Citation Nr: 21013758 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 08-17 635 DATE: March 10, 2021 ORDER Entitlement to service connection for bilateral ankle pain is granted. FINDING OF FACT The competent medical evidence is in relative equipoise as to whether current bilateral ankle pain is related to service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral ankle pain have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1975 to April 1986. This appeal is before the Board of Veterans’ Appeals (Board) from a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office. The appeal was remanded by the Board in February 2012. In January 2018, the Board denied the claim on appeal, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In December 2018, the Veteran, through his attorney, and the Secretary of Veterans Affairs submitted a Joint Motion for Partial Remand (Joint Motion). In January 2019, the Court granted the motion and remanded the appeal to the Board. The Board again remanded the appeal for further development in September 2019. Additionally, the January 2018 Board decision remanded for issuance of a Statement of the Case (SOC) the claims for an increased rating, and earlier effective date of service connection for entitlement to higher disability evaluations for traumatic arthritis of the right and left knees and for limitation of extension of the right and left knees, whether there is new and material evidence sufficient to reopen a claim of entitlement to service connection for depression, and entitlement to a total disability rating based upon individual unemployability (TDIU). A March 2020 decision granted TDIU and service connection for unspecified depression. An SOC regarding the remaining issues was issued in March 2020. The Veteran did not file a timely VA Form 9 (Substantive Appeal) in response to the SOC, therefore those issues are not before the Board The Veteran testified before the Board in October 2011. The claims file contains a transcript of the hearing. The Veterans Law Judge who conducted the hearing is unavailable to participate in a decision in this matter. In October 2017, VA notified the Veteran of his right to have another Board hearing. The Veteran has not opted for an additional hearing, so the Board may proceed to the merits without another hearing. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the Veteran must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Bilateral ankle disability The Veteran asserts that his bilateral ankle pain began in service due to multiple parachuting jumps and has continued since then. The Veteran’s service records show the award of a parachutist badge. The Veteran stated he continued to have intermittent pain in his ankles during service but was trained to ignore the pain. The January 2013 VA examination showed evidence of pain on movement and limitation of motion of the ankles. The examiner determined there was no and had never been an ankle condition. The examiner noted the Veteran’s complaints of swelling when sitting and becoming stiff and painful but found no diagnosis. The examiner measured range of motion as limited to 40 degrees of plantar flexion and 15 degrees of dorsiflexion (bilaterally) after repetitive-use testing with the limitation due to pain. The examiner listed the functional impairments as including less movement than normal, pain on movement, and disturbance of locomotion. He also noted pain on palpation of the ankles bilaterally. After reviewing the file, a January 2020 VA examiner stated the Veteran’s current bilateral ankle symptoms are less likely than not related to the achilles tendonitis during his time in service. The ankle examination completed in January 3013, as well as the rheumatology evaluation in 2015, noted diffuse bilateral ankle pain and tenderness to palpation, with no localized pain to the achilles tendon and no current or recent diagnosis of achilles tendonitis. The rheumatology consult documents polyarthralgia, with pain from gouty flares, affecting the bilateral ankles, knees, and wrists. Therefore, the Veteran’s current and ongoing bilateral ankle symptoms and related decreased weightbearing tolerance are unrelated to the achilles tendonitis during his time in service. The Veteran’s diagnosis of gout is in no way related to or aggravated by his remote diagnosis of achilles tendonitis. Dr. P.C. submitted a letter regarding the Veteran’s bilateral ankle disability in January 2021. Dr. P.C. reviewed the Veteran’s medical records, layperson statements, and medical opinions of record. Dr. P.C. stated there is overwhelming evidence of advanced degenerative joint disease (DJD) throughout the Veteran’s axial skeleton and extremities. He opined that the Veteran’s bilateral ankle pain is due to post-traumatic DJD as the direct result of his in-service lower extremity injuries suffered as a paratrooper. He reasoned that the Veteran’s 1976 service treatment records show ankle pain, and the Veteran’s timeline of chronic ankle pain is consistent with the natural history of post-traumatic DJD. Although the Veteran has a history of gout as well, his documented examination findings and laboratory analysis is most consistent with the diagnosis of DJD. He explained that although the Veteran had a history of gout diagnosed after classic symptoms in the great toe were observed, at no point was there evidence of significant erythema or inflammation consistent with gout described in his ankles. Laboratory testing also demonstrated on a number of occasions that his uric acid levels were normal, making the diagnosis of gouty arthritis of the ankle even more circumspect. Furthermore, the chronic nature of his ankle pain symptoms as well as polyarticular complaints are much more consistent with the diagnosis of osteoarthritis and DJD than gout. While the January 2013 VA examination did not establish a current clinical diagnosis of a bilateral ankle disability, the findings show that the Veteran’s ankles have functional impairment, including reduced range of motion, pain on movement, and disturbance of locomotion. The evidence of record demonstrates that the Veteran activity is limited by bilateral ankle pain. Pain can be considered a disability where it causes functional impairment, even in the absence of an underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, there is evidence of a current disability. As to an in-service event, injury or disease, the Veteran’s service treatment records reveal improving right ankle pain in 1976, such that he requested to be relieved of duty. Accordingly, there is evidence of an in-service injury and the issue remaining for consideration as to direct service connection is whether the Veteran’s current bilateral ankle disability is etiologically related to service. With respect to a nexus between the bilateral ankle disability and service, the Board notes that the record contains conflicting medical opinions. The United States Court of Appeals for Veterans Claims has stated that the probative value of medical opinion is based on the expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Against a finding of a nexus is the January 2020 VA medical opinion. Since the January 2020 did not address the Veteran’s lay testimony regarding in-service trauma to his bilateral ankles as a parachutist the Board affords relatively little probative weight to January 2020 VA opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In favor of a finding of a nexus is Dr. P.C. Although there is no indication that Dr. P.C. conducted an in-person examination, he provided extensive notations of the Veteran’s medical history as found in the claims file. In addition, Dr. P.C.’s opinion contains a thorough rationale explaining the effects of the Veteran’s confirmed in-service parachuting on his current bilateral ankle pain, as well as explaining why the Veteran’s current bilateral ankle pain is not consistent with gout. For these reasons the Board affords significant probative weight to Dr. P.C.’s opinion stating that the Veteran’s current bilateral ankle pain is related to his service. See Nieves-Rodriguez, 22 Vet. App. at 295. As the Veteran’