Citation Nr: 18160930 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 09-35 181 DATE: December 28, 2018 ORDER Entitlement to service connection for a chronic low back disability manifested by pain is granted. Entitlement to service connection for a chronic right ankle disability manifested by pain is granted. FINDINGS OF FACT 1. A chronic low back disability manifested by pain with functional impairment affecting earning capacity had onset during service. 2. A chronic right ankle disability manifested by pain with functional impairment affecting earning capacity had onset during service. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic low back pain are met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). 2. The criteria for service connection for chronic right ankle pain are met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Marine Corps from August 1987 to September 2007. The Veteran’s awards include the Combat Action Ribbon. These matters come before the Board of Veterans’ Appeals (Board) from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This claim was previously remanded by the Board in December 2017. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, a 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21Vet. App. 319 (2007) (finding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the adjudication of the claim). However, pain resulting in functional impairment affecting earning capacity may constitute a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Service connection for that disability manifested by pain is appropriate when a nexus between service and current disability is established. The Veteran alleges that low back and right ankle disorders, including pain, began during service and have existed since that time. See October 2007 claim. After a review of the record, the Board finds that service connection for lumbar spine and right ankle disorders, both manifested by pain, is warranted. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). In a December 2007 VA examination report, the VA examiner diagnosed chronic low back pain that resulted in significant occupational effects. A right ankle examination similarly resulted in a diagnosis of right ankle pain with significant occupational effects. Although x-ray imaging was normal for both joints, and the examiner was unable to render a more specific diagnosis due to insufficient information, the diagnosis of pain was provided to account for significant functional impairment in the low back and right ankle. Accordingly, the Board resolves reasonable doubt in the Veteran’s favor and finds that a present disability is shown. Second, the Board finds that there was an in-service injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). An August 1987 service treatment record (STR) noted the Veteran’s hand and ankle injury and the need for an ankle wrap. A December 1989 STR noted the Veteran had right ankle pain for the past two days after landing on it wrong while playing basketball. He had slight edema and tenderness. He reported a history of a right ankle fracture in 1988 when he landed on his toes first, then inversion and throbbing pain. A December 1989 x-ray ruled out fracture. A second December 1989 STR noted that the Veteran had an ankle injury 10 days prior that was deemed a first degree sprain. He continued to have minimal edema distal to the lateral malleolus, and tenderness to the same. He was noted to have a resolving ankle sprain. The STRs also show that the Veteran was involved in a motor vehicle accident in November 2005. Subsequent STRs from December 2005 document significant back symptoms. In June 2006, the Veteran showed chronic recurrent lumbago that began after the November 2005 accident. This record is also consistent with an earlier consultation in April 2006. In short, multiple STRs document recurrent treatment for right ankle and low back symptoms. Thus, the second element of service connection is met. Third, the Board finds that the evidence of record supports a finding that the chronic low back pain and right ankle pain are related to active service. Significantly, the December 2007 VA examination showing these diagnoses was provided shortly after the Veteran separated from service in September 2007. Thus, the presence of low back and right ankle pain was present within two months of discharge. Additionally, the Veteran has provided competent and credible testimony that the pain has continued since that time. Accordingly, the record demonstrates that the Veteran’s symptoms initially manifested in service and have persisted into the current claim and appeal period. A nexus is therefore shown. Because all three elements are shown for the Veteran’s disability of the right ankle and low back that is manifested by pain, service connection is warranted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel