Citation Nr: 21074681 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-25 428 DATE: December 16, 2021 ORDER Entitlement to service connection for a right ankle disability is granted. INTRODUCTION The Veteran had active service from August 1978 to December 1987, and in September 1991. In December 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. When this case was previously before the Board in January 2021, the above-noted issue was remanded for additional development. The case has since been returned for further appellate review. FINDING OF FACT Chronic right ankle manifestations have been present since service. CONCLUSION OF LAW A right ankle disability was incurred in active service. 38 U.S.C. § 1110, 1111; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran contends service connection is warranted for a right ankle disability because it originated while he was serving on active duty. A review of the Veteran's outpatient treatment records from the Dayton VAMC show he was diagnosed with moderate tendinosis, which the examiner found was a sequela of remote lateral ankle sprains. At the time of his November 1987 separation examination the Veteran reported experiencing foot trouble. He has also provided a statement from a fellow service member, who recalled the Veteran experiencing a significant fall in service with a resulting limp thereafter. The issue that must be resolved in this case is whether the Veteran's current right ankle disability is consequentially related to his fall in service. In April 2021 the Veteran underwent a VA examination at which time he was again diagnosed with tendinosis and status-post inframalleolar peroneus brevis tendon tear. The examiner also found the Veteran's painful motion was attributed to his diagnosed right ankle disability. Nonetheless, the examiner then concluded the Veteran's current disability was less likely than not related to his military service. In support of this conclusion, the examiner indicated there was no documentation of a right ankle injury in service. The examiner did not address the Veteran's reports of a fall injury in service. Examiners simply are not free to ignore a Veteran's statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Notwithstanding the above-noted VA medical opinion, the Board observes that during his December 2020 Board hearing, the Veteran reported that after his fall he began to experience pain. He also reported his right ankle pain has been ongoing since that time. As noted above, his reports have been corroborated by a fellow service member. Further, in a May 2021 statement, the Veteran's treating physician of nearly ten years found his current right ankle disability to be "highly likely" the direct result of his traumatic fall in service. In this regard, the examiner explained the Veteran's current disability is consistent with an impact type injury from a fall. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). In this case, the Veteran has reported that he experienced right ankle pain following his fall in service, which persisted ever since. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran's own reports of experiencing ongoing ankle pain to be at least as probative as the above-noted VA examiner's findings, as the Veteran is truly the only person capable of such observation. Additionally, the Veteran's Board-Certified Primary Care Physician has found the Veteran's current disability to be likely caused by his fall in service. Accordingly, a nexus to service is established. In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran's current right ankle disability and his in-service fall is at least in equipoise with the evidence against a nexus. Therefore, the Veteran is entitled to service connection for his right ankle disability. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.