Citation Nr: 18144089 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 16-33 688 DATE: October 23, 2018 ORDER Entitlement to service connection for a low back disorder is denied. REMANDED Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a left ankle disorder is remanded. FINDING OF FACT The medical evidence does not show that the Veteran has a low back disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disorder have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active service from July 1980 to December 1990, and from October 2001 to July 2002. In addition, the Veteran retired from Air National Guard and the U.S. Air Force Reserve in August 2012. Any additional dates of U.S. Code Title 10 active and inactive duty from 1991 to 2012 have not been confirmed. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012). Generally, the evidence 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. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). For veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as arthritis are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307 (a), 3.309(a). In addition, where certain chronic diseases such as arthritis are shown during active service to a disabling degree, subsequent manifestations of the same chronic diseases at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id.; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Entitlement to service connection for a low back disorder. The Veteran argues that he injured his back on active duty in 1997, and that service connection for a low back disorder is warranted therefor. However, there is dispute as to whether the Veteran meets the criteria for the first element under Shedden, that of medical evidence of a current low back disorder. The medical evidence does not show that the Veteran is diagnosed with a low back disorder. While service treatment records (STRs) show complaints of and treatment for back in 1997 and 2007, there is no evidence he was diagnosed in-service with a back disorder that meets the criteria for a chronic disability under 38 C.F.R. §§ 3.307 (a), 3.309(a). In addition, the Veteran has submitted no medical evidence to establish he currently has a low back disorder. In sum, the medical evidence does not establish that the Veteran has a current low back disorder. Accordingly, service connection is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS FOR REMAND Entitlement to service connection for left and right ankle disorders. STRs show clinical findings of probable old avulsion fracture of the left lateral malleolus. Private medical records associated with the Veteran’s STRs further reflect the Veteran was diagnosed with gouty arthritis in 1997. These findings document left ankle and left and right foot disorders that could meet the criteria for a chronic disability under 38 C.F.R. §§ 3.307 (a), 3.309(a). Accordingly, further development is required prior to adjudication of these claims. There are two areas of dispute. First, it cannot be determined from the record before the Board whether the Veteran was engaged in inactive or active duty and whether such service was performed under U.S. Code Title 10 or U.S. Code Title 32 at the time of his left ankle injury, and findings of right and left foot arthritis and gout. Second, if such injury or disease was incurred during active federal service, or injury during inactive federal service, a medical opinion is required to determine whether there is an etiological link between such injury or disease and the claimed left and right ankle disorders. The matters are REMANDED for the following action: 1. Take all required actions to obtain additional updated relevant VA treatment records, and to obtain identified private treatment records if applicable. 2. Take all required actions to determine the status of the Veteran’s service at the time he injured his left and right ankles, and at the time arthritis in both feet and gout were diagnosed. The Board points to the following entries in the STRs: (a.) December 1992 reported left ankle injury (b.) 1997 x-ray results showing probable old avulsion fracture of the left lateral malleolus (c.) 1997 x-ray results showing arthritis changes in 1st metatarsophalangeal joint on the left and right (d.) 1997 diagnosis of gouty arthritis. 3. Only if it is shown that the Veteran injured his ankle(s) or was diagnosed with an ankle condition during a period of qualifying active or inactive service, take all required actions to obtain copies of worker’s compensation documents concerning the reported December 1992 ankle injury. 4. Only if it is shown that the Veteran injured his ankle(s) or was diagnosed with an ankle condition during a period of qualifying active or inactive service, schedule the Veteran for a VA examination to determine the nature and etiology of the claimed left and right ankle disorders. The claims file, to include all evidence obtained pursuant to this Remand, must be made available to the examiner for review, and the examination report should reflect that such review was accomplished. All studies deemed appropriate shall be performed, and all findings shall be set forth in detail. The examiner is specifically asked to answer the following question: (a.) Is it as likely as not (50 percent probability or greater) that any left and/or right ankle disorder is the result of any injury or disease or other in-service event during any period of active service or, in the alternative, any left or right ankle disorder is the result of any injury that occurred during any period of inactive service. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L.J. Bakke, Counsel