Citation Nr: 18147153 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 10-00 173 DATE: November 2, 2018 ORDER Entitlement to service connection for degenerative arthritis of the spine, intervertebral disc syndrome, spondylolisthesis, and multilevel lumbar spondylosis (a low back disability), is granted. Entitlement to service connection for a left ankle disability, diagnosed as recurring ankle sprains (a left ankle disability), is granted. Entitlement to service connection for a right ankle disability, diagnosed as recurring ankle sprains (a right ankle disability), is granted. FINDINGS OF FACT 1. The Veteran’s low back disability began during service. 2. The Veteran’s left ankle disability began in service. 3. The Veteran’s right ankle disability began in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 5103(a), 5103A, 1131, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). 2. The criteria for entitlement to service connection for a left ankle disability have been met. 38 U.S.C. §§ 5103(a), 5103A, 1131, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). 3. The criteria for entitlement to service connection for a right ankle disability have been met. 38 U.S.C. §§ 5103(a), 5103A, 1131, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1984 to May 1987; he also served in the Florida Army National Guard from May 1987 to May 1990. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision of a Department of Veterans Affairs (VA) regional office. This appeal was remanded most recently in May 2017, to obtain adequate direct nexus opinions, rather than opinions solely addressing whether the disabilities on appeal are secondary to pes planus. The Veteran’s July 2017 VA examination report still does not include a legally sufficient nexus opinion as to direct service connection. However, the Board determines that a further remand would add additional delay in resolving this matter and that the evidence is sufficient to decide the issues on appeal. In September 2011, the Veteran testified before a traveling Veterans Law Judge (VLJ) sitting in St. Petersburg, Florida, who is no longer employed by the Board. A transcript of the hearing is associated with the claims file. In October 2016, the appellant was notified that the VLJ who conducted his hearing was no longer employed by the Board. The letter also informed the Veteran that he was entitled to another hearing before a VLJ who would participate in the final determination of his case, should he so desire. See 38 C.F.R. § 20.707 (2018). The Veteran was given 30 days to reply to the letter, but no response was received. The Board therefore concludes that the Veteran does not desire another hearing and will proceed accordingly. Finally, the Board notes a formal finding of unavailability of the Veteran’s service treatment records, dated January 5, 2009. In cases where service medical records are unavailable, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board’s analysis of the Veteran’s claims was undertaken with this duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Entitlement to service connection for a low back disability and for bilateral ankle disabilities The Veteran asserts that he developed a low back disability and disability of his ankles due to events in service. Specifically, he attributes these disabilities to some 25 parachute jumps during active duty. While the theory of secondary service connection as due to pes planus was raised in September 2011 hearing testimony, the Board finds that a discussion of this theory is unnecessary as the claims sought are granted herein on a direct incurrence basis. First, the Board concludes that the Veteran is currently diagnosed with several back disabilities, as well as recurring ankle sprains. Specifically, the Veteran’s VA examination reports, to include the most recent one dated July 13, 2017, show that the Veteran has current diagnoses of degenerative arthritis of the spine, intervertebral disc syndrome, spondylolisthesis and multilevel lumbar spondylosis. Bilateral ankle sprains were diagnosed in February 2013 and July 2017. Next, the Board observes the notation of back and ankle problems in service. While many of the Veteran’s service records are unavailable, his April 1984 entrance examination does not show a low back disorder or ankle sprains. A notation on his March 1987 separation examination report indicates that the Veteran developed back problems in service. The Veteran testified at his September 2011 hearing that he made 20 of 25 jumps with a combat load, bearing 70 to 85 pounds. He also stated that immediately after one jump in service with a combat load, he began to feel a sharp pain in his lower back, and that he has suffered with pain since. The Veteran’s DD-214 confirms that he earned the Parachute Badge during active service. The Veteran’s statement to his July 2017 examiner was substantially the same. The Veteran’s separation examination report does not mention treatment for the Veteran’s ankles. However, the Veteran testified at his December 2011 hearing that he sought treatment for pain and pronation in both ankles. He was subsequently diagnosed with pes planus, which is noted on his separation report. At his July 2017 VA examination, the Veteran stated that he developed ankle pain and “constantly twisted” his ankles while running and jumping with heavy gear. As such, the Board concedes an in-service incurrence of an ankle disorder. As for a medical nexus, while each VA examiner opined that the Veteran’s disabilities are less likely than not related to his injury during active service, each opinion was based solely on the Veteran having not sought treatment until several years after service. In fact, the Veteran’s July 2017 VA examiner explicitly states that his foot pain could have been related to the ankles – despite issuing a negative nexus opinion solely on a lack of complaints for decades after service. Regardless of the medical evidence, though, the Veteran is competent to report observable symptomatology of an injury, to include recurrent pain. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Moreover, the Veteran and his representative credibly attest that the Veteran’s only reason for not seeking treatment for decades was due to his fear of losing his employment as a police officer. The VA examiners, in providing negative nexus opinions, indicated the Veteran’s post-separation brief employment as a mechanic, truck driver, and police officer. Also, the Board concedes that the Veteran’s representative’s assertion that the Veteran’s ankle disability was caused by the severe impact of a parachute landing, may be somewhat less competent than that of his VA examiners. However, the Board finds that neither fact negates the Veteran’s competent and credible reports of back and ankle pain since service. The Board finds that the Veteran’s competent and credible statements of pain in his back and ankles since service place his appeal at least in equipoise. Accordingly, the Board resolves reasonable doubt in the Veteran’s favor and grants service connection for a low back disability, a left ankle disability, and a right ankle disability. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel