Citation Nr: 20007401 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 14-10 751A DATE: January 30, 2020 ORDER Service connection for arthritis and recurrent strain of the left ankle, based on service aggravation, is granted. REMANDED Service connection for a hip disorder. Service connection for a low back disorder.   FINDING OF FACT The Veteran’s pre-existing left ankle disorder was aggravated during service. CONCLUSION OF LAW The criteria for service connection for arthritis and recurrent sprain of the left ankle, based on service aggravation, have been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to March 1971. The case is on appeal from an August 2010 rating decision. In September 2014, the Veteran testified at a Board hearing. In a September 2015 decision, the Board remanded the case for additional development. Service connection for a left ankle disorder. A. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during that 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; 38 C.F.R. § 3.306. B. Discussion The Veteran asserts that a preexisting left ankle disorder was aggravated by service, resulting in a current left ankle disability, to include arthritis. The Veteran’s DD FORM 214 shows service in Vietnam from April 1970 to March 1971. Service personnel records (SPRs) associated with the file in December 2015 pursuant to the Board’s remand reflect that the Veteran was a cannoneer and involved in combat during service in Vietnam. Such hardships of service warrant consideration of the provisions set forth in 38 C.F.R. § 3.306(b)(2). At the September 2014 Board hearing, the Veteran testified that at the induction center in Seattle, Washington, he provided a written recommendation from his family doctor to the effect that he was not fit for active duty based on his history of ankle strains. The Veteran stated that after he sprained his ankle during basic training, he was given a profile so that he would not be assigned to an infantry unit. He noted that he was subsequently deployed to Vietnam with an artillery unit, with duties that required heavy lifting, to include hundreds of sandbags and 50 gallon drums, on a regular basis. He stated the following: On one particular event, after landing on a hilltop in Cambodia, several pallets of 105 rounds slid down [40 feet] into a mud ravine. I and another cook were told to hump them back up to the guns while they were firing a mission to support the infantry troops. About four, four to five hours later, we got done. It was late in the evening and pouring rain. I collapsed in the mud. When I came to the next morning, I could not hear and my back and legs and ankle were very swollen and sore. This type of repeated activity I believe greatly contributed to the condition I’m in today. Consistent with the Veteran’s testimony, is an April 1968 letter from the Veteran’s private physician, Dr. Dahl, pertaining to the Veteran’s left ankle. See service treatment records (STRs). Dr. Dahl reported that the Veteran had a widened joint mortise of the left ankle with recurrent inversion. The letter is date stamped later that same month as follows: “LETTER REVIEWED AND CONSIDERED IN EXAMINEE’S PHYSICAL PROFILE.” The service entrance examination report, which was completed in August 1969 when the Veteran entered active duty, notes questionable left ankle symptoms in section number 73 of the report. On the accompanying Report of Medical history it was noted that the left ankle was symptomatic, and reference was made to an attached letter. The Veteran’s STRs in August 1969 reflect complaints of pain and swelling in the left ankle, and a history of seven sprains of the left ankle in the previous few years was noted, as well as a severe sprain of the foot when pole vaulting in high school. The examiner reported pain and swelling in the left ankle, as well as pain beneath the lateral malleolus of the left foot. The impression was chronic [illegible] ligaments with a tendency for sprain. On orthopedic evaluation, the diagnosis was left ankle sprain, and he was profiled for a swollen left ankle. Restrictions were no crawling, stooping, running, jumping, or prolonged standing or marching for 5 days. The impression of x-ray examination of the left ankle was calcific density lying [illegible] the lateral malleolus of the left ankle noted to represent an old avulsive fracture fragment. Orthopedic records in September 1969 reflect recent immobilization of the left ankle. Laxity of the lateral ligament of the left ankle was noted to predispose him to recurrent sprain. The recommendation was as follows: When he returns to basic he should have a temporary L2 [illegible] profile x 90 days to include no running on uneven ground - he should have non-infantry MOS following basic. The Board notes that the Veteran’s characterization of how his left ankle was aggravated by heavy lifting and pushing and pulling during service, when analyzed with the medical evidence found in his STRs, is consistent with such hardships experienced during his wartime service. This is the type of symptomatic manifestation covered by 38 C.F.R. § 3.306(b)(2). Accordingly, a rebuttable presumption of aggravation of a pre-existing left ankle condition has been established. Id. In January 2016, the Veteran was afforded a VA examination in regard to his left ankle condition. He was diagnosed with recurrent left ankle sprains and osteoarthritis of the ankle joint. The VA examiner opined that it was less than likely that the Veteran’s preexisting left ankle condition was aggravated by service, noting no significant ankle injury or symptoms during service, and that osteoarthritis of the left ankle appeared to be a natural progression of the preexisting recurrent ankle sprain condition. The VA examiner’s opinion may not have taken into consideration the Veteran’s statements as to the nature of his aggravation and the circumstances of his service, and, seems to have primarily relied on a finding that there was no significant ankle injury or symptoms during service to reach the conclusion, as the opinion does not include medical facts and principles supporting that finding. See 38 C.F.R. § 3.306(b). The Board notes that x-ray examination of the left ankle in March 2006 was noted to be consistent with old trauma. See November 2015 private treatment records, to include March 2014 x-ray examination report. In addition, the VA examination report reflects that left lower extremity symptoms due to back surgery in 2005 involved a nerve not the ankle joint. As such, the presumption of aggravation has not been rebutted with clear and convincing proof. There is not sufficient evidence that the symptomatic manifestations during combat service were due to the natural progress of the disease. The January 2016 VA examination report shows the existence of a current left ankle disorder. Therefore, after resolving reasonable doubt in the Veteran’s favor, service connection for a pre-existing left ankle disorder is warranted based on service aggravation. See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). See also 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for a hip disorder. 2. Service connection for a low back disorder. The Veteran maintains that he has a hip disorder and a low back disorder as a result of service or secondary to his left ankle disorder for which service connection is established in the decision above. The Veteran was afforded VA examinations in January 2016. Although it was noted to be less than likely that hip pain/strain or arthritis of the lumbar spine was related to service or secondary to the left ankle disorder, the opinion appears to be based on the absence of documentation in the STRs. A medical opinion based solely on the absence of documentation in the service treatment records or that fails to take into account lay statements is inadequate. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner’s opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran’s report of in-service injury but relied on the service medical records to provide a negative opinion). The Board notes that even without a current diagnosis, the Veteran’s reports of pain may constitute a current disability to the extent they result in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain causing functional impairment can constitute a current disability). Accordingly, the Board finds a remand is warranted for a new VA examination and medical opinion with respect to service connection for a hip disorder and low back disorder, to include as secondary to the left ankle disorder. In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records dated from February 2015. 2. Schedule the Veteran for a VA examination in connection with the hip and low back disorders. After a review of the file, the examiner should provide an opinion on the following: Identify the Veteran’s current hip and low back disorders, which may include pain alone that rises to the level of functional impairment. If there is no diagnosis and no functional impairment, an explanation should be provided. Then, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any hip or low back disorder (or functional impairment of such), to include arthritis, had its onset during, or is otherwise related to, active service. And also whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hip or low back condition was caused, or has been aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of permanence), by service-connected arthritis and recurrent sprain of the left ankle. In rendering the opinion, consideration should be given to the Veteran’s reports of symptoms during and following service. The examiner should provide a complete rationale for all opinions expressed. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.