Citation Nr: 21011746 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-10 637 DATE: March 2, 2021 ORDER Service connection for right ankle strain is granted. Service connection for left ankle strain is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his right and left ankle strains are at least as likely as not related to in-service injuries. CONCLUSIONS OF LAW 1. The criteria for service connection for right ankle strain are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left ankle strain are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1985 to November 1985 and fromDecember 2003 to March 2005 with additional National Guard service, including periods of active duty. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision. In August 2019, the Board remanded these issues for further development, and the case has been returned for appellate consideration. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran seeks service connection for right and left ankle disabilities, contending that they are the continuing result of repetitious injuries sustained during active duty caused by rolling his ankles when walking on large-sized gravel. He also contends, alternatively, that the disabilities are secondary to his service-connected mechanical back strain with degenerative disc disease. Resolving reasonable doubt in favor of the Veteran, the Board concludes that the Veteran has a current disability that is directly related to active duty service. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). During an October 2020 VA examination, the Veteran was found to have right and left ankle strains, and, accordingly, the first Shedden element is met. The Veteran has reported that during deployment he repetitively rolled his ankles when walking on large-sized gravel covering a parking lot he needed to cross frequently, which caused bruising and persistent weakness in his ankles. He has reported that ever since returning from deployment he has avoided rocky or uneven surfaces due to the instability of his ankles and that he has used bilateral ankle braces and worn boots for support. See July 2013 Statement in Support of Claim; November 2014 & October 2020 VA examination reports. In a May 2018 letter, Mr. J.M. stated that he was deployed with the Veteran and that half-way through their tour of duty river rock was added to their parking lot, which was between their living quarters and workshops. He stated that he “repeatedly observed [the Veteran] stumble and fall down while walking across the parking lot.” He stated that he observed “the bruising that would cover the entire outside of one foot or the other.” The Veteran’s service treatment records show that on his February 2005 post-deployment health assessment he denied swollen, stiff, or painful joints. In November 2005, documentation from a private physician shows that the Veteran was undergoing evaluation for a foot and ankle problem such that he could not run, walk a treadmill, or lift over 20 pounds until assessment was completed. Records show that the Veteran reported problems specifically of his left foot and ankle of two years’ duration such that he often walked flat-foot as not to bend the ankle. In December 2005, he was placed on temporary profile for “foot and ankle problems.” A December 2005 letter from an evaluating neurologist shows that the Veteran reported specifically recurrent left ankle numbness and weakness after running for approximately one mile. A February 2006 MRI appears to have been ordered based upon bilateral foot numbness. In an October 2006 letter, the Veteran’s family physician stated that, due to pressure on the S1 nerve root causing tingling in the Veteran’s left foot during running of several years’ duration, it was recommended that he not participate in running during physical evaluation. After numerous temporary profiles, the Veteran was placed on permanent profile due to herniated L5-S1 with chronic radiculopathy. The Veteran and his fellow service members are competent to report witnessed events and matters of their personal knowledge, including observable symptomatology. See 38 C.F.R. § 3.159(a)(2) (defining competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation). Furthermore, “[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Here, the Board finds that the lay evidence is competent and credible to identify the in-service occurrence of simple conditions of strained ankles because the individuals witnessed the occurrence of the injuries as well as the resulting bruising afterward, and the medical evidence supports their reports. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (explaining that lay evidence is credible when it is internally consistent and consistent with other evidence of record). That being the case, the second Shedden element is met. Mr. J.M. stated that he and the Veteran were hunting buddies both before and after deployment. He stated that after deployment, due to his ankles, the Veteran was no longer able to spend all day walking the fields as he had done before. He stated that the Veteran frequently stumbled, going to a knee to catch himself or falling down. In a May 2018 letter, Mr. S.S. stated that he also had been a hunting buddy with the Veteran before their unit was deployed. He stated that the Veteran had never had any problems climbing up and down river banks or climbing down into valleys in search of game. He stated that since their return from deployment the Veteran no longer walked long distances when hunting due to his ankles, and Mr. S.S. stated that on several occasions he had seen the Veteran stumble and nearly fall while hunting. He recounted one episode when the Veteran was unable to drag out a deer that had been killed due to ankle pain. After a November 2014 VA examination, in the context of Gulf War Illness, the examiner stated that the Veteran’s right and left ankle conditions were a diagnosable chronic illness with an explained etiology. It was explained that his bilateral ankle conditions were due to “body mechanics, wear and tear, overuse and repeated ambulation injuries as well as bone/joint problems.” During the October 2020 VA examination, the examiner indicated that bilateral ankle instability was suspected. The examiner opined that the Veteran’s right and left ankle strains were less likely than not incurred in or caused by the claimed in-service event or injury. It was explained: “While there are lay statements referenced that stated difficulty walking, the medical records report the Veteran denying joint pain in the post deployment health assessments from 1/6/07 and 9/19/08.” It was also opined that it was less likely than not that the Veteran’s right and left ankle strains were proximately due to or aggravated by his service-connected back disability. As to both proximate cause and aggravation, it was explained that “[e]xamination of the back did not show any biomechanical factors that would have any effect on the ankles to cause or aggravate an ankle condition. Back conditions in of themselves do not cause ankle conditions.” As factfinder, the Board has the responsibility to determine the credibility and weight to be given to the evidence. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). Here, the Board finds that the October 2020 VA examiner’s medical opinions lack probative value for several reasons. First, the examiner failed to consider the lay evidence in its entirety, namely the witnessed in-service falls and resulting bruising on the Veteran’s ankles. Second, the examiner failed to address the October 2006 letter from the Veteran’s family physician contained in his service treatment records stating that some of the Veteran’s left ankle symptomatology was the result of S1 nerve root compression or that the Veteran was placed on profiles for this. Third, the evaluation of the Veteran’s ankle disabilities began in November 2005, within a year after his return from deployment. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate or incomplete factual premise is not probative). Furthermore, the conclusory opinions are devoid of any rationale other than to say that the Veteran denied joint pain on post-deployment health assessments and, incorrectly, that back conditions do not cause ankle conditions. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (stating that to be adequate the examination report must “sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion.”); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that an opinion must contain clear conclusions with supporting data, and a reasoned explanation connecting the two). Although it was directed toward a different question, the Board finds the November 2014 VA examiner’s medical opinion highly probative as it explains that the Veteran’s right and left ankle strains are the result of “repeated ambulation injuries” as well as related musculoskeletal issues. This opinion is consistent with the Veteran’s contention and the lay evidence of witnessed repeated in-service injuries to the right and left ankles and chronic limitations due to the Veteran’s right and left ankle instability. To grant service connection in this case, the Board need not delve into whether these in-service ambulation injuries were caused by or aggravated by his service-connected back disability. Based upon the foregoing, the Board concludes after resolving reasonable doubt in favor of the Veteran that the probative evidence, both lay and medical, establishes that it is at least as likely as not that the Veteran’s right and left ankle strains are related to his in-service bilateral ankle injuries during active duty service. Accordingly, the third Shedden element is met, and service connection for right and left ankle strains is warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, 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.