Citation Nr: 19190834 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 13-31 596 DATE: December 3, 2019 ORDER Entitlement to service connection for left ankle degenerative joint disease and fibula-talar tear is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s left ankle degenerative joint disease and fibula-talar tear began during service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the appellant, the criteria for service connection for left ankle degenerative joint disease and fibula-talar tear are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1968 to April 1971 and from June 1971 to June 1977, which includes service in the Republic of Vietnam. His awards include the Combat Infantryman’s Badge. The Veteran died and the appellant, his surviving spouse, was substituted in March 2019. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision. In February 2018, the Board denied the claim of service connection for left ankle disability. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2019 Order, the Court approved a Joint Motion for Remand (JMR) that vacated the February 2018 Board decision. The JMR remanded the issue for further actions in accordance with its decision to include discussion of continuity of symptomology for the left ankle condition as well as whether a February 2012 VA examination was adequate. Entitlement to service connection for left ankle degenerative joint disease and fibula-talar tear Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Veteran contended that he had left ankle disability which had its onset in service. For the following reasons, the Board finds that at the time of the Veteran’s death, he had current diagnoses of left ankle degenerative joint disease and fibula-talar tear, and that the evidence is at least evenly balanced as to whether these disabilities began during active service. The Veteran’s medical records, including a November 2013 VA podiatry note, show he had current diagnoses of left ankle degenerative joint disease and fibula-talar tear at the time of his death. There is also evidence of left ankle/foot injuries in service and evidence of continuous left ankle symptoms in the years since service. In this regard, service treatment records reveal numerous complaints of left ankle and foot pain. An emergency treatment report, dated January 1969, reveals that the Veteran “turned his left ankle” in a parachute jump. The condition was diagnosed as a mild sprain. Other treatment records dated from June to October 1976 referenced complaints of left foot tenderness, pain to the left arch and heel after prolonged walking, and slight swelling to the medial plantar area near the arch. In September 1976, the Veteran received treatment for a pain to the left foot following a helicopter jump. The Veteran was briefly placed on profile due to his left ankle condition. Moreover, the Veteran reported that he sustained a left ankle/foot injury when he stepped on a landmine in Vietnam. His service personnel records reflect that he served in Vietnam and his receipt of the Combat Infantryman’s Badge confirms that he engaged in combat with the enemy. Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154 (b). The combat rules not only reduce the evidentiary burden for establishing in-service injury but allow a combat veteran to use “satisfactory lay or other evidence” to establish that he incurred the disability itself in service, even in cases where “there is no official record” that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). The Veteran’s reports of a left ankle/foot injury from a landmine explosion in combat situations in service are satisfactory evidence and the reports are consistent with the circumstances of his service in Vietnam. There is no clear and convincing evidence to the contrary. Also, the Veteran submitted statements from fellow service members dated in April 2013, in which they reported that they had been present with the Veteran in Vietnam and witnessed his treatment for a left ankle/foot injury from a landmine. Therefore, a left ankle/foot injury from a landmine explosion in service is established. Moreover, the Veteran’s post-service medical records and lay statements indicate that his left ankle symptoms (including ankle pain) continued in the years since service until the time of his death. The Veteran was competent to report continuous left ankle symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Also, there no evidence that explicitly contradicts the Veteran’s reports and his reports are generally consistent with the evidence of record. Therefore, the Board concludes that his reports of continuous left ankle symptoms in the years following service are credible. In February 2012, the Veteran was afforded a VA examination to assess the nature and etiology of his claimed left foot and ankle condition. Following a review of the clinical evaluation and evidence of record, the VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran’s left ankle and foot condition were incurred in or caused by the claimed in-service injury, event, or illness. In reaching the stated conclusion, the examiner noted that the evidence of record did not establish the existence of a chronic ankle condition in service and post-service treatment records did not reveal documentation of chronic ankle condition within one year of discharge. Thus, the examiner opined that the minimal spurring noted during the examination was likely age-related and did not result from the left ankle mild sprain noted during the Veteran’s active service. The February 2012 opinion is of little, if any, probative value because it does not take into account the Veteran’s competent and credible reports of continuous left ankle symptoms in the years following service or his reports of a left ankle/foot injury in service from a landmine explosion. In this regard, a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history, even if recorded in the course of the examination. Dalton v. Peake, 21 Vet. App. 23 (2007). This is particularly true in the case of a combat veteran. Congress enacted the combat statute because of its concern that combat veterans faced “major obstacle[s]” when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service. Reeves, 682 F.3d at 998 (citing H.R. Rep. No. 1157, at 3 (1941)). In many instances, medical records do not survive combat conditions. Id. Moreover, due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries. Id. Thus, to the extent that the opinion was based on a lack of report of chronic ankle problems during service, this is precisely the reasoning that the combat law was designed to prevent. In sum, the evidence reflects that the Veteran experienced left ankle injuries in service and that there were continuous left ankle symptoms in the years following service until his death. He was also diagnosed as having current left ankle degenerative joint disease and fibula-talar tear at the time of his death. There is no adequate medical opinion contrary to a conclusion that the left ankle degenerative joint disease and fibula-talar tear had their onset in service. Thus, the evidence is at least evenly balanced as to whether these disabilities had their onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, entitlement to service connection for left ankle degenerative joint disease and fibula-talar tear is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Garrett Morales, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.