PTSD).

In September 2010, the Veteran testified before a Decision Review Officer (DRO) at hearing at the RO.  A transcript of the hearing is of record.

In a February 2011 rating decision, the RO granted the Veteran's claim of service connection for PTSD.  Because the grant of service connection benefits constituted a full grant of the benefit sought on appeal, this claim is no longer in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).


FINDING OF FACT

The Veteran sustained a right ankle injury during service and symptoms of a right ankle disability have been continuous since separation from service.


CONCLUSION OF LAW

The Veteran's right ankle disability is related to his active military service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).





REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist Veterans in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 

Here, the disposition of the claim being decided below is fully favorable to the Veteran.  Therefore, the Board finds that all notification and development action necessary to render a fair decision on the matter has been accomplished.

Legal Criteria - Service Connection

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service.  38 C.F.R. § 3.303(d).

To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Davidson v. Shinseki, 581 F. 3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004).

When a chronic disease is shown in-service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date is service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. 
§ 3.303(b).  A chronic disease is one listed at 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In this case, the Veteran's right ankle disability is not diagnosed as a chronic condition listed under 38 C.F.R. § 3.309(a).

Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects or disabilities noted at the time of the examination, acceptance and enrollment, or where there is clear and unmistakable evidence that a disease or injury both existed prior to service and was not aggravated therein.  See 38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

In determining whether a particular condition is "noted" on entry, the Board's analysis is limited to whether the condition was recorded in the enlistment examination report.  38 C.F.R. § 3.304(b)(2013).  It is crucial that the condition take the form of a clinical finding, and not merely be reported as medical history.  This does not mean, however, that a Veteran's subjective complaints on entry are devoid of evidentiary weight.  Rather, such complaints are to be considered, in tandem with other evidence of record, in determining the commencement of the particular disability at issue.  38 C.F.R. § 3.304(b)(1). 

In making all determinations, the Board must fully consider the lay assertions of record.  Davidson, 581 F.3d 1313.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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.  Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.

Analysis

The Veteran seeks service connection for a right ankle disability.  A June 2008 VA examination report shows a diagnosis of a chronic right ankle strain which constitutes a current disability and satisfies the first element of the Shedden analysis.  Shedden, 381 F. 3d at 1167.

As for evidence of an injury in service, the Veteran's service treatment records (STRs) from July 1998 to May 2003 (his first period of service) do not contain any complaints, treatment or diagnosis associated with his right ankle. 

In October 2005, prior to re-entering active military service, the Veteran was diagnosed with a right ankle sprain from a basketball game injury two months prior.  The X-rays taken at the time showed no fracture, dislocation or soft tissue swelling of the right ankle.  No acute process was seen.

The Veteran's STRs from February 2006 to August 2007 (his second period of service) are unavailable for review, with the exception of a June 2007 treatment note.  In such situations, VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule.  See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  Accordingly, there is no evidence that a right ankle disability was noted on the enlistment examination report, as this report is unavailable.

As previously noted, the Veteran is presumed to be sound upon entry into service, absent clear and unmistakable evidence to the contrary.  38 C.F.R.. § 3.304(b).  Although the Veteran sprained his right ankle prior to his second period of service, the October 2005 X-rays were essentially normal, and do not constitute clear and unmistakable evidence to rebut the presumption.  The Board finds the presumption of soundness is not rebutted, as there is no clear and unmistakable evidence of record to suggest the Veteran had a right ankle disability upon re-entry to service.  Thus, the Veteran's right ankle is presumed sound upon entrance into his second period of service.

A review of the available STR covering the second period of service reflects that in June 2007, the Veteran complained of right ankle pain that began since his deployment, and attributed it to the uneven terrain.  This evidence satisfies the second element of the Shedden analysis in that it is evidence of complaints of right ankle pain during the Veteran's second period of service.  Shedden, 381 F. 3d at 1167.

Given that the first two elements of the Shedden analysis have been met, the determinative issue, therefore, is whether there is a nexus linking the Veteran's current right ankle disability to service.  

Further review of the VA treatment records show the Veteran continuously complained of right ankle pain since separation from service.  In September 2007, just one month after service discharge, the Veteran requested an MRI of his right ankle after complaining of multiple twisting injuries.  In December 2007, the Veteran complained of ankle pain and X-rays were conducted.  In June 2008, the Veteran was afforded a general VA examination, where he reported a history of right ankle pain since service, due to several twisting injuries.  In March 2009, the Veteran requested a brace or wrap for his right ankle.  In August 2009, the Veteran complained of chronic right ankle pain with running, and stated it stemmed from an active duty injury.  After complaining of right ankle pain in January 2010, the treating physician reported the Veteran most likely had a ligament strain, and instructed the Veteran to continue using his ankle brace.  In September 2010, the Veteran, yet again, complained of right ankle pain.

The Veteran reconfirmed the above-stated facts at his September 2010 DRO hearing, adding that he was still receiving treatment for his ankle.

The Veteran, as a layperson, is competent to report right ankle pain due to his personal knowledge.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  He is consistent in his statements and his statements are consistent with the medical evidence of record.  See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).  The Veteran has provided a competent and credible report of the onset of his right ankle pain during service and of continuous symptoms since that time.

In some instances, lay evidence may be sufficient to establish a nexus.  See Davidson, 581 F.3d at 1316 (rejecting the view that a lay person is not competent to provide testimony regarding a nexus).  In this case, an in-service injury to the Veteran's right ankle is established, and he has provided a credible report that his right ankle pain continued after service.  The Board concludes that the Veteran's reports are sufficient to establish a positive nexus.

Accordingly, in considering all the evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that the Veteran has a right ankle disability that was incurred in service.  

As noted above, entitlement to service connection on the basis of a continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) is only warranted for the chronic diseases listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a).  Right ankle strain is not such a disease.  The Board's grant of service connection in this case is not pursuant to the continuity of symptomatology provision of 38 C.F.R. § 3.303(b).  Rather, it is based on the lay and medical evidence indicating that the Veteran's current right ankle disability is related to his in-service right ankle symptoms, and warrant entitlement to service connection under 38 C.F.R. § 3.303(a).

Thus, the evidence is in favor of the grant of service connection for a right ankle disability.  See 38 U.S.C.A § 5107 (West 2002).


ORDER

Service connection for a right ankle disability is granted.


____________________________________________
CHERYL MASON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs