Citation Nr: 21073663 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 15-14 780 DATE: December 9, 2021 ORDER Entitlement to service connection for a right ankle disability is granted. Entitlement to service connection for a right hip disability is granted. FINDINGS OF FACT 1. The Veteran's pre-existing right ankle disability was permanently aggravated beyond its natural progression due to further injury during active service. 2. The evidence demonstrates that the Veteran's right hip disability is proximately due to or as a result of her service-connected strain of the right buttocks/gluteus medius disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have been met. 38 U.S.C. §§ 1131, 1153, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303. 3.306 (2021). 2. The criteria for service connection for a right hip disability have been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from May 2003 to March 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in March 2020. Along with the present claims, the issue of service connection for a right shoulder disorder was remanded for further development. A July 2021 rating decision granted service connection for the Veteran's right shoulder disability. Accordingly, as to that claim, there is no longer a case in controversy before the Board. The remaining matters have been returned to the Board for further appellate action. Service Connection Right Ankle Disability The Veteran argues that her right ankle disability, diagnosed as a chronic/recurrent lateral ligament sprain, is related to her active service. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's right ankle disability preexisted her active service from May 2003 to March 2011. The Veteran's enlistment examination reflects a report of a prior ankle surgery from March 1993, confirmed through physical examination and review of pertinent records. See December 2002, Enlistment Examination. Accordingly, the presumption of soundness does not attach in this case as to the Veteran's right ankle disability. However, it was further acknowledged that the Veteran's symptomatology related to the 1993 surgery, which included excision of bone spurs and tendon resection, had fully subsided. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). Turning to the additional evidence of record, the Veteran's early service treatment records (STRs) demonstrate that she sustained a right ankle injury in June 2003, and began to experience ongoing symptoms of pain ever since. See June 2003, January 2010, January 2011, STRs. As the evidence of record shows that there was an increase in the severity of the Veteran's right ankle disability during service, the presumption of aggravation attaches. Again, in order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. 38 C.F.R. § 3.306. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The Board has considered that evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). With this in mind, the Board notes that the Veteran's separation examination does not reflect any evidence of aggravation of the right ankle disability. Nevertheless, this is not dispositive of the issue. The Board has considered the negative evidence of record, including the reporting of a post-active-service ankle injury in October 2012. See July 2021, VA Examination Report. However, the injury described therein does not nullify the injury incurred in service, which was proven to show additional symptoms during service and thereafter. But for the injury in service, the symptoms related to the pre-existing disability were medically shown to have resolved. The Board has also considered the July 2021 VA examiner's opinion that the Veteran's disability was not aggravated beyond its natural progression. However, the examiner placed much emphasis on the lack of reporting in the separation examination of any additional right ankle injury or pain. Furthermore, the examiner addressed a November 2012 MRI which did not show any significant abnormalities beyond that expected from the 1993 surgical procedure. This evaluation, however, does not take into consideration the Veteran's subjective, yet documented, reports of pain during service. In this case, there is not clear and unmistakable evidence that there was no increase in severity or that the increase in severity was due to the natural progression of the disease. Therefore, the presumption of aggravation has not been rebutted and service connection based upon aggravation of a pre-existing disability is granted. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Service Connection Right Hip Disability The Veteran maintains that she has a right hip disability which is related to her active service. Indeed, the Veteran has been diagnosed with residual right hip pain, status post-arthroscopic osteoplasty and labral excision and reconstruction. STRs confirm that the Veteran reported and was treated for a right hip condition during active service. See November 2009, STR (showing physical therapy treatment for her right hip and gluteus maximus muscle strain). In August 2019, the Veteran was granted service-connection for strain of the right buttocks/gluteus medius, with pyriformis syndrome of the right hip. See August 2019, Rating Decision. The Veteran was assigned a 20 percent rating for the disability based upon the gluteus maximus injury, evaluated as "moderate." Id. However, most recently in a July 2021 VA examination, it was identified that the right hip presents with a separate and distinct disability from that previously described. Moreover, the examiner unequivocally provided the opinion that the right hip disability began during active service and is directly related to the service-connected strain of the right buttocks/gluteus medius. See July 2021, VA Examination Report. In addition to the above findings in favor of the claim, the record also contains private treatment records which provide favorable opinions in relation to the claim. A May 2013 letter from a rehab and chiropractic center relates that the right hip disability has remained chronic ever since injuries during active service from 2006 and 2009. The Board notes that this opinion does not provide a thorough rationale; however, it is corroborated by STRs which reflect that the opinion is based upon an accurate recitation of the Veteran's medical history. A June 2021 letter from the Veteran's treating physical therapist provides a thorough rationale and medical explanation for the etiology of the right hip disability as related to the Veteran's active service. Discussing the intricate involvement of the gluteus muscles and hip abductors and the over-compensation of the hip abductors in response for injuries sustained to the gluteus maximus, the medical professional described that pelvic instability and soft tissue damage from the gluteus injury more likely than not resulted in injury from over-use of the hip abductors. Accordingly, the Board finds that the evidence of record establishes that the Veteran's right hip disability is proximately due to, or as a result of, her service connected strain of the right buttocks/gluteus medius. Therefore, service connection is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Continued on the next page. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.