Citation Nr: 21073292 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 15-01 127 DATE: December 8, 2021 ORDER Entitlement to service connection for left ankle disability is granted. Entitlement to service connection for right ankle disability is granted. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's current left ankle disability was incurred in or is otherwise causally related to his active service. 2. The evidence is in relative equipoise as to whether the Veteran's current right ankle disability was incurred in or is otherwise causally related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ankle disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a right ankle disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to February 1971, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded the matter in May 2021. A Supplemental Statement of the Case (SSOC) was issued in August 2021. The Board notes that a claim of entitlement to service connection for a skin condition was also remanded in the May 2021 remand. In an August 2021 rating decision, the RO granted service connection for dermatitis (claimed as porphyria cutanea tarda) with a noncompensable evaluation, effective August 20, 2012, and a 30 percent evaluation, effective July 8, 2021. As this decision represents a full grant of the benefits sought on appeal, this matter is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. "To establish a right to compensation for a present disability, a Veteran must show: '(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'the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran is presumed to have been in sound condition when entering service, except as to defects, infirmities, or disorders noted at the time of the examination or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. In order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence that (1) a veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness by demonstrating with clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Wagner, 370 F.3d at 1096; see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). 1. Entitlement to service connection for left ankle disability. 2. Entitlement to service connection for right ankle disability. For the reasons that follow, the Board finds that entitlement to service connection is warranted for left and right ankle disabilities. The Veteran reports left and right ankle pain since jumping from trucks in the military. VA treatment records reflect the Veteran was treated for left ankle swelling, chronic right ankle pain suspect arthritis, possible osteochondral defect on the dome of the talus, and osteoarthritis. June 2021 imaging studies from Putnam Radiology Group revealed osteochondritis dissecans in each talar dome. While the Veteran reported foot pain and flat feet prior to active service, including during the January 2020 VA ankle examination, and also reported cramps in the legs and foot trouble on his May 1969 Report of Medical History, his lower extremities and feet were examined and found to be normal during his May 1969 entrance examination. As such, he is entitled to the presumption of soundness. Crowe v. Brown, 7 Vet. App. 238 (1994). In cases such as this, where the presumption of soundness has initially attached, the burden shifts to the Secretary to show by clear and unmistakable evidence that: "(1) a disease or injury existed prior to service; and (2) the disease or injury was not aggravated by service." Patrick v. Shinseki, 668 F.3d 1325 (Fed. Cir. 2011) (citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (emphasis added). The second prong of the presumption of soundness is rebutted if there is clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Wagner, 370 F.3d at 1096; see also Quirin v. Shinseki, 22 Vet. App. at 397. The matter was previously remanded in November 2020 in order to obtain an opinion as to whether left or right ankle disabilities preexisted active service and, if so, whether such were aggravated by service. As noted in May 2021 by the Board, the January 2021 VA medical opinion is internally inconsistent as to the question of whether a disability clearly and unmistakably preexisted service, and such also contained other inadequacies. There is no other competent opinion of record that left or right ankle disabilities clearly and unmistakably preexisted the Veteran's active service. In this case, the Board finds that the legal presumption of soundness has not been rebutted. Additionally, as previously noted by the Board in May 2021, the January 2020 VA medical opinion and addendum is entitled to minimal probative weight as such impermissibly was based upon a lack of "chronicity of care." See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In July 2021, the contracted examiner opined that that the current left and right ankle disabilities were less likely than not (less than 50 percent probability) incurred in or caused by the claimed injury, event, or illness in service. The examiner explained that the bilateral ankle conditions were not documented while the Veteran was in service. Therefore, it is less likely than not that bilateral ankle conditions are related to service. In another section, the examiner indicated that the Veteran's reports of ankle pain since jumping from trucks "is plausible and definitely could have led to the wear and tear on both ankles..." The examiner provided a negative etiological opinion by impermissibly relying on the absence of evidence in formulating the negative opinion. In addition, the examiner did not provide a complete rationale in support of the negative opinion, and the acknowledgement of the plausibility of the Veteran's reports regarding continuity of symptomatology appears inconsistent with the negative conclusion reached. Essentially, the July 2021 examiner determined that the Veteran's reports of continuity of symptomatology were consistent with the evidence of record and with medical knowledge. Although the language that jumping from trucks in service "definitely could have led to the wear and tear on both ankles" is somewhat speculative in nature, reducing its probative value, see e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Goss v. Brown, 9 Vet. App. 109, 114 (1996); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), the Board finds that such is still entitled to at least equal probative weight as the negative medical opinions of record, particularly when coupled with the Veteran's competent and credible reports of continuity of symptomatology regarding the bilateral ankles. (Continued on the next page) As set forth above, under the benefit-of-the-doubt rule, for the Veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award entitlement to service connection for left and right ankle disabilities. R. Behlen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.