Citation Nr: 21003219 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-13 768 112058DATE: January 21, 2021 ORDER Entitlement to service connection for a right ankle degenerative joint disease is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT 1. The Veteran is presumed sound at service entrance. 2. In-service treatment records reflect right ankle complaints, and include a notation of right ankle arthritis. 3. The Veteran has experienced pain and limitation of motion related to right ankle degenerative joint disease since his separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right ankle degenerative joint disease are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1974 to July 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision. The Veteran testified at a Board hearing in July 2015. The Veteran testified in front of a different Veterans Law Judge at another Board hearing in November 2020. At this hearing, the Veteran waived his right to a third hearing. This matter was previously remanded in June 2018 for further development. A review of the record indicates that the Board’s directives were substantially complied with, such that further remand is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a right ankle disability Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C. § 1110. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Also relevant here is the question of the Veteran’s presumption of soundness at service entrance. The presumption of soundness applies when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s right ankle disability preexisted his military service. The record on appeal shows that at his January 1974 military enlistment medical examination, the Veteran completed a report of medical history in which he specifically denied having or ever having had foot trouble, broken bones, or any other bone or joint deformity. He further denied ever having been a patient in a hospital or having had any other pertinent illness or injury. His feet and lower extremities were also normal on clinical evaluation. Although the Veteran failed to disclose a prior right ankle injury at his January 1974 enlistment examination, his in-service treatment records show that he sought treatment in early July 1974 and reported a history of a fracture to the right talus at the age of 12. On examination, his range of motion was limited. According to a radiographic report, an x-ray of the right ankle was performed at that time and was determined to be normal. Indeed, the radiologist specifically indicated that there was no evidence of fracture or dislocation, and the bony architecture of the ankle was unremarkable. The appellant was then referred to the orthopedic clinic. The referral sheet notes that the reason for the request was a possible old fracture at the age of 12, with x-ray evidence of a probable old fracture of the talus. At his July 1974 military discharge medical examination, the Veteran reported that he had a “bad ankle.” The Veteran’s lower extremities and feet were examined and determined to be normal, although the examiner noted that the Veteran was being followed in the orthopedic clinic for a talus fracture. On the day following his separation examination, the Veteran was examined in the orthopedic clinic. It was noted that he had a history of a right talus fracture at the age of 12 or 13 with intermittent pain since that time and a recent aggravation with marching and a sprain. The impression was subtalar arthritis probably secondary to old fracture. Although in-service records reveal the presence of subtalar arthritis, because the entrance examination failed to disclose any right ankle disability, the presumption of soundness attaches. Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service to overcome that presumption. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). In June 2018, the Board remanded the claim so that an examiner could address whether the Veteran’s right ankle disability clearly and unmistakably preexisted service and was not aggravated thereby. An October 2019 VA examiner concluded that the Veteran’s right ankle disability clearly and unmistakably preexisted service explaining ankle arthritis, seen so soon after service entrance, does not present as an acute condition, but corresponds with an older fracture. With respect to whether the disability was aggravated by service, the examiner expressed the view it was not permanently aggravated by service, but in doing so, only indicated it was “less likely” permanently aggravated by service. The examiner’s conclusion regarding aggravation was based on finding the in-service complaints were a natural reaction to the training and marching which would resolve with rest and avoiding repetitive stress. This recovery, it was reasoned, corresponds with the absence of any further complaints during the Veteran’s service, and that the Veteran maintained physically demanding jobs for many years post service. Since, however, the evidence must be clear and unmistakable that aggravation of the pre-existing disability did not take place, the examiner’s conclusion it was less likely than not to have occurred is an insufficient basis for finding the presumption is rebutted. In these circumstances, then, the presumption of soundness attaches. When, as here, VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn, 25 Vet. App. 231, 233. In this case, the Veteran has a current diagnosis of degenerative joint disease of the right ankle as evidenced by October 2019 VA exam. Degenerative joint disease, as arthritis, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Service treatment records show the Veteran was treated for a right ankle injury with symptoms of pain and limitation of motion in July 1974, shortly before his discharge from service. This was characterized as arthritis in an in-service orthopedic clinic note. While no treatment records exist from the applicable presumptive period within a year of service, the Board finds that the Veteran continued to experience the same symptoms from the time of the injury to the present. The Veteran is competent to report that he experienced symptoms of pain and limitation of motion during that period but did not seek treatment because he did not have insurance and needed to work to support his younger siblings. His statements and testimony are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record. (See; e.g. November 1981 private hospital records, and December 2008 and March 2009 private treatment records.) In the circumstances of this case, the Board finds the evidence to be at least in equipoise as to a nexus between the Veteran’s current right ankle degenerative joint disease and service. Accordingly, after resolving all reasonable doubt in favor of the Veteran, the Board concludes that service connection for right ankle degenerative joint disease is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Regarding the Veteran’s claims for service connection for left and right knee disabilities, the Board notes that in its 2018 Remand, it considered those claims inextricably intertwined with the service connection right ankle claim. Having concluded the ankle disability was not service-connected, the October 2019 examiner declined to provide an opinion as to whether the knee disabilities were related to the ankle disability. Since the Board has granted service connection for right ankle arthritis, and there is no medical opinion of record which addresses whether there is a link between the knee and ankle disabilities, remand is warranted to obtain such an opinion. The matters are REMANDED for the following action: 1. Provide the claims file to an appropriate VA examiner for an opinion as to whether the Veteran’s left knee meniscus tear and degenerative arthritis that led to a total knee replacement, and right knee degenerative arthritis are related to the Veteran’s right ankle arthritis. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner must opine whether the Veteran’s left and right knee disabilities are at least as likely as not (a) caused by; or, (b) aggravated (i.e., worsened) by the Veteran’s service-connected right ankle disability. The examiner is reminded that he or she must address both prongs (a) and (b) above. In addressing the above, the examiner should also specifically discuss the Veteran’s lay statements regarding onset of symptoms and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All opinions must be accompanied by a clear rationale. (Continued on the next page)   2. After the above development, and any additionally indicated development has been completed, readjudicate the claims for service connection for left and right knee disabilities on appeal. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Uller, 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.