Citation Nr: 20052988 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 19-31 047 DATE: August 10, 2020 ORDER Service connection for a left ankle disability is granted. FINDING OF FACT The evidence shows that the Veteran’s left ankle disability either began during or was otherwise caused by his military service. CONCLUSION OF LAW The criteria for service connection for a left ankle disability have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1954 to July 1956. It appears that the Veteran’s service treatment records (STRs) and his military personnel records were destroyed by fire in July 1973 at the National Personnel Records Center (NPRC). The only STR of record is the Veteran’s July 1956 separation evaluation, which is absent any complaints of any left ankle condition. In such a case, VA has a heightened duty to assist in the development of the case, as well as a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997). Generally, VA will make as many requests as necessary to obtain records. However, those efforts will end when VA concludes that the records sought do not exist or that further efforts would be futile. 38 C.F.R. § 3.159 (c)(2)(i). When VA is unable obtain records, it must notify the Veteran, by identifying the missing records, setting forth the efforts made to obtain them and explain that the claim will be decided on the existing evidence of record. 38 U.S.C. § 5103A (b)(2)(A). However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215 at 217-18 (2005) (Court declined to apply “adverse presumption” against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). In September 2018, the regional office (RO) advised the Veteran that his military records were destroyed in a 1973 fire. The letter instructed the Veteran to complete an enclosed NA Form 13055 and return it to the RO. There is no evidence of record that the Veteran ever completed and returned the requested NA Form 13055. In September 2019, the RO contacted the Veteran by telephone, informing him that his STRs were destroyed by fire. The RO informed the Veteran of the requirements for service connection and explained the appeal process to the Veteran, and he did not have any questions in regard to the appeal process. All reasonable measures to assist the Veteran in obtaining available medical evidence pertinent to and contemporaneous with his military service have been carried out, documented and the Veteran informed. Additionally, neither the Veteran nor his representative has alleged the inadequacy of VA’s efforts concerning the destroyed records or raised the issue anywhere in the record. There is no other suggestion that there are any available records that could reasonably be obtained. The Veteran asserts that he sprained his left ankle twice in 1955. He reported that he went to sick call in May 1955 for the first ankle sprain and received limited duty for three weeks. The Veteran’s post-service medical records indicate that he first sought medical attention for his left ankle in July 2009, after a motorcycle fell on it, which caused a fracture of the lateral malleolus. See Private Treatment Record dated July 6, 2009. He reported that the onset of his symptoms was a week earlier. Id. The Board also notes the September 2009 phone call with the RO, corroborates this, as the Veteran reported that he injured his ankle in 1955, but did not receive any treatment until 2009. The Veteran provided a private disability benefits questionnaire (DBQ), dated July 30, 2019. After imaging studies was undertaken, the podiatrist noted that the Veteran was diagnosed with osteoarthritis of the left ankle. The podiatrist noted the Veteran’s in-service report of ankle sprains in 1955. The podiatrist opined that it was as likely as not that the Veteran’s ankle sprains while deployed resulted in the Veteran’s posttraumatic osteoarthritis. Here, the Veteran’s STRs have been destroyed and the Veteran’s account of having a sprained ankle cannot be corroborated. However, the Board notes that the Veteran is competent to assert the occurrence of an in-service injury. See Bennett v. Brown, 10 Vet. App. 178 (1997). The Board believes the Veteran’s reports of spraining his ankle two times in 1955 to be credible. The only medical opinion of record links the current disability to the ankle sprains in service. Accordingly, the criteria for service connection have been met, and service connection for a left ankle disability is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.