Citation Nr: 21064632 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-44 994 DATE: October 21, 2021 ORDER Service connection for a right ankle disability is granted. Service connection for a left ankle disability is granted. FINDING OF FACT The Veteran's bilateral ankle disabilities are causally related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability, variously diagnosed, have been met. 38 U.S.C. §§ 1110, 1131, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for a left ankle disability, variously diagnosed, have been met. 38 U.S.C. §§ 1110, 1131, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1972 to November 1974, including foreign service. He testified during an October 2020 virtual hearing. A transcript of this proceeding has been associated with the record. These appeals were then remanded by the Board in March 2021 for additional development which has since been completed, to include the obtainment of updated treatment records and a pertinent VA examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection The Veteran remains in pursuit of direct service connection for bilateral ankle disabilities. The Board will limit its analysis accordingly. As these appeals require similar analyses, they will be addressed simultaneously herein. Thus, service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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 by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In March 2021, the Board observed that the record was in controversy as to whether the claimed disabilities preexisted service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Upon considering the evidence of record, the Board found that the presumption of soundness attached to this case. With contemporaneous review of the file, the Board finds no good cause to disturb its prior finding in this respect, and will proceed on a direct basis only. In doing so, the Board first finds competent evidence of current disabilities. Notably, the Veteran was diagnosed with right lateral collateral ligament sprain (chronic/recurrent), right ankle instability, and bilateral degenerative arthritis during a series of May 2021 VA examinations. Concurrent VA treatment records also document chronic pain, instability, and degenerative changes bilaterally. Accordingly, the first element of direct service connectioncurrent disabilities, hereinafter classified as bilateral ankle disabilities, variously diagnosedhas been met for both appeals. Next, the Veteran has offered multiple theories of entitlement in this case. As relevant to the current discussion, he associates his current disabilities with the physical demands of service. During the October 2020 hearing, he spoke of chronic bilateral foot and ankle pain due to basic/combat training, particularly as related to his military occupational specialty as a gunner. Given his chronic in-service pain, he was eventually placed on an L2 profile for injuries to the lower extremities in August 1973. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Miller v. Wilkie, 32 Vet. App. 249 (2020). In this respect, the Board notes that the Veteran's service treatment records (STRs) document frequent treatment for bilateral foot symptoms, but not ankle. Rather, an April 1972 x-ray shows no evidence of abnormalities, and the Veteran's September 1974 exit examination denied significant conditions other than pes planus (a foot disorder). However, an August 1972 entrance evaluation notes: "'Lame' only when sprained ankle." Ongoing STRs document frequent lower extremity complaints due to the circumstances of physical training, to include the use of "rigid boots" which required special inlays and multiple profiles to limit stress of the lower extremities. As per the Veteran's recollections, he was also placed on a permanent L2 profile in August 1973, again requiring specific footwear. The claims file also contains a September 2016 buddy statement reporting that the Veteran was very physically active prior to service, but could only participate in activities "that did not require jogging or running" thereafter. In reviewing the above, the preponderance of the evidence weighs in favor of finding an in-service injury or incurrence. The Veteran has offered competent and credible testimony to this effect, as support by additional lay testimony and STRs which document frequent lower extremity pain. Importantly, there is no probative evidence which tends to directly contradict his statements regarding in-service bilateral ankle pain. Accordingly, the second element of direct service connectionan in-service injury or incurrencehas also been met for both appeals. As to the third and final element, the claims file currently contains a May 2016 negative VA opinion, September 2019 positive private opinion, and October 2020 positive private opinion which the Board previously found to be inadequate. See March 2021 Board decision. Thus, these opinions do not merit further discussion herein. However, subsequent VA opinions were obtained in May 2021. Collectively, the examiner opined that the claimed conditions were at least as likely as not related to the Veteran's military service. By way of rationale, the examiner acknowledged the Veteran's reports of bilateral foot and ankle pain during basic training, during which he had to carry heavy equipment and remain on his feet for most of the day. The Veteran also served as a Vulcan gunner, during which he stood on hard surfaces "quite a bit," causing additional pain. Additionally, the Veteran had no issues relating to the claimed disabilities prior to service. Rather, he was noted to have pes planus on entry but was still allowed to enlist. The Veteran's combined in-service duties, coupled with the preexisting pes planus, led to ankle pain and the eventual diagnoses of bilateral degenerative arthritis. In support of her opinion, the examiner cited to two academic articles establishing such a link, and concluded that there was evidence of chronicity "and a nexus has been established." The above opinions are probative evidence in support of these appeals, as the examiner offered definitive conclusions with rationales that directly contemplated the Veteran's military and medical histories and their identifiable intersections. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). There is no indication that the examiner was not fully aware of the Veteran's past medical history or misstated any relevant fact in providing the above opinions. Moreover, she possesses the requisite expertise to render medical opinions regarding the etiology of the claimed disorders and had sufficient facts and data on which to base her conclusions. Compellingly, there are no opinions of record which contradict the examiner's findings; rather, the claims file also contains a March 2021 private treatment letter concluding that the Veteran's right ankle disability "was more likely than not, a condition caused by his military service." Briefly, the Board acknowledges that the right ankle opinion briefly cites to the left ankle diagnosis, as well. This minor error does not otherwise undermine the probative value of the opinion, as it is apparent that the opinion being offered is relevant to the right ankle diagnosis. Moreover, the rationales provided in support of both disabilities are fundamentally the same, such that the opinion and rationale remains intact despite the singular misstated diagnosis. Accordingly, a nexus is found between the Veteran's current bilateral ankle disabilities and his military service. The preponderance of the evidence is for the claims, the benefit-of-the-doubt rule is applicable, and the appeals are granted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.