Citation Nr: 18155686 Decision Date: 12/06/18 Archive Date: 12/04/18 DOCKET NO. 16-60 039 DATE: December 6, 2018 ORDER Entitlement to service connection for a left ankle disability, best characterized as arthritis of the left ankle, is granted. REFERRED The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for pes planus was raised in a February 2014 application for benefits, and the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus was raised in a November 2018 application for benefits. Those issues are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his left ankle disability, best characterized as arthritis of the left ankle, is at least as likely as not related to in-service injury. CONCLUSION OF LAW The criteria for service connection for a left ankle disability, best characterized as arthritis of the left ankle, are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1966 to August 1968. Additional evidence was received by VA subsequent to the most recent, October 2016, statement of the case issued for the appeal herein. Specifically, such includes evidence developed by VA, such as VA treatment records most recently received in November 2018, for which the Veteran did not waive AOJ review. See 38 C.F.R. § 20.1304 (c). Nevertheless, as the Veteran’s claim is granted herein, there is no prejudice to the Veteran by the Board’s adjudication of the matter without remand for RO review of the additional evidence. In June 2018, the Veteran elected to participate in VA’s Rapid Appeals Modernization Program (RAMP); however, in subsequent June 2018 correspondence, the Veteran was notified that VA could not process his request because he no longer had an appeal pending that qualified for processing under RAMP. In this regard, an appeal that has already been activated at the Board is not eligible for RAMP. Therefore, the Board will continue adjudication pursuant to current appeal procedures. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish service connection on a direct incurrence basis, the Veteran 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, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a left ankle disability The Veteran contends he injured his left ankle during his active service. Specifically, in a September 2015 statement, the Veteran reported that, on December 3, 1967, he suffered an ankle injury when a 200-pound bomb rolled up on his ankle during a rearming, that he had trouble with his ankle ever since, but just wore different shoes to adapt to pain. The Board concludes that the Veteran has a current diagnosis of a left ankle disability. In this regard, although VA treatment reflect various diagnoses, a VA treatment record dated in February 2018 provided an impression of old traumatic arthritis of the ankle, and a March 2018 VA treatment record provided an impression of postsurgical changes of the left foot and ankle, and degenerative changes of the left ankle mortise. Thus, the Board finds the Veteran’s left ankle disability is best characterized as arthritis of the left ankle. With respect to the second element of a claim for service connection, in-service incurrence or aggravation of an injury or disease, Veteran’s service treatment records do not reflect left ankle problems during his active service. Specifically, a July 1968 examination, conducted in conjunction with the Veteran’s separation from service, did not note the existence of a left ankle disability or symptoms thereof. However, in a September 2014 statement, the Veteran provided context for an attached copy of his diary entry. Specifically, he stated that the attached diary entry was from December 3, 1968, and did reflect the existence of a left ankle injury. He further reported the Chief came down to his bunk and looked at his ankle, and put him on light duty for two weeks. He also reported that in another instance he was transferred to an aircraft carrier during a rearming for medical attention. He also reported that these incidents were apparently not entered into his medical records. In this regard, the attached diary entry page itself indicated a date of December 3rd but no year was indicated. Nonetheless, the December 3rd diary entry reported, in part, that rearming went smooth and that he “got a busted ankle.” Also of record are two diary entries dated April 6th and April 7th, again no year is indicated, although the Veteran reported that such were from 1968. These entries note the Veteran was transferred to another carrier, the U.S.S. Enterprise, but further details were not legible. However, an April 8, 1968 deck log from the U.S.S. Mauna Loa described, in part, that rearming was completed and that the Veteran departed ship on authorized absence to the U.S.S. Enterprise for medical attention and subsequently returned. Also of record is a statement received by VA in July 2018, from a fellow serviceman, M. P., who noted the Veteran served on the U.S.S. Shasta and worked in the laundry pressing and dry cleaning but also did grunt work and was assigned to rearming detail. To the best of his recollection M. P. recalled the Veteran injured his foot. The Veteran’s service records do reflect service aboard the U.S.S. Shasta; however, the Board recognizes M. P.’s referenced an injury of the Veteran’s foot aboard the U.S.S. Shasta, rather than a left