Citation Nr: 21009214 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 15-12 496 DATE: February 19, 2021 ORDER Entitlement to service connection for a right ankle disorder, to include as secondary to a service-connected low back disability, is DENIED. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s current right ankle sprain and peroneal tendinopathy was incurred in or aggravated by service; additionally, the right ankle disorder is not proximately due to, or aggravated by, the service-connected low back disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a right ankle disability have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from September 1986 to April 1993. Entitlement to service connection for a right ankle disorder, to include as secondary to a service-connected low back disability, is denied. In September 2009, correspondence from the Veteran’s representative was associated with the claims file. Thereby, the Veteran initiated a claim for service connection for a right ankle disability. Service connection may be established for disability resulting from personal injury suffered or disease contracted while in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of the Veteran’s service as shown by the Veteran’s service record, the official history of each organization in which the Veteran served, the Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury, will be service-connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). (This standard of assessing aggravation of disability under 38 C.F.R. § 3.310 was established in 2006. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310)). Although VA indicated that the purpose of the regulation was merely to apply the Court’s 1995 ruling in Allen, it was made clear in the comments to the regulation that the 2006 changes were intended to place the burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection based on aggravation may be made. This had not been VA’s practice, which strongly suggests that the revision amounted to a substantive change in the regulation. Because the Veteran’s claim was received after the regulatory change, his claim will be adjudicated under the current version of the regulation. The 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). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). In August 1993, the Veteran underwent a General Medical VA examination. Therein, multiple conditions were listed as problems, to include hemorrhoids, shoulders, sinuses, and lower back. The VA examiner did not report a problem with the Veteran’s right ankle. Additionally, the VA examiner reported normal right ankle range of motion (ROM). In June 2010, the Veteran underwent a VA examination that addressed the nature of any currently endured right ankle disability. The VA examiner noted that, “(w)hile serving in Ft. Drum NY both ankles were sprained on different occasions. He was told they were sprained and should be treated symptomatically as there was no fracture or displacement.” The VA examiner noted that, “(f)oot exam suggests excess supination bilaterally and may explain multiple sprains . . ..” The VA examiner reported 15 degrees of right ankle dorsiflexion and 10 degrees of plantar flexion. The Board notes that normal range of motion for the ankle is dorsiflexion to 20 degrees and plantar flexion to 45 degrees, as set forth at 38 C.F.R. § 4.71, Plate II (2020). The VA examiner did not opine about the etiology of the range of motion (ROM) limitation in the Veteran’s right ankle. In September 2014, the Veteran’s service treatment records (STRs) were associated with the claims file. Therein, on June 29, 1990, the Veteran complained of right ankle pain. The military provider identified enough pain to prevent normal range of motion and normal weight bearing. The military provider reported that, “discomfort during ROM. PT states also problem with ROM on (right) ankle.” The military provider ruled out stress fractures and/or second-degree ankle sprains. During a July 1992 examination at Fort Drum, the military provider did not note an ongoing right ankle disability. In January 2015, a medical report that was generated by MetroSouth MRI (in October 2008) was associated with the claims file. Therein, a medical provider identified an “(a)rea of osseous contusion of the right calcaneal bone marrow in the region of the peroneal tubercle.” Within the reported clinical history, lateral right foot and ankle pain were noted. The provider also identified a complete tear of the right anterior talofibular ligament. In January 2015, the Veteran submitted a statement that addressed his right ankle disorder. Therein, the Veteran relayed that, “I have produced many documents from my military service record showing that road marches and carry an 80-poundpack on my back for 25 miles produced the left and right ankles to have tears and second degree sprains.” In December 2015, the Veteran supplied sworn testimony to the undersigned Veterans’ Law Judge (VLJ). The Veteran testified that he had two complete tears in his right ankle during a post-service postal career. The Veteran testified that, “(i)n the military, I had third degree ankle sprains.” The Veteran’s representative suggested that the Veteran’s service-connected back disability could have caused the current right ankle disorder. The Veteran testified that he did not seek treatment for his ankles until 2003. The Veteran testified that he endured a major right ankle sprain during work for the United States Post Office in 2008 or 2009. In July 2018, the Board addressed the Veteran’s claim for service connection for a right ankle disability. At that time, the Board remanded the Veteran’s claim