Citation Nr: 18157595 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 14-08 690 DATE: December 13, 2018 ORDER Entitlement to service connection for a bilateral ankle disability is granted. FINDING OF FACT The Veteran’s bilateral ankle disability clearly and unmistakably pre-existed service but was not clearly and unmistakably not aggravated beyond the natural progression of the disability during service. CONCLUSION OF LAW The criteria for service connection for a bilateral ankle disability have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veteran served in the Army during the Vietnam War from February 1968 to November 1969. During his time in service he received a Combat Infantryman Badge. This matter comes before the Board of Veterans’ Appeals on appeal from an August 2010 rating decision of the Department of Veterans’ Affairs Regional Office in St. Petersburg, Florida. The Board previously remanded this matter in October 2015 and November 2017 for further evidentiary development. Service connection may be granted for a disability resulting from a disease or disability incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or disability; and (3) a nexus or link between the current disability and the disease or disability incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. See 38 U.S.C. § 1154 (b). The United States Court of Appeals for the Federal Circuit has held that, in the case of a combat veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). However, in order to establish entitlement to service connection, there must still be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A preexisting disability or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. The Veteran seeks service connection for a bilateral ankle disability which he contends was aggravated during his time in service as a Vietnam infantryman. Veteran’s November 1967 report of medical history documents that he was treated several times for sprained ankles while in high school. Although Veteran acknowledged having sustained ankle sprains prior to service, the November 1967 pre-service examination was normal and did not note any findings regarding Veteran’s ankles. Thus, the Veteran is presumed to be sound at entrance. A February 1969 letter from a physician is associated with the service treatment records. The physician stated that he had known the Veteran since birth and that the Veteran had injured both ankles several years earlier. The Veteran reported that his ankles had been painful since his injuries. The physician advised that the Veteran be assigned to the type of service that met his physical condition. Veteran’s March 1969 service treatment records document that the Veteran was deemed medically qualified for limited duty due to his recurring ankle injuries. The physician noted that the Veteran has an old chip fracture in his left ankle. In July 1969, the Veteran was hospitalized for two days for injuries related to his ankle. While his ankle did heal after that surgery, the Veteran subsequently had three episodes of left ankle effusion and pain. The Veteran was given a walking cast for this injury. Veteran’s post-service medical records also support the conclusion that Veteran’s ankle disability existed prior to service. In July 2010, the VA examiner noted the Veteran had sprained ankles prior to service, and opined it should be considered a pre-service condition. In Veteran’s September 2016 VA examination, the examiner answered yes when asked whether it is clear and unmistakable that the Veteran had an ankle disability prior to entering service in February 1968. The examiner opined that the Veteran did have recurrent ankle difficulty, however military notes state that this was due to a pre-existing chip fracture. Lastly, in August 2018, the examiner opined that it is clear and unmistakable that the Veteran had a disability of both the right and left ankle prior to entering active service. The Veteran’s pre-service examination, physician’s February 1969 letter, VA medical opinions, and the Veteran’s statement documenting his medical history of ankle sprains, provide clear and unmistakable evidence that the Veteran’s disability existed prior to service. Veteran indicated on his November 1967 report of medical history that he had sprained his ankles while in high school, and was treated several times by doctors for these injuries. The Veteran’s physician’s February 1969 letter also confirms the existence of his pre-service ankle injuries and the fact that the Veteran had experienced ankle pain since those injuries. Moreover, Veteran’s post-service records also indicate that his bilateral ankle disability preexisted service. In July 2010, September 2016, and August 2018, VA examiners opined that the Veteran had sprained ankles prior to service and that this should be considered a pre-service injury. The VA examiner in August 2018 specifically stated that the Veteran’s ankle sprains clearly and unmistakably preexisted his military service. The medical evidence and Veteran’s own statements establish that a bilateral ankle disability clearly and unmistakably pre-existed the Veteran’s entrance into active duty service. As a bilateral ankle disability was not diagnosed or otherwise identified on the Veteran’s pre-service examination report, the Board finds that the bilateral ankle disability was not “noted” at enlistment and the presumption of soundness is for application in this case. Although the presumption of soundness does apply, the Board finds that it is rebutted with respect to the Veteran’s bilateral ankle disability because there is clear and unmistakable evidence that Veteran’s ankle disability existed prior to service. 38 U.S.C. §§ 1112, 1132. Because the presumption of soundness has been rebutted, the Board must consider whether the pre-existing bilateral ankle disability was aggravated during service beyond the natural progression of the disability. 