Citation Nr: 21062950 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 20-24 310 DATE: October 12, 2021 ORDER Service connection for a functionally impairing left ankle disability is granted. Service connection for chest pain is denied. FINDINGS OF FACT 1. Currently the Veteran experiences functional impairment in the left ankle due to pain, which results in difficulty walking, standing, and weight bearing. 2. During service the Veteran sustained an inversion injury with a grade three sprain to the left ankle. 3. The current left ankle functional impairment was incurred in service. 4. The Veteran's chest pain is a symptom of the already service-connected esophageal disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a left ankle disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). 2. The criteria for service connection for chest pain are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from June 2004 to April 2005. The Veteran also had periods of duty with the Marine Corps Reserve. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Veteran testified at a May 2021 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for a left ankle disability, no further discussion of the duties to notify and assist is necessary is to that issue. As to the issue of service connection for chest pain, concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice during the course of this appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and obtained an adequate VA examination. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Service Connection Law and Regulations Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served 90 days or more of active service, and a chronic disease become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1133, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Veteran's left ankle functional impairment is not a chronic disease under 38 C.F.R. § 3.309(a). With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service Connection for a Left Ankle Disability is Granted. The Veteran seeks service connection for a left ankle disability related to an in service ankle sprain. The Veteran testified that he experiences functional impairment in the left ankle due to pain, which results in difficulty walking, standing, and weight bearing. While there is not a medical diagnosis of a specific left ankle disability, the Board finds that the evidence shows current functional impairment that equates to disability. The Veteran testified at a May 2021 virtual Board hearing that he experienced functional impairment in the left ankle due to pain, which results in difficulty walking, standing, and weight bearing. After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether there was an onset of symptoms of a left ankle disability in service and since service separation, i.e., whether the current left ankle disability was "incurred in" service. Review of the service treatment records reflect that in August 2004 the Veteran underwent X-rays of the left ankle following an inversion injury with a grade three sprain. Per the May 2021 testimony, the Veteran credibly testified to having residual pain symptoms stemming from that in-service injury. The Veteran testified that symptoms of the in-service left-ankle injury have continued from service separation until the present. The Veteran's May 2021 testimony is consistent with the medical evidence of record that shows there was an old ankle injury. Specifically, in November 2009, the Veteran sought treatment for an "old left ankle injury." Further, the Veteran again sought treatment for left ankle pain in December 2012 and July 2014. At the time of the July 2014 treatment, the Veteran specifically advanced having chronic worsening left ankle pain. While there was a VA ankle examination May 2016, after which the VA examiner found no currently diagnosed left ankle disability and, therefore, offered no nexus opinion, that nonopinion is of no value as the Veteran does in fact have a functionally impairing left ankle disability for VA rating purposes. As the Board finds the evidence of record sufficient to grant service connection for a left ankle disability, remand for a new VA examination is unnecessary. The Board finds that the evidence is at least in equipoise on the question of whether the Veteran had left ankle disability symptoms that began during service and continued since service separation, thus tending to show direct service incurrence. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a),(d). As discussed below, the Board is granting the service connection claim based on evidence, including that pertinent to service, which establishes that the left ankle disability began in service and was so "incurred in" service. The finding that the Veteran had left ankle disability symptoms since service is supportive of the claim overall because it tends to show that the symptoms that began in service were the basis for the later functional impairment of the left ankle. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent on in-service and post service symptoms - dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus - that were later diagnosed as Meniere's disease). The weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's left ankle disability was related to service, that is, was incurred in service. In this case, as there is no adequate medical nexus opinion as to the etiology of the Veteran's left ankle disability, the Board must look to the remaining evidence of record to determine whether service connection is warranted. Here, the totality of the lay and medical evidence reflects that the Veteran had symptoms of a left ankle disability during service following a severe sprain. Following service separation, the Veteran sought treatment for left ankle pain on multiple occasions, and even attributed the pain to an old (in-service) left ankle injury. Such evidence tends to show that the symptoms of a left ankle disability had onset during service, that is, shows that a left ankle disability was "incurred in" active service. See 38 C.F.R. § 3.303(d). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for a functionally impairing left ankle disability have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service Connection for Chest Pain is Denied. Initially, the Board notes that in a corresponding Appeals Modernization Act (AMA) decision, the Board has granted service connection for an esophageal disability, to include gastrointestinal reflux disease (GERD) and esophagitis. Having reviewed all the evidence of record, lay and medical, the Board finds that the evidence shows that the Veteran's chest pain is a symptom of the now service-connected esophageal disability. At the time of the May 2021 virtual Board hearing, the Veteran specifically testified that the recurrent chest pains began at the same time as the esophageal disability symptoms, and that it was his belief that the chest pains were due to the now service-connected esophageal disability. Subsequent to the May 2021 virtual Board hearing, the Veteran submitted an August 2021 treatment/opinion letter from two gastroenterology physicians who have treated the Veteran since December 2007. Per the treatment letter, the Veteran's gastrointestinal symptoms and diagnoses included chronic abdominal pain, chronic idiopathic constipation, rectal pain, alternating constipation and diarrhea, a personal history of colon adenoma, chronic chest pain, GERD, eosinophilic esophagitis, and dysphagia. Available VA treatment records also support a finding that the Veteran's chest pain is due to the now service-connected esophageal disability. Per an April 2019 VA treatment record, a VA physician specifically noted that the Veteran's esophageal disability resulted in "concomitant persistent chest discomfort." Following a VA heart examination in March 2016, the VA examiner explicitly opined that the Veteran's chest pain was non-cardiac in nature. The available lay and medical evidence of record supports such a finding, to include the evidence discussed above. In sum, the weight of the evidence, to include the Veteran's own lay statements, supports that the Veteran's chest pain is due to the now service-connected esophageal disability. Pursuant to Diagnostic Code 7346, under which GERD is often rated by analogy, substernal or arm or shoulder pain is explicitly considered in the VA rating criteria. 38 C.F.R. § 4.114. As the Veteran's chest pain will be rated alongside the now service-connected esophageal disability, separately granting service connection for chest pain would result in improper pyramiding, that is, double compensation for the same symptom. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). As the preponderance of the evidence is against a grant of service connection for chest pain, the benefit of the doubt doctrine is not for application, and service connection for chest pain must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.