Citation Nr: 1802006 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-26 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a status post total right ankle replacement (right ankle disability), to include as secondary to his left ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD C. Kass, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The Veteran served on active duty from August 1957 until February 1958. This matter comes before the Board of Veterans' Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified before the undersigned Veterans Law Judge in July 2017. A transcript of the hearing has been associated with the record. The Board remanded this case in July 2017. It has since returned for further appellate consideration. FINDINGS OF FACT 1. The Veteran had a right ankle replacement during the appeal period. 2. Resolving all doubt in the Veteran's favor, his right ankle disability is related to his service-connected left ankle disability. CONCLUSION OF LAW The criteria for service connection for right ankle disability are met. 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran is seeking service connection for his right ankle disability. The Board finds service connection is warranted for a right ankle disability because he satisfies the three required elements. First, the Veteran has a current diagnosis for right ankle arthritis. See May 2014 treatment records. In addition, the evidence shows the Veteran had a total ankle replacement. Accordingly, the Veteran satisfies the first element - a current disability. Second, his left ankle is service-connected, and thus, satisfies the second element - a service-connected disability. Third, the Board finds the evidence is at least in equipoise as to whether the Veteran's right ankle disability is related to his service-connected left ankle disability. In September 2014, Dr. M.M., the Veteran' primary care physician, concluded that the Veteran's right ankle disability was a result of his left ankle disability. She explained his right ankle pain caused stress and pain on a daily basis. In September 2014, Dr. S.S. concluded that the Veteran's right ankle disability was secondary to his left ankle disability. Although the Veteran attempted to use cortisone injections and an arthroscopic chondroplasty to alleviate his pain, he continued to have constant pain in his right ankle. The Veteran also had extensive arthritis with exposed bone. In May 2015, Dr. M.M., the Veteran' primary care physician, noted that the Veteran had at least six operations on his left ankle. He developed chronic pain in his right ankle as a result of his service-connected left ankle disability. In July 2015, a VA examiner found the Veteran's right ankle disability was less likely than not related to his service-connected left ankle disability. The examiner found evidence that the Veteran injured his right ankle as a recurrent sprain as early as 1976. With this evidence of right ankle trauma, the examiner concluded that the Veteran's right ankle issue significantly predated 1976. In August 2015, Dr. S.S. provided a nexus opinion that the Veteran's right ankle disability developed secondary to his left ankle disability and its related surgeries. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. §5107 (West 2012). Thus, the Board finds that the aforementioned evidence is sufficient to place the relevant evidence, at a minimum, in a state of equipoise as to whether the Veteran's right ankle is secondary to his service-connected left ankle disability. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for his right ankle disability is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). ORDER Service connection for status post total right ankle replacement is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs