Citation Nr: 1702002 Decision Date: 01/26/17 Archive Date: 02/09/17 DOCKET NO. 13-08 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of a left ankle injury. 2. Entitlement to service connection for a back condition, secondary to a left ankle injury. REPRESENTATION Appellant represented by: American Legion WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel INTRODUCTION The Veteran had active military service on the United States Army from June 1955 to May 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida, which denied service connection for both claims on appeal. The Veteran appealed the denials in this decision and the matters are now before the Board. The Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge in August 2016. A transcript of their testimony has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2016). FINDINGS OF FACT 1. After affording the Veteran the benefit of the doubt, his left ankle injury manifested during active military service and the residuals from the left ankle injury are etiologically related to his military service. 2. After affording the Veteran the benefit of the doubt, his back condition was proximately due to or the result of the Veteran's left ankle injury. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals from a left ankle injury have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.159 (2016). 2. The criteria for service connection for a back condition, secondary to a left ankle injury, have been met. 38 U.S.C.A. §§ 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.310, 3.159 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Board notes that the Veteran's service treatment records are believed to have been destroyed in a fire in July 1973 at the National Personnel Records Center (NPRC) facility. An April 2009 letter from the NPRC confirmed that the Veteran's records are unavailable. Given the absence of these records, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)(the Board has a heightened duty in a case where the service medical records are presumed destroyed). I. Direct Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2016); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Residuals from a left ankle injury With respect to element (1), a current disability, affording the Veteran the benefit-of-the-doubt, his testimony before the Board and review of the available medical records establish that he has residuals from a left ankle injury. Post-service medical records confirm the presence of orthopedic maladies. The August 2016 medical examination performed by Dr. JN notes that the Veteran has a history of a broken ankle. He provided a positive etiology opinion stating that the Veteran's current back condition is related to his prior ankle fracture. There is also a November 2006 therapy note which endorses broken ankle as a prior serious injury. The Veteran reported that his treating neurologist observed a length difference in the Veteran's feet after specialized measurements were taken. See Transcript at 14. Currently, the Veteran wears special shoe inserts to assist him with walking and he takes pain medication for his feet. With respect to element (2), in-service incurrence or aggravation of a disease or injury, the Veteran reports that he injured his ankle in-service. The Veteran stated in his testimony that he injured his ankle while tripping on a hose while cleaning tanks while stationed in Germany. After he injured his ankle, he went to the infirmary and was seen by Dr. K. After being sent home, he reports that his leg got worse, turned color, and began swelling. He went back to the infirmary and was immediately sent to the hospital so that his ankle could be treated. He was hospitalized for eight days while his ankle was reset and re-cast. The Veteran's report is consistent with a February 2009 letter sent to RP discussing the history of the ankle injury and subsequent treatment. The Board notes that the Veteran presented a picture of a gentleman, marked as the appellant, in military uniform with a cast on his left ankle. While the Board cannot verify that this photograph is in fact taken of the Veteran after his reported injury, the photograph is probative in providing support to the testimony of an in-service occurrence of a left ankle injury. With respect to element (3), a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability, the competent, credible, and probative evidence of record weighs in favor of finding that the current residuals of a left ankle injury are etiologically related to service. The Veteran asserts that he has had trouble with his ankle since his injury. The Veteran's spouse, a registered nurse, states that she has noticed irregularities in her spouse's gait ever since she has known him. They have been married since July 1960 and they met in 1958. She testified at the August 2016 hearing that she observed a sort of limping when he walked and commented that he would often drag his feet. Her reports are consistent with an April 2009 letter where she asserted that her spouse walked with a limp. She testified that her spouse started having back trouble in 1982 and was subsequently treated by clinicians and therapists. The Board acknowledges that there are no service treatment records to corroborate the Veteran's testimony of a left ankle injury. Here, the Board finds that the Veteran's testimony and available medical records support a finding that the injury in service did in fact occur and that it resulted in his current ankle disability. The Board has considered the applicability of the benefit of the doubt doctrine and finds that the record indicates the presence of an ankle injury and evidence of residual effects (pain, numbness, and gait abnormalities) stemming from the injury found within post-service records. The Board finds the Veteran's reports highly credible and notes their consistency when compared to his prior reports and with the testimony from his spouse. Therefore, element (3), a causal relationship, i.e., a nexus, between the claimed in-service disease or injury, residuals from a left ankle injury, has been met. Back condition, secondary to a left ankle injury In this case, the Veteran has not asserted that his claimed back condition was incurred in, or otherwise related to, his period of active service. Moreover, his available service records do not reflect any complaints, treatment, or diagnoses of a back disorder. Instead, the Veteran has asserted that his back condition is related to residuals from an ankle injury, for which he seeks service connection in this appeal. Secondary service connection is warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). In an August 2016 private examination, Dr. JN diagnosed the Veteran with lumbosacral orthosis. He provided a positive etiology opinion stating that the progression of the Veteran's low back condition is related to his in-service ankle injury. Dr. JN reviewed the Veteran's medical history for back treatment and reports of aggravating factors (twisting and flexing) and associated symptoms (numbness of legs/feet). For a medical opinion to be adequate, it must be based upon sufficient facts or data, the product of reliable principles and methods, and the result of principles and methods reliably applied to the facts. Nieves-Rodriguez v. Peake, 22 Vet. App 295, 302 (2008). Here, the medical opinion is adequate and non-speculative as it was based on a full review of the Veteran's medical history and is grounded on supported principles found within the field of orthopedic practice and treatment. The Board notes that the ability for the clinician to provide an opinion is limited due to the unavailability of the Veteran's service treatment records. The Veteran testified on the long duration of his back trouble asserting that he started having trouble in 1982. His spouse stated that the Veteran has had back trouble for over thirty years. He has had numerous medical examinations and therapy sessions for his back between 1986 and 2010. He was diagnosed with sacral stenosis (in L4, L5, and L6), low back pain, and radiculopathy on his left side. The Board, based on carefully considering the benefit-of-the-doubt doctrine, acknowledges that there is sufficient evidence to conclude that the Veteran currently presents with back issues that are proximately caused by his in-service left ankle injury. 38 C.F.R. § 3.102 (2016). Therefore, the criteria for service connection for a back condition, secondary to a left ankle injury, have been met. II. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2016). With regard to the Veteran's claims for service connection for residuals of a left ankle injury and a low back condition, secondary to a left ankle injury, the Board is granting the benefits sought on appeal. Therefore, it is not necessary to discuss VA's duties to notify or assist the Veteran in substantiating those claims. ORDER Service connection for residuals from a left ankle injury is granted. Service connection for a back condition, secondary to a left ankle injury, is granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs