Citation Nr: 20021487 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-65 281 DATE: March 26, 2020 ORDER Entitlement to service connection for a left ankle disability is granted. FINDING OF FACT The most probative evidence reflects that the Veteran’s current left ankle disability was incurred in-service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left ankle disability have been met. 38 U.S.C. §§ 1110, 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 Marine Corps from July 1995 to July 1999. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for a left ankle sprain. In April 2017, VA received the Veteran’s Notice of Disagreement. Following the issuance of a Statement of the Case in October 2017, the Veteran perfected a timely appeal via his submission of a VA Form 9 in December 2017. The Veteran was afforded a video hearing before the undersigned in February 2020. A transcript is of record. 1. Entitlement to service connection for a left ankle sprain disability is granted. The Veteran contends that his current left ankle disability had its inception during active duty when he sustained a third degree left ankle sprain. In pertinent part, the Veteran’s service treatment records show that in September 1996, he was treated for a right ankle injury after stepping in a hole. Examination showed edema, tenderness to palpation, decreased range of motion and laxity. X-ray studies were negative. The assessment was first degree sprain. In April 1998, the Veteran was treated for a left ankle injury which he sustained playing basketball. Examination showed effusion and swelling. X-ray studies were negative. The assessment was third degree left ankle sprain and he was put on light duty for 10 days. The remaining service treatment records are negative for pertinent complaints or abnormalities. In September 2016, the Veteran submitted an application for VA compensation benefits seeking service connection for multiple disabilities, including a right ankle disability. He did not list a claim of service connection for a left ankle disability on the application although he attached copies of service treatment records documenting treatment for both the right and left ankle injuries noted above. In support of the Veteran’s application, the RO received post-service VA clinical records showing that in March 2001, he was given a referral to the orthopedic clinic after he complained of pain and decreased range of motion in the left ankle since injuring it while on active duty. The provisional diagnosis was osteoarthritis of the left ankle. A subsequent notation, however, indicates that the Veteran failed to appear for his April 2001 appointment. In January 2004, the Veteran’s complaints included difficult range of motion in the ankles. In October 2016, it was noted that the Veteran had a history of osteoarthritis in multiple joints, including his ankles. He reported that his ankles were stiff in the mornings. In February 2017, the Veteran was afforded a VA medical examination in connection with his claim of service connection for a right ankle disability. He reported that he had injured his right ankle the first time in 1996 and was told he had a sprain. He indicated that he subsequently rolled both ankles a couple of times while on deployment but could not receive treatment because he was on deployment. He indicated that he continued to have problems with both ankles since that time, including pain and popping with outward pressure. He indicated that standing for a long period exacerbates his pain. He also indicated that he could not run. Examination showed painful motion, pain with weight bearing, and localized tenderness, bilaterally. X-ray studies were negative. The examiner noted that the Veteran’s current left ankle disability was “related to ankle strain on the left however out of scope of focused exam.” After examining the Veteran and reviewing the claims file, the examiner concluded that the Veteran’s claimed right ankle disability, currently diagnosed as right ankle sprain, was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that service treatment records confirmed that in September 1996, the Veteran was diagnosed as having a right ankle sprain. The examiner further noted that the Veteran reported that he thereafter rolled both ankles a couple of times again while on deployment and that both ankles had continued to bother him since that time. In March 2017, the Veteran telephoned the RO and clarified that he wished to include a claim of service connection for a left ankle disability, in addition to his right ankle disability. In a March 2017 rating decision, the RO, in pertinent part, granted service connection for right ankle sprain and assigned an initial 10 rating, effective September 8, 2016. The RO denied service connection for a left ankle disability, finding that the record did not contain evidence of a current disability. The Veteran appealed the RO’s denial of service connection for a left ankle disability, explaining that he had documentation that he had injured his left ankle while on active duty and that he had continued to experience pain, decreased range of motion and instability since the injury. The Veteran was afforded a VA medical examination in October 2017. He reported a history of a left ankle injury in April 1998. He indicated that his condition had been progressive since the injury and his current symptoms included chronic pain in the left ankle. He indicated that he was now no longer able to play sports due to both ankles rolling. After examining the Veteran and reviewing the record, the examiner diagnosed the Veteran as having left ankle sprain. She concluded that the left ankle disability was less likely than not (less than 50 percent probability) due to military service because “[t]here is a single note describing the acute sprain. There are no records noting treatment or follow up throughout the years and no imaging. Also, no civilian records of continued problems. There is no imaging and no ortho or sports medicine workup in order to relate to service.” At his February 2020 Board hearing, the Veteran testified that since separation from service, he had continued to experience chronic ankle pain and swelling which he generally self-treated with over-the-counter medication and icing. He indicated that he had also tried physical therapy but continued to experience chronic symptoms which were becoming worse. In general, in order to establish service connection 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 in or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt rule shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Applying the facts in this case to the legal criteria set forth above, the Board finds that service connection for a left ankle disability is warranted. With respect to the first element necessary to establish service connection, the Board finds that the record is sufficient to establish that the Veteran has a current disability. As set forth above, the Veteran was afforded VA medical examinations in connection with his claims, both of which showed diagnoses of left ankle sprain. With respect to the second element, the Veteran’s service treatment records document a history of a third degree left ankle sprain in April 1998. In addition, in clinical settings, the Veteran reports that he sustained additional rolling injuries during a period of deployment. With respect to the third element, a nexus between the current disability and the in-service injuries, the record contains a positive nexus opinion given by the February 2017 VA examiner. Although that examination was conducted for the right ankle, the examiner provided a positive opinion regarding the left ankle as well. Moreover, the rationale he provided for the right ankle disability was written broadly enough to cover the left ankle disability, particularly because the same reasoning and facts apply, other than that the initial right ankle sprain occurred in 1996 while the initial left ankle sprain occurred in 1998. Otherwise, the Veteran reported continuous ankle symptomatology since the in-service injuries. The Board has also considered the negative October 2017 VA medical opinion, but assigns it little probative weight as the examiner’s opinion was based on an inaccurate factual premise, i.e. that there was a lack of civilian records of continued ankle problems. As set forth above, however, the record on appeal contains post-service clinical records dating from 2001 documenting complains of ankle pain since an in-service injury. In view of the foregoing, the Board finds that the evidence is at least relative equipoise. Weighing the positive and negative evidence of record and taking into consideration the competent and credible statements of the Veteran, the Board will resolve the reasonable doubt in the Veteran's favor and find that the evidence supports the grant of service connection for a left ankle disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven Grodnitzky, 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.