Citation Nr: 1755063	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  13-28 995	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota


THE ISSUES

1. Entitlement to service connection for residuals of a right ankle injury, to include right ankle degenerative spurring.

2. Entitlement to service connection for residuals of a nose injury, to include nasal septum deviation.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B.A. Evans, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Air Force from September 1984 to January 1987, and in the Navy from May 1989 to February 1995, with additional periods of service in the Army National Guard.

This case come before the Board of Veterans' Appeals (the Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota.

This matter was previously before the Board in September 2016, at which time the Board remanded both issues on appeal for additional development. In September 2016, the Board granted reopening of service connection, therefore new and material evidence will not be addressed here. This case has now been returned to the Board for further appellate action.

The Veteran was afforded a November 2013 hearing before a Decision Review Officer at the RO, according to his request, and a transcript has been associated with the record.

The record before the Board consists of electronic records in Virtual VA and the Veterans Benefits Management System (VBMS).




FINDINGS OF FACT

1. The Veteran's right ankle disability has been shown to be etiologically related to the Veteran's active duty.  

2. The residuals of a nose injury, to include nasal septum deviation, have been shown to be etiologically related to the Veteran's active duty. 


CONCLUSIONS OF LAW

1. The criteria for service connection for a right ankle disability are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

2. The criteria for service connection for a nose injury, to include nasal septum deviation, have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be granted if the evidence demonstrates a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service disease or injury and current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service (one year for arthritis). 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996).

The provisions of 38 U.S.C. § 1111 provide that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.

This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).

A pre-existing injury or disease noted at entry will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 ; 38 C.F.R. § 3.306 . The provisions of 38 C.F.R.§ 3.306(b) provide that aggravation may not be conceded unless the pre-existing condition increased in severity during service.

An important distinction between section 1111's aggravation prong of the presumption of soundness and section 1153 presumption of aggravation is the burden of proof. Under section 1111, the burden is on the Government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Under section 1153, however, the Appellant bears the burden of showing that his preexisting condition worsened in service. Once the veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235   (2016).

a). Right Ankle Disability

The Veteran has provided evidence sufficient that the Board does not contest that he has a right ankle disability for the purposes of service connection. 

In the report of a December 2016 VA examination, the Veteran was given a diagnosis of impingment syndrome with a history of sprain. As will be discussed below, private medical evidence also shows a history of surgery. The evidence is in equipoise as to whether the Veteran also has arthritis in his right ankle. While March 2013 X-rays from a VA examination was noted to have shown early degenerative arthritis, the Veteran's most recent VA examination in December 2016 show that he has no current diagnosis of arthritis.  Having resolved reasonable doubt, the Board finds that he does.

The Veteran alleged two separate in-service events that may have been the genesis of his right ankle disability. The first occurred in February 1986 while playing basketball in active service and was diagnosed as an ankle sprain, and he was diagnosed with a second ankle sprain in April 1992 after turning his ankle in service. The Veteran is competent and credible to testify as to the events in which he hurt his ankle, and in both cases the Veteran's statements are supported by STRs diagnosing the Veteran with ankle sprains. As such, the Board does not contest that the in-service ankle injuries occurred.

The third element of a service connection claim requires the Veteran to show a nexus between a current disability and in-service event. While evidence is sufficient to establish the first two elements, the nexus between them must be established. Dr. Renaud is a private physician who performed ankle surgery on the Veteran to "repair multiple issues with that right ankle, including instability and some tendinopathy as well as some loose bony bodies." Dr. Renaud offered an April 2017 letter in support stating in his "opinion that the injury [the Veteran] sustained in 1986 is the cause of the ankle problems that he sustained since that time and therefore the ultimate reason for his recent ankle surgery. He further noted that "[t]he instability, tendon injury, and bony spurs and loose bodies within and around the ankle joint that he has been experiencing until surgery are compatible with the injury he is describing in 1986." In addition, the Veteran gave lay statements and testified in a hearing before a Decision Review Officer in November 2013 that he suffered consistent pain in his ankle since his first ankle injury in 1986. 

In contrast, the VA examiner who performed the December 2016 VA examination on the Veteran responded to the Board's remand directive in an addendum opinion in January 2017. She opined that the Veteran's ankle condition was less likely than not aggravated by his military service, as there is no medical evidence that isolated ankle sprains cause degenerative changes in the joint space since it is tendons and ligaments involved in a sprain. 

Based on the foregoing, the Board finds that the evidence is in equipoise as to whether the Veteran's current ankle disabilities are related to service. Therefore, having resolved reasonable doubt in favor of the Veteran, the benefit sought on appeal is granted.

b). Nasal Injury

The Veteran contends that he is entitled to service connection for the residuals of a nose injury, to include nasal septum deviation. The medical professional who performed the December 2016 VA examination offered an addendum opinion on January 2017. In that opinion, the medical professional revised her opinion and stated that the Veteran's ". . . nasal septal deviation was at least as likely as not aggravated by the service as the more times the nose is fractured the worse the deviation can become. In his case it worsened and required surgical intervention." This addendum opinion distinguishes the examiners original medical opinion in December 2016, where in answer to the question of whether the Veteran's nasal condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, the examiner answered that there was documentation on the Veteran's medical exam indicating he has previously suffered a nasal fracture at age 16, secondary to a fall, and that as such this was a preexisting condition. 

The addendum medical opinion, in combination with the lay testimony submitted by the Veteran, show that the Veteran's nasal septal deviation was aggravated by service. As such, entitlement to service connection for the residuals of a nose injury, granted.


ORDER

Entitlement to service connection for residuals of a right ankle injury, to include right ankle degenerative spurring, is granted.

Entitlement to service connection he residuals of a nose injury, to include nasal septum deviation is granted.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs