Citation Nr: 21011219 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-62 149 DATE: March 1, 2021 ORDER Service connection for a left ankle disorder is granted. REMANDED A rating in excess of 20 percent for degenerative disc disease, lumbar spine. A rating in excess of 10 percent for right lower extremity radiculopathy. Entitlement to a total disability rating due to individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran had active duty from February 1975 to May 2002. 2. A left ankle injury was incurred in service; the current left ankle disorder has been related to in-service injuries. CONCLUSION OF LAW A left ankle disorder was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Turning to the evidence, the Veteran has claimed that he has a left ankle disorder caused either by active service or due to service-connected disabilities. As to a current disorder, although a June 2016 VA examiner found that the Veteran had no objective evidence of bilateral ankle abnormalities, he has been treated by VA physicians for peroneal brevis tendinitis, first diagnosed during a June 2017 VA podiatry consultation. As such, the first element of service connection is met. As to an in-service incurrence, the service treatment records (STRs) show treatment for left ankle injuries. Specifically, he was treated for a left ankle contusion/tendonitis in October/November 1978, badly twisted the left ankle and fractured the left 5th metatarsal in May 1990, and was treated for a left foot sprain in October 1995, the pain from which started when he was trying to bend his ankle. Multiple periodic medical examinations, to include his retirement examination, do not reflect a left ankle disorder; however, as various left ankle injuries were noted in service, the second element is met. As to a medical nexus, the evidence is in conflict. On one hand, the June 2016 VA examiner found that it was less likely than not that the Veteran had a left ankle disorder caused by service, specifically to his in-service fracture of his left little toe. The examiner found no evidence of chronic left ankle conditions in the STRs, no complaints of left ankle abnormalities, and no ankle injuries shown on the 2002 separation physical. This evidence weighs against the appeal. In contrast, the Veteran’s treating VA podiatrist found it was as likely as not that a left ankle disorder, specifically diagnosed as peroneal brevis tendinitis and ligament laxity, was caused by service. The podiatrist reasoned this was due to the Veteran’s ankle and foot injuries in service, as well as contributing factors of extensive shipboard activities, climbing vertical steel ladders in and out of oil tanks, and jogging. This evidence weighs in support of the appeal. Based on the above, the evidence is at least in equipoise. Giving the Veteran the benefit of the doubt, the appeal is granted and service connection on a direct basis is warranted. As service connection is granted on a direct basis, all other theories of entitlement are rendered moot. REASONS FOR REMAND Additional development is necessary to decide the remaining issues on appeal. As to the back/right lower radiculopathy, during a September 2020 hearing before the Board, the Veteran claimed he had flareups of his low back disability, including 10/10 pain but was not asked about it at the June 2016 examination, although the report reflects that he denied flareups. He testified as to having flareups where he would lose feeling to his leg and it would give out. This suggests a worsening of symptoms and an updated examination is needed to assess the current status of his low back/right lower radiculopathy disability. As to a TDIU, the Veteran testified that he was not working due, in part, to the service-connected lumbar spine disability. The evidence reflects that he pursued a higher degree so he could switch careers due, in part, to a lumbar spine disability. As such, the issue of TDIU has been reasonably raised by the record. As TDIU is inextricably intertwined with the rating of now-granted left ankle disability, after rating the left ankle disorder, and conducting the development described above and any necessary to determine the impact of his service-connected disabilities on employability, the RO should adjudicate whether a TDIU is warranted. The matters are REMANDED for the following actions: 1. Obtain any outstanding treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination to determine the severity of his service-connected lumbar spine disability and right lower extremity radiculopathy. The examiner should determine any functional impairment caused by flareups of the service-connected disabilities. If the examiner is unable to estimate the impairment caused by flareups, they must explain that inability. 3. Take any development determined necessary to adjudicate the claim of entitlement to a TDIU. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brendan A. Evans, 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.