to the agency of original jurisdiction (AOJ) for additional development. In March 2019, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured ankle conditions. The VA examiner relayed diagnoses for right ankle lateral collateral ligament sprain (chronic / recurrent) and tendonitis. The VA examiner reported the following medical history: “Veteran injured his ankles while in service during his normal PT duties. He states he has chronic instability and the ankles roll easily. He has had many sprains over the years. Right is worse than the left. He states can't go up stairs easily. No ankle surgeries.” The March 2019 VA examiner opined that right ankle condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The VA examiner also opined that the right ankle condition was less likely than not (less than 50% probability) proximately due to, or the result of, the Veteran’s service-connected low back disability. The VA examiner supplied the following rationale: “(t)he veteran is diagnosed with Right ankle sprain and bilateral ankle tendonitis. Veteran is SC for lumbar strain. The lower back (lumbar) supports body weight and allows trunk range of motion. The ankle is responsible for movement (plantar flexion, dorsiflexion, eversion and inversion) of the foot in relation to the lower leg during ambulation. The veteran’s right ankle conditions are related to injury which occurred after service as noted above in direct MO and therefore is not secondary to a back condition. In regard to the left ankle condition, the back and ankle do not share a functional relationship in which the back would be the cause of an ankle condition. Therefore, the veteran’s ankle conditions are less likely than not proximately due to the veteran’s service connected conditions.” In August 2020, the Board addressed the Veteran’s claim for service connection for a right ankle disability. At that time, the Board observed that the March 2019 VA examiner did not address and/or consider the reported reduction in right ankle ROM in June 1990. The Board found the March 2019 VA examination report inadequate, remanding the claim to the AOJ to secure an addendum opinion on the etiology of the Veteran’s current right ankle disorder. In August 2020, an addendum opinion was associated with the claims file. Therein, the VA examiner relayed that, “(t)he veteran is diagnosed with Right ankle sprain and peroneal tendinopathy. Entry exam 6/27/1986 was silent for pre-existing condition. Upon review of STRs, they mentioned visit and complaint of right ankle pain dated 6/29/1990 was reviewed as requested on 2507. The medic noted the left ankle as the main concern but documented ‘Also has problem with ROM on right ankle’. It noted the pain started after a March without trauma. PA (provider) note diagnosed the condition as ‘compression peroneus longus’ secondary to march/boots of the left ankle but makes no mention of a right foot diagnosis. There is no mention of ankle sprain or a mechanism of injury to suggest ligamentous injury in this note. I do not see any other complaint noting a right ankle injury/pain in the available STRs reviewed. MEB exam 7/10/92 makes no reference of an ongoing right ankle condition. General medical C+P exam 8/23/1993 mentions no ongoing right ankle issue/condition. Medical records submitted after separation notes right ankle sprain in 4/22/2004 and an MRI in 2008 shows a complete tear of the anterior talofibular ligament and peroneal tendon partial tear. This was over 10 years after separation and was non-service related on the basis of the injury in 2004. Based on this it would be difficult to associate the veteran’s current right ankle condition to his service related right ankle pain. Therefore, the veteran’s RIGHT ankle condition is less likely than not incurred in or caused by his service.” The Veteran is currently diagnosed with a right ankle sprain and peroneal tendinopathy. Consequently, the first requisite element(s) for direct and secondary service connection have been substantiated. See Hickson, 12 Vet. App. at 253; Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. The Board notes that, after a June 1990 road march, the Veteran was seen by military medical personnel for complaints of right ankle pain and a ROM problem. Consequently, the second requisite element for direct service connection has been substantiated. See Hickson, 12 Vet. App. at 253. However, the competent medical evidence in the claims file does not support a nexus between the current right ankle diagnosis and the in-service injury. Consequently, the Board finds that direct service connection is not warranted by the evidence of record. The Board notes that the Veteran has been service connected for a low back strain since September 2009. Consequently, the second requisite element for secondary service connection has been substantiated. See Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. However, the March 2019 VA examiner opined that a nexus did not exist between the Veteran’s service-connected low back disability and the current right ankle disorder, relaying that “the back and ankle do not share a functional relationship in which the back would be the cause of an ankle condition.” Consequently, the Board finds that the final requisite element for secondary service connection has not been substantiated. See id. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s claim for service connection for a right ankle disability. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim for service connection for a right ankle disability must be denied, because the preponderance of the evidence weighs against his claim. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.