Citation Nr: 21009081 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-24 062 DATE: February 18, 2021 ORDER Entitlement to service connection for right ankle pain is granted. REMANDED Entitlement to service connection for a left ankle disability is remanded. FINDING OF FACT The Veteran’s right ankle pain is proximately due to his service-connected right toe disability. CONCLUSION OF LAW The criteria for service connection for right ankle pain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1966 to June 1969. In January 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been reviewed. The Board previously remanded this matter in June 2019 and September 2020. 1. Entitlement to service connection for a right ankle disability The Veteran contends that a right ankle disability is proximately due to service-connected right toe fracture. He asserts that his right toe fracture has caused an altered gait, leading to his ankle disability. In an October 2008 written statement, the Veteran noted that he walks on the side of his foot. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Court of Appeals for Veterans Claims held that pain resulting in functional impairment could constitute a current disability, even if there is no diagnosis connecting the pain with a current underlying condition. Service treatment records reflect treatment for a compound toe fracture of the right foot. A May 2009 rating decision granted service connection for residuals of a right toe fracture. In July 2011 the Veteran had a VA examination of his right ankle. The examination noted plantar spur of the right foot. The Veteran reported a seven-year history of ankle pain. His complaints included intermittent ankle pain that was brought on by walking. The examination showed that weight bearing was affected. The examination noted that the Veteran had an antalgic gait. The examiner diagnosed bilateral ankle pain with no objective evidence of disease. The examiner opined that DJD of a toe is not an etiology for an ankle condition. The Veteran had a VA examination in November 2019. The examiner evaluated both ankles as normal. The examiner opined that the Veteran did not have a diagnosis of an ankle condition. The examination noted that there was no pain on examination of the ankle. There was no objective evidence of localized tenderness or pain on palpation. There was no objective evidence of crepitus. The examiner noted a normal ankle condition with no evidence of a chronic ankle condition. The Veteran had a VA examination in October 2020. The examiner opined that it is less likely than not that a bilateral ankle condition is proximately due to, or aggravated by, the service-connected right foot disability, to include functional impairment and DJD. The examiner opined that the Veteran’s gait was not altered in a way to offload either lower extremity. The examiner opined that most men in their eighth decade of life have degenerative changes in their weight-bearing joints, including the ankle. The examiner opined that, as the degenerative changes were not present on an x-ray in 2011, the mild to moderate DJD is due to natural aging. The examiner noted that the toe pain is felt up towards the ankle, as the Veteran explained. The examiner noted that there was a remote first toe fracture, healed well from an orthopedic standpoint. The Veteran’s feet were not deformed, and he did not have gait abnormalities. The examiner opined that the Veteran’s ankle disabilities were not aggravated beyond their natural progression. The examiner stated that the pain that the Veteran described was referred pain from the right toe and not joint pain in the right ankle. Because the evidence shows that the ankle pain is caused by the service-connected right toe disability, service connection is warranted. The examiner noted that the Veteran’s gait was slower but functional and non-antalgic. The examiner’s finding of referred pain from the right toe felt in the ankle establishes a relationship between his service-connected right toe disability and his right ankle pain. The opinion indicated that the right ankle osteoarthritis is age-related and was not caused or aggravated by the service-connected right toe disability. However, as the examiner found that the Veteran’s right ankle pain is referred pain from his service-connected right toe disability, the opinion supports a causal relationship between his right toe disability and his right ankle pain. Accordingly, service connection for right ankle pain is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left ankle disability is remanded. The Veteran contends that his left ankle disability is due to an antalgic gait due to his service-connected disability. The Board previously remanded the issue of service connection for the left ankle for an opinion as to whether an ankle disability is caused or aggravated by his service-connected right toe disability and residuals thereof, to include altered gait. In October 2020, the VA examiner noted that the Veteran did not have gait abnormalities. The examination noted that his gait appeared slightly slower, but functional and non-antalgic. A July 2011 VA examination noted that the Veteran gait was antalgic. As service connection has been granted for right ankle pain in this decision, an addendum opinion is necessary to determine whether the left ankle disability is caused or aggravated by the right ankle disability. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s left ankle disability. (a) The examiner must provide an opinion as to whether his left ankle disability (to include pain resulting in functional impairment of earning capacity) is proximately due to his service-connected right ankle pain. (b) The examiner must provide an opinion as to whether his left ankle disability (to include pain resulting in functional impairment of earning capacity) is aggravated (worsened) by his service-connected right ankle pain. The examiner should consider the July 2011 VA examination, which noted that the Veteran had an antalgic gait. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.