Citation Nr: 21070097 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-66 488 DATE: November 23, 2021 REMANDED Entitlement to service connection for left ankle condition is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Coast Guard from June 1977 to June 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal of an August 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In April 2021, the Veteran presented testimony in a hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. 1. Entitlement to service connection for left ankle condition is remanded. The RO denied the claim, finding the Veteran's left ankle condition was not caused by and did not occur during service. The RO noted a right ankle injury during service but found the service treatment record was silent to left ankle injury and no continuity of symptomology was shown. However, the Veteran testified he injured his left ankle walking down an unlit spiral staircase while serving at Governors Island. He contends that, while his service treatment records show an injury to the right ankle, both ankles were injured in the fall with the left worse than right. He testified the medic was unsure whether the left ankle was broken but placed it in a cast for six weeks as a precaution and assigned light duty. The Veteran contends he has since experienced weakness such that he must wear work boots for ankle support and to prevent the left ankle from giving out. He reports use of over-the-counter medication for pain and rheumatology treatment arthritis resulting from the injury. The Veteran is competent to report what happened to him, and while the service treatment records note the right ankle, it is feasible that such a fall would in fact injure both ankles. The lack of documented treatment in service cannot serve as the sole reason for finding testimony not credible. The Board finds that there is sufficient evidence to find the Veteran did experience a left ankle injury in service. The Veteran has not been provided a VA examination in relation to his claim and finds the record lacks sufficient evidence to adjudicate the issue. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in-service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA treatment records from 2008 to 2021 show continuous complaints of pain and podiatry consultation and treatment of the left ankle. Records show the Veteran experiences instability, numbness, restricted movement, and pain. He was diagnosed with bilateral post-traumatic degenerative joint disease of both ankles, with left worse than right. CAPRI, 8/13/16, pg. 41/117. Therefore, there is competent evidence of a current disability and the first element required for VA examination has been met. The Veteran's service treatment record confirms he sought treatment following an injury in April 1980. Treatment received on April 2, 1980 shows the Veteran complained of pain in the right ankle after an injury the previous night. He reported swelling overnight and radiating pain up the right calf. The clinician noted he favored his right leg and walked with a limp at examination. Diagnostic imaging was requested, and he prescribed a boot and crutches. STR, 2/28/2014, pg. 34/100. Entry notes at follow up indicate right ankle edema and pain with palpitation and inversion. The provided diagnosis was ankle sprain, and the Veteran was referred to physical therapy. Id. pg. 33/100. As such, the evidence confirms the Veteran's testimony of a fall and establishes the existence of an in-service injury. The Veteran's representative asserts post-service treatment records corroborate the Veteran's assertion his in-service injury was to the left ankle, rather than a unilateral injury to the right. Diagnostic imaging taken in April 2016 shows spurs, fragments, and densities of the left ankle, with a note indicating "heterotopic ossification or the sequela of prior trauma." CAPRI, 4/27/2016, pgs. 27-29/169. Deformity of the foot is noted as early as 2009 and a 30-year history of left ankle pain stemming from a service injury is indicated throughout VA treatment records. While the Veteran's service records indicate a right ankle injury, the Board finds the Veteran's testimony credible that his left ankle was also injured as the medical evidence supports a prior traumatic injury to the left ankle. As such, the third element is satisfied. However, no medical opinion has been provided addressing the significance of the above evidence. As each element has been satisfied, the Board remands the issue for an examination to determine whether the Veteran's left ankle condition is related to the in-service injury noted in service records. 38 U.S.C. § 5103A (d)(2)(C); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Accordingly, the matters are REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination with the appropriate clinician to assess the nature and etiology of the Veteran's left ankle condition. Any necessary diagnostic testing should be performed. Following review of the claims file, the examiner is asked to provide an opinion on the following: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ankle condition was incurred or otherwise related to his military service, to include the in-service fall injury. The examiner is asked to provide the underlying reasons for all opinions expressed and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. The examiner is also reminded that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination. Attention is invited to the Veteran's testimony that he hurt both ankles in service, and the diagnostic imaging taken in April 2016 that shows spurs, fragments, and densities of the left ankle, with a note indicating "heterotopic ossification or the sequela of prior trauma." CAPRI, 4/27/2016, pgs. 27-29/169. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tabitha Chapman, 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.