ankle injury aboard the U.S.S. Mauna Loa. Further, the Board recognizes there is some discrepancy in the date of the December 3rd left ankle injury, as the Veteran reported occurred in 1967 in a September 2014 statement, and in 1968 in a September 2015 statement. Nonetheless, the Board finds the December 3rd diary entry to be probative because it clearly was written in the context of the Veteran’s service as it mentions rearming. Further, it is consistent with April diary entries, which reflect transfer to the U.S.S. Enterprise, which in turn, have been objectively verified by the April 8, 1968 deck log of the U.S.S. Mauna Loa. Further, the Veteran’s contention that his left ankle injury was not noted in his service treatment records is supported by the fact that it is clear an April 8, 1968 medical incident existed but was not noted in his service treatment records. In light of the above and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence supports the occurrence of a left ankle injury as reported by the Veteran. Having carefully reviewed all evidence of record, the Board finds, for the reasons noted below, that the third requirement for service connection, competent evidence of a nexus between the Veteran’s left ankle disability, best characterized as arthritis of the left ankle, and an in-service injury has been met and there is sufficient basis to award service connection for arthritis of the left ankle. In this regard, there is no nexus opinion of record which addresses this claim or which provides an opinion as to the etiology of the Veteran’s current left ankle disability. However, as discussed above, throughout the appeal period, the Veteran reported his left ankle disability, and symptoms thereof, onset during service and have continued thereafter. The Board finds the Veteran’s statements regarding the onset of his symptoms pertaining to his left ankle disability to be credible and they are accorded significant evidentiary weight. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Furthermore, the Board observes that with respect to the Veteran’s left ankle, a November 2016 VA treatment record, authored by a podiatrist, addressed the Veteran’s pes planus and stated that he compared the Veteran’s left foot to his right foot and there were a lot of changes noted on the left foot, specifically multiple fusions and degenerative joint disease. He further found, in part, that if the pes planus was of a congenital entity then the right foot should also manifest findings, which it did not, and for only one foot to be this involved and have this amount of reconstruction necessary, begged the question of the etiology of trauma which was very consistent, and which he felt very strongly was related to the Veteran’s injury in 1967 while aboard a ship and a bomb rolling on his foot. In this regard, an October 1969 rating decision addressed pes planus and found it was a preexisting condition, although, as noted above, the record reflects a pending claim to reopen service connection is of record. However, in any event, pes planus is not at issue in this appeal. Nonetheless, the rationale provided in the November 2016 VA treatment record for the Veteran’s left foot is also applicable to his left ankle as the facts are very similar in each case, namely, the Veteran reported a left ankle injury in 1967 and has been diagnosed with arthritis of the left ankle. Thus, in applying the same rationale that was provided by the November 2016 VA treatment record to the Veteran’s left ankle disability, such establishes a link to active service. In addition, the existence of a nexus is supported by other VA treatment records which also reflected the Veteran’s ankle injury was due to an in-service injury. In this regard, a February 2014 VA treatment record, noted, in part, as to the left ankle, a December 3, 1967 history of a bomb hitting on deck but no fracture, but with pain recurrent five to six years ago. An October 2016 VA treatment record, after documenting the Veteran’s reported in-service injury, noted he experienced intermittent problems thereafter, and in the 1980s he wore high top boots which helped some with ankle pain. Finally, as noted above, a February 2018 VA treatment record provided an impression of old traumatic arthritis of the ankle. Further inquiry could be undertaken with a view towards development of the claim so as to obtain a medical examination with a nexus opinion. However, to do so in this case would only serve the purpose of obtaining negative evidence, as evidence of record tends to show the Veteran’s left ankle disability onset during service and continued since active service. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). In consideration of the evidence of record, the Board finds that the Veteran has a left ankle disability, best characterized as arthritis of the left ankle, that is likely attributable to his active service. Thus, given these facts, and when resolving doubt in the Veteran’s favor, the Board concludes that service connection is warranted for a left ankle disability, best characterized as arthritis of the left ankle, on a direct incurrence basis as   related to the Veteran’s active service, and the Board need not address the claim on a presumptive basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel