Citation Nr: 20044335 Decision Date: 07/01/20 Archive Date: 07/01/20 DOCKET NO. 13-09 019 DATE: July 1, 2020 ORDER Service connection for a right ankle disorder, diagnosed as soft tissue swelling of the medial aspect of the right ankle, is granted. REMANDED Entitlement to service connection for a right eye disorder is remanded. FINDING OF FACT Resolving all doubt in his favor, the Veteran’s right ankle disorder is related to his military service. CONCLUSION OF LAW The criteria for service connection for a right ankle disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1976 to May 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January and June 2011 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office. In June 2018, the Board remanded the Veteran’s claims of entitlement to service connection for a right ankle disorder and a right eye disorder for additional development; they now return for further appellate review. The Board notes that additional evidence, to include a record of hospitalization, was associated with the record subsequent to the issuance of the May 2020 supplemental statement of the case. The Veteran has not waived Agency of Original Jurisdiction (AOJ) consideration of such evidence. However, as such is duplicative or irrelevant to the issue decided herein, no prejudice results to him in the Board proceeding with a decision at this time. 38 C.F.R. § 20.1304(c). 1. Entitlement to service connection for a right ankle disorder. In a statement received by the VA on February 15, 2019, the Veteran reported that he suffered an ankle sprain in March 1981 and that such injury caused residual problems, requiring the use of crutches later that year and causing pain and swelling in the years since his retirement from the military. The Veteran contends that service connection is, therefore, warranted for such disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 ”refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). 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). As an initial matter, the Board notes that the record reflects a current diagnosis of soft tissue edema of the medial aspect of the right ankle. In this regard, VA treatment records from January 2019 reflect such diagnosis, and a December 2018 VA medical compensation and pension examination report documents residuals of an ankle sprain from 1980. Furthermore, VA treatment records from 2016 further document swelling of the right ankle. The Veteran also reports right ankle pain. In December 2018, a VA medical examiner considered the Veteran’s right ankle disorder and, based on a lack of service treatment records available at the time, found it to be less likely than not that the Veteran’s currently diagnosed right ankle disorder was related to his military service. However, the examiner offered no further rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). In August 2019, the same VA examiner again assessed the Veteran’s right ankle disorder, this time considering all available evidence of record, to include statements made by the Veteran concerning both his in-service right ankle injury and his continuity of right ankle pain and swelling. In this regard, the examiner found it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s currently diagnosed right ankle condition is related to his military service. Thus, as such opinion included a clear conclusion with supporting data as well as a reasoned medical explanation connecting the two, it is afforded great probative weight. Id. The Board notes that available service treatment records from May 1983 document treatment of bilateral ankle pain following an in-service injury while playing basketball. Furthermore, on the Veteran’s official separation examination, his feet and lower extremities are not checked as “normal” and a note says to refer to attached notes from an orthopedic evaluation. Such notes are not included in the Veteran’s service treatment records. However, the reference to an additional evaluation does further support the finding of the August 2019 VA examiner that a positive nexus exists between the Veteran’s currently right ankle disorder and his military service. Accordingly, the Board resolves all doubt in the Veteran’s favor and finds that his right ankle disorder, diagnosed as soft tissue swelling of the medial aspect of the right ankle, is related to his military service. Consequently, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 2. Entitlement to service connection for a right eye disorder. In a statement received by the VA on February 15, 2019, the Veteran reported that he suffered an eye injury while in service in January 1981. He contends that he is, therefore, entitled to service connection for a right eye disorder. Such matter was remanded in June 2018, and the Veteran was afforded a VA examination for his eye in December 2018, accordingly. At such time, the VA examiner noted diagnoses of a corneal scar of the right eye and bilateral nuclear cataracts. The VA examiner considered the evidence of record, however, and opined that the Veteran’s currently diagnosed right eye disabilities were not related to his military service. In this regard, the examiner noted that the Veteran had excellent and equal vision in each eye when he left the military and that a loss of vision in the Veteran’s right eye was not documented until corneal trauma in 1998. Here, however, the Board notes the evidence of record indicates the Veteran experienced a loss of visual acuity in his right eye between the time of a December 18, 1979, medical examination and his separation examination in May 1983, which the VA examiner did not address when providing the opinion. Furthermore, the VA examiner did not address the Veteran’s statements regarding his experience of blurry vision following an auto accident during his time in service. In this regard, service treatment records from November 1980 and January 1981 document such complaints. Moreover, when receiving medical treatment at a VA facility in 2019, the Veteran described his in-service motor vehicle accident as causing an eye injury and requiring hospitalization for a month. The Veteran specifically reported that, at such time, he had run off the road and down an embankment, hitting his head on the windshield and causing severe trauma to his face and eye. Accordingly, the Board finds a remand is warranted for an addendum opinion addressing such lay statements and the associated symptoms mentioned in service treatment records. The matter is REMANDED for the following action: Return the record to the VA examiner who conducted the December 2018 examination referable to the Veteran’s right eye disorder or an appropriate clinician, if unavailable, for an addendum opinion. The need for additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a diagnosed right eye disorder had its onset in, or is otherwise related to, his military service. In offering such opinion, the examiner should consider and address the Veteran’s lay statements and service treatment records concerning blurry vision following his in-service motor vehicle accident, as well as his loss of visual acuity in his right eye, as documented in December 1979 and May 1983 military medical examination reports. A rationale for any opinion offered should be provided. M. M. CELLI Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.