Citation Nr: 18153710 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 13-09 265 DATE: November 28, 2018 ORDER Service connection for a right ankle disorder, diagnosed as posttraumatic osteoarthritis of the right ankle, is granted. FINDING OF FACT The Veteran has posttraumatic osteoarthritis of the right ankle that is related to his military service. CONCLUSION OF LAW Posttraumatic osteoarthritis of the right ankle was incurred in active service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1999 to July 2003, and his awards and decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in ¬¬¬June 2014. A transcript of that hearing has been associated with the claims file. The Board reopened the Veteran’s claim and remanded the claim for further development in March 2015. That development has been completed, and the case has since been returned to the Board for appellate review. The Board also granted service connection for bilateral hip disorders in its March 2015 decision. In an April 2015 rating decision, the RO assigned disability evaluations for the Veteran’s right and left hip disorders, which the Veteran then timely appealed. While the Veteran’s issues of entitlement to increased evaluations for his hip disorders have been certified to the Board, the Veteran indicated that he wished to testify at a hearing in his November 2016 substantive appeal. Given the pending hearing request, these issues will not be addressed at this time. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As arthritis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, if consistent with the circumstances, conditions, or hardships of service, even if there is no official record of the incident. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). However, the provisions of 38 U.S.C. § 1154 (b) do not establish a presumption of service connection, but eases the combat Veteran’s burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). That is, the statute provides a basis for determining whether a particular injury was incurred in service, but not a basis to link the injury etiologically to the current condition. Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). In-service incurrence by way of the combat presumption may also be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154 (b). That is, if the lay or other evidence of service incurrence is satisfactory and consistent with the Veteran’s combat service, the Veteran prevails unless this evidence is rebutted by clear and convincing evidence that the disease or injury was not incurred or aggravated in service or during an applicable presumptive period. See 38 U.S.C. § 1154 (b); Caluza v. Brown, 7 Vet. App. 498 (1995); Arms v. West, 12 Vet. App. 188 (1999); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for a right ankle disorder. The Veteran’s service treatment records indicate that he sought treatment for right ankle pain in April 2000. He reported that he had injured his ankle in the field two weeks earlier. Following an examination, he was assessed as having a mild right ankle sprain. An April 2000 x-ray report also indicated that the Veteran had right ankle pain just below the lateral malleolus after an inversion-type injury, but the x-ray was normal with no fracture seen. He was seen shortly thereafter at which time it was noted that he still had complaints of right ankle pain when walking and running. The assessment was rule out third degree sprain inversion fracture of the right malleolus. The remainder of the service treatment records are negative for any complaints, treatment, or diagnosis of a right ankle disorder. A May 2003 separation examination found the Veteran’s lower extremities and feet to be normal. The examination repot appears to note that a broken bone in the right ankle three years earlier had improved. In a May 2003 report of medical history form, the Veteran also denied having a medical history of arthritis, rheumatism, bursitis, foot trouble, swollen or painful joints, and any bone, joint, or other deformity. At a medical appointment in October 2004, the Veteran reported a history of a broken right ankle while in service, and at a VA medical appointment in August 2008, the Veteran indicated he had injured his ankle during a deployment. At an appointment with Dr. S.F. (initials used to protect privacy), the Veteran’s medical history included a broken ankle. In October 2011, the Veteran was treated for a right ankle fracture after a fall in a parking lot. In an October 2011 record, the Veteran’s treating doctor indicated that this was his second right ankle fracture with the first one occurring while he was in the military. Private medical records dated in March 2012 show that the Veteran was diagnosed with posttraumatic osteoarthritis of the right ankle. That medical provider reported that the Veteran had difficulties with the ankle since service and stated that it was feasible that the Veteran had posttraumatic osteoarthritis in the right ankle, which became more problematic since the October 2011 injury. However, the Board notes that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23, Vet. App. 382, 3 89-90 (2010). Applicable regulations also provide that a finding of service connection may not be based on a resort to speculation or a remote possibility. See 38 C.F.R. § 3.102. The Veteran was also afforded a VA examination in May 2012 in connection with his claim. The examiner opined that the Veteran’s right ankle disorder was not related to his military service, as the medical records did not document right ankle instability that would account for the subsequent October 2011 fracture. However, the VA examiner did not address the Veteran’s lay assertions in his opinion. In addition, the Veteran submitted an August 2014 opinion from his private doctor, Dr. R.B. (initials used to protect privacy), who opined that his October 2011 fracture was not at least as likely as not related to his in-service ankle injuries. Although he also raised the possibility that the prior injuries in service could have made the Veteran’s ankle unstable and more susceptible to the October 2011 fracture, Dr. R.B. then noted that there was no evidence of instability in the records to give weight to such a connection. VA medical records indicate a diagnosis of post-traumatic degenerative joint disease in September 2015. During his June 2014 hearing, the Veteran testified that he injured his ankle in 2000. However, he also indicated that he also injured his ankle while serving in Africa. He then testified that he went to Iraq, and while under fire, he re-injured the ankle as a result of jumping into a hole. He testified that both re-injuries were under combat conditions. The Veteran was later provided another VA examination in September 2016. The examiner stated that the Veteran’s current right ankle disorder was distinct from and is not associated with or caused by his right ankle sprain in service. However, no rationale was provided. Thus, while there were medical opinions of record, the Board found them inadequate and requested a VHA opinion in May 2018. After a review of the evidence of record, the VHA examiner opined that it is at least as likely as not that the right ankle fracture sustained in 2011 may be, in part, related to the Veteran’s in-service injuries. In support of this opinion, the examiner stated that chronic subtle ankle instability is common after ankle sprains and ankle fractures. He went on to note that more recent literature supports a higher risk of ankle arthritis 15 to 25 years after ankle fractures. Thus, he opined that a diagnosis of posttraumatic arthritis in 2012, which was only one year after the 2011 fracture, was relatively unlikely related to that 2011 fracture. The Board finds that, after weighing the evidence, the August 2018 VHA opinion is the most probative of record. The examiner provided a medical opinion supported by rationale and a discussion of the Veteran’s medical history and medical literature. The VHA examiner also considered the credible testimony from the Veteran regarding his right ankle injuries during combat situations. In contrast, the other medical opinions of record were speculative in nature and/or lacked a supporting rationale or full consideration of the Veteran’s testimony. Accordingly, resolving all reasonable doubt in the appellant’s favor, the Board finds that service connection for the Veteran’s posttraumatic osteoarthritis of the right ankle is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Rideout-Davidson, Counsel