38 U.S.C. § 1153. A veteran may be awarded service connection for a preexisting condition, provided it was aggravated during service beyond the course of its natural progression. 38 U.S.C. § 1153. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The Veteran has consistently attributed his bilateral ankle disability to his duties as a Vietnam War infantryman. Veteran’s service treatment records document that he was treated on multiple occasions for complaints pertaining to his ankles. During Veteran’s February 1969 in-service examination, the physician noted that the Veteran stated he had experienced trouble with his ankles for several years. The physician also noted that the Veteran had continued to have pain in his left ankle, and had difficulty climbing over rough terrain while out in the field. There was no history of fracture, but the Veteran had experienced recurrent sprains. In March 1969, Veteran was instructed to see an orthopedist because he continued to have problems with his left ankle, and Gelocast and taping had not been successful. Veteran’s service treatment records show that in June 1969, Veteran went to see an orthopedist to receive further medical treatment for his ankles. After examining the Veteran’s ankles, the orthopedist concluded that the Veteran had a normal appearing ankle at that time accompanied by a normal x-ray. As a result, the Veteran was instructed to return to the field. The orthopedist noted that the Veteran may have a chronic ankle problem with calcification of the ankle joint and to see a surgeon immediately to document any ankle swelling. In July 1969, the Veteran was hospitalized for two days regarding his left ankle. The injury healed, but since then he had three episodes of left ankle effusion and pain while in service. Veteran was subsequently given a walking cast and instructed to return to the physician for reevaluation in three weeks. Lastly, on Veteran’s November 1969 report of medical history for the purpose of separation, the Veteran noted that he did have a history of sprained ankles. Post-service records weigh in favor of a finding of in-service aggravation beyond the natural progression of the disease. During Veteran’s February 1970 VA examination, the Veteran reported he injured his left ankle while in the field. X-rays of the left foot and left ankle revealed no evidence of a bone injury. The examiner did not find disease of the left ankle during the examination. In Veteran’s March 2010 VA examination, after x-raying the Veteran’s ankles, the orthopedist diagnosed the Veteran with bilateral ankle degenerative joint disease (DJD). Despite this diagnosis, the VA orthopedist noted that the Veteran’s right and left ankles showed good preservation of the joint spaces and that there were no osteophytes or erosions. The orthopedist did note slight irregularity of the right medial malleolus which was consistent with a previous avulsion fracture. Furthermore, the orthopedist did not identify any soft tissue swelling or lytic or sclerotic lesions. The orthopedist also noted that the functional effects of Veteran’s bilateral ankle disability have had significant effects on his usual occupation and these functional effects have included decreased mobility and increased absenteeism. In July 2010, the VA examiner opined that despite the fact that Veteran’s pre-service condition was treated while he was in the military, since the Veteran had the ankle condition prior to service, it should still be treated as a pre-service condition. Therefore, he was unable to resolve the issue without resorting to mere speculation. During Veteran’s September 2016 VA examination, when asked whether it is clear and unmistakable that the increase in severity during the Veteran’s period of service for his ankle disability was due to the natural progress of the disease, the examiner answered no, indicating that the evidence was not clear and unmistakable that the increase in severity during service was due to the natural progress of the disease. The examiner further opined that it was more likely during the period of 1968-1969 that while the Veteran was in service and performing higher levels of physical activity that his ankle was acutely (temporarily)- (not chronically or permanently) aggravated and that this was appropriately treated in the military with a P3 profile. Most recently, in August 2018, the VA examiner opined that it is clear and unmistakable that Veteran’s left and right ankles were not aggravated due to service. The examiner once again stated that it was more likely during the period of 1968-1969 that while the Veteran was in service and performing higher levels of physical activity that his ankle was acutely (temporarily)- (not chronically or permanently) aggravated and that this was appropriately treated in the military with a P3 profile. After reviewing the evidence of record, the Board finds that the Veteran’s pre-existing bilateral ankle disability was aggravated beyond the natural progression of the disability during service and there is not clear and unmistakable evidence that this increase was due to the natural progression of the disability. Service treatment records reveal that the Veteran’s ankle disability was incurred prior to service, and that he received medical treatment for his ankles while in service. In February 1969, the physician documented that the Veteran had requested medical attention due to continuing issues with his left ankle. The physician states that although the Veteran did go out into the field, he had difficulty climbing over the rough terrain. The physician asked that the Veteran receive additional medical attention to see what could be done to alleviate the Veteran’s recurring ankle problems. In March 1969, service treatment records document that the Veteran was seen at the 8th Field Hospital and deemed medically qualified for limited duty due to his recurrent ankle injuries. In July 1969, the Veteran was hospitalized for two days for injuries related to his ankle. Veteran’s post-service treatment records confirm that the Veteran received appropriate medical treatment for his ankles while in service, however, they do not establish that there is clear and unmistakable evidence that the Veteran’s pre-existing bilateral ankle disability was not aggravated beyond the natural progression of the disability during service. In February 1970, the VA examiner opined that the bony structures of the Veteran’s left ankle and foot show no evidence of a bone injury. This confirms that the Veteran did receive appropriate medical treatment for his ankles while in service, but it does not lay the foundation for the clear and unmistakable evidence requirement needed to rebut the presumption of aggravation. As previously noted, when addressing the issue of entitlement to service connection for a preexisting disability, the correct legal standard to apply is whether there is clear and unmistakable evidence that the preexisting disability did not undergo a worsening in service to a permanent degree beyond that which would be due to the natural progression of the disability. It is an “onerous” and “very demanding” evidentiary standard, requiring that the evidence be “undebatable.” See Cotant v. West, 17 Vet. App. 116, 131 (2003). The September 2016 VA examination opinion does not provide a sufficient basis to conclude that the Veteran’s pre-existing bilateral ankle disability was not clearly and unmistakably aggravated beyond the natural progression of the disease during service for two reasons. First, because the VA examiner was unable to opine that the evidence of record clearly and unmistakably establishes that the worsening of the Veteran’s bilateral ankle disability was due to the natural progress of the disease, meaning this fact is undebatable, the examiner’s opinion does not meet the stringent evidentiary requirement needed to rebut the presumption of aggravation. As a result, this statement is supportive of the Veteran’s claim for service connection. Second, the VA examiner, in August 2018, applied the incorrect “more likely than not” evidentiary standard when assessing whether the Veteran’s ankles were temporarily aggravated due to higher levels of physical activity while in service. The “more likely than not” standard is a lower standard than the “clear and unmistakable evidence” standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). This distinction is important, because “clear and unmistakable” evidence is an onerous evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be undebatable. Cotant v. Principi, 17 Vet. App. 116, 141 (2003). Consequently, although the examination is based on a review of the Veteran’s medical records, because the examiner did not apply the stringent and required “clear and unmistakable evidence” standard when making his decision, this assertion does not adequately or properly answer the question of whether the Veteran’s bilateral ankle disability clearly and unmistakably worsened beyond the natural progress of the disease during service. Rather it indicates that the examiner did not find the evidence undebatable, they only found their conclusion to be supported by a preponderance of the evidence. Lastly, the same VA examiner from the September 2016 VA examination has provided conflicting medical opinions regarding whether there is clear and unmistakable evidence that the Veteran’s pre-existing bilateral ankle disability was aggravated beyond the natural progression of the disease during service. In September 2016, the VA examiner stated that it was not clear and unmistakable that the increase in severity during the Veteran’s time in service was due to the natural progress of the disease. However, in August 2018, the same VA examiner stated that it is clear and unmistakable that both the Veteran’s right and left ankle were not aggravated due to service. In general, the fact that there is a conflict between two competent opinions (most notably by the same VA examiner) indicates that the evidence is not “undebatable” as required by the clear and unmistakable evidence standard. Because the evidence of record has not proven to be undebatable, the clear and unmistakable evidence standard has not been met and the presumption of aggravation has not been rebutted. In addition, the VA examiner’s August 2018 opinion once again applied the incorrect “more likely than not” evidentiary standard when assessing whether the Veteran’s ankles were temporarily aggravated due to higher levels of physical activity while in service. For the same reasons previously stated in the September 2016 VA examination analysis this assertion does not adequately or properly answer the question of whether the Veteran’s bilateral ankle disability clearly and unmistakably worsened beyond the natural progress of the disease during service. In sum, the competent medical evidence of record indicates that the Veteran had sustained a pre-service ankle injury that was aggravated beyond the natural progression of the disability during service. Conflicting VA opinions have not rebutted the presumption of aggravation because the competent medical opinions have not established that clear and unmistakable evidence exists that the Veteran’s pre-existing bilateral ankle disability was not aggravated beyond the natural progression of the disability during service. See September 2016 VA examination; see also August 2018 VA examination. Thus, the preponderance of the evidence weighs in favor of granting the Veteran’s claim for service connection for a bilateral ankle disability, and is therefore granted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals LAW CLERK FOR THE BOARD Tiffany Blackwood