Citation Nr: 21068019 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 17-52 924 DATE: November 8, 2021 ORDER Service connection for right ankle degenerative arthritis is granted. Service connection for left ankle degenerative arthritis is granted. FINDINGS OF FACT 1. The Veteran's right ankle degenerative arthritis was not incurred in or caused by service. 2. The Veteran's left ankle degenerative arthritis was not incurred in or caused by service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for right ankle degenerative arthritis have been approximated. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303(b), (d), 3.307(a)(3), 3.309(a). 2. The criteria to establish service connection for left ankle degenerative arthritis have been approximated. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303(b), (d), 3.307(a)(3), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1976 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision of the Winston-Salem, North Carolina Regional Office (RO). In January 2021, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In March 2021, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran is in receipt of a total disability rating based on individual unemployability (TDIU) effective July 17, 2017. Service Connection Right and Left Ankle Degenerative Arthritis Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Degenerative arthritis, as arthritis, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, degenerative arthritis will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3). Continuity of symptomatology may be established by (1) a condition "noted" during service; (2) evidence of post service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). If the condition was one as to which a lay person's observation is competent, medical evidence of "noting" is not necessarily required. Id. The Veteran asserts that his in-service bilateral ankle pain and sprains are manifestations of his current bilateral ankle degenerative arthritis, or alternatively, that his bilateral ankle degenerative arthritis was caused by service. Early during his active service, in a July 1976 service physical profile record, the Veteran was assigned a temporary limited duty profile for bilateral achilles tendonitis and diagnosed with bilateral achilles tendonitis. An undated service treatment record (STR) reflects the Veteran's report of right ankle pain. A February 1977 service right ankle radiograph revealed soft tissue swelling and a small avulsion fragment at the medial malleolar tip appearing old and partially healed. The service medical examiner noted no evidence of an acute fracture or mortise abnormality. An April 1977 STR reflects the Veteran's report of left ankle pain from walking and the Veteran was diagnosed with torn left ankle ligaments. A May 1977 STR reflects the Veteran's report of left ankle pain and the Veteran was diagnosed with a left ankle sprain. A June 1977 STR reflects the Veteran's report of left ankle pain after playing basketball. A January 1978 service left ankle radiograph revealed soft tissue swelling from playing basketball and the Veteran was diagnosed with a left ankle sprain. A March 1978 STR reflects the Veteran's report of left ankle pain from running. The service medical examiner noted a January 1978 left ankle injury and a physical examination revealed soft tissue swelling but no fracture. The Veteran was assessed with left ankle pain due to an old injury. A March 1978 STR reflects the Veteran's report of right ankle pain from playing softball. A physical examination revealed minimal edema and the Veteran was diagnosed with a right ankle sprain. In his undated separation medical history report, the Veteran did not report ankle trouble. In his July 1979 service statement of medical condition, the Veteran reported no change in his medical condition since his last separation examination. The Veteran has multiple service-connected disabilities of his feet and a positive nexus opinion linking his present bilateral ankle disorder to service. (CONTINUED ON THE NEXT PAGE) In a September 2017 letter, a non-VA examiner noted the Veteran's in-service left ankle sprain in January 1978 and right ankle sprain in May 1978 and opined that "this is more likely than not the cause of his present ankle pain." Although a VA examiner found no connection between the Veteran's in-service ankle complaints and treatments, the Board presently finds an approximate balance of evidence both in favor and against the claim has been reached and will grant the claim. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.