Citation Nr: 1815784 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-22 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1980 to March 1981, from November 2001 to October 2002, from March 2005 to June 2006, from July 2006 to June 2008, and from October 2009 to October 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The RO initially denied service connection for a right ankle disability in a July 2012 rating decision. On that occasion, the RO determined that the evidence failed to establish an in-service event, injury, or disease. This decision became final, as the Veteran did not appeal the denial or submit any pertinent evidence within the appeal period. Thereafter, the Veteran initiated a claim to reopen his previously denied claim. Service treatment records (STRs) indicate the Veteran suffered a right ankle injury while in service. (See the July 2010 sick slip and the August 2010 radiologist's report.) The Board finds this evidence to be new and material, as it relates to unestablished facts, and raises a reasonable possibility of substantiating the Veteran's claims. See 38 C.F.R. 3.156(a) (2017). Thus, reopening of the Veteran's claims is warranted. In December 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Additional evidence related to the Veteran's right ankle disability was associated with the record after the November 2014 supplemental statement of the case (SSOC), notably STRs. See 38 C.F.R. § 20.1304. The Veteran has waived Agency of Original Jurisdiction (AOJ) review of this evidence; thus, the Board may properly consider it in adjudicating the Veteran's claim. (See the Statement in Support of Claim received in December 2016.) FINDING OF FACT The Veteran's right ankle disability is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a right ankle disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran seeks service connection for a right ankle disability, which he contends originated in service and continues in the present. The medical evidence of record confirms the Veteran has a current diagnosis of right peroneal subluxation. (See VA treatment records dated May 2012 and May 2014.) In his December 2016 hearing, the Veteran testified that he injured his right ankle in 2009 while deployed in Iraq. The record indicates the Veteran served in Iraq from December 2009 to August 2010. Further, STRs indicate the Veteran suffered a right ankle injury in the line of duty. (See sick slips dated May and July 2010.) Additionally, X-Rays of the right ankle performed in August 2010, upon the Veteran's return from deployment, showed a small plantar spur. Moreover, the radiologist noted the Veteran suffered a right ankle injury at the beginning of his deployment. As such, the Board finds sufficient credible evidence to concede the Veteran sustained an in-service right ankle injury. Therefore, the central issue that must be resolved at this time is whether the Veteran's current disability originated during service or is otherwise related to his in-service ankle injury. The Veteran has reported that he has experienced ongoing problems with his right ankle since his in-service injury. VA treatment records from December 2011 to February 2016 indicate that the Veteran has reported right ankle symptoms including pain, swelling, and crepitus. The Veteran has been treated by VA podiatrists on several occasions since his discharge from active duty in October 2010. In May 2010, a VA podiatrist prescribed the Veteran an ankle splint, noting that surgery could be required. In addition, in June 2014, the Veteran was assigned a Permanent Physical Profile of "2" for lower extremities, which is indicative of a medical condition or physical defect that may require some activity limitations. Further, chronic right ankle pain was noted by the examining physician. The Veteran was afforded a VA ankle examination in August 2013. The examiner stated there was no pathology to render a right ankle diagnosis. The Veteran was afforded an additional VA ankle examination in June 2016. On that occasion, the examiner noted a diagnosis of tendonitis/right peroneal tendon subluxation. Moreover, the examiner opined that the Veteran's right ankle disability was at least as likely as not incurred in or caused by the Veteran's in-service injury. As previously noted, this appeal turns on whether there is a nexus between the Veteran's current disability and his in-service injury. A VA examiner has determined the Veteran's current right ankle disability was caused by his ankle injury in service. The examiner also provided a competent rationale to support his conclusion. Accordingly, a nexus to service is established. To the extent the August 2013 VA examiner determined that a diagnosis could not be provided, the Board finds this opinion to be of limited probative value, as the examiner failed to adequately consider the Veteran's competent reports. Further, this opinion is not consistent with the record as a whole, notably the May 2012 and May 2014 diagnosis of right peroneal subluxation. In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran's currently diagnosed right ankle disability and his in-service injury is at least in equipoise with the evidence against a nexus. Therefore, the Veteran is entitled to service connection for his right ankle disability. ORDER Entitlement to service connection for a right ankle disability is granted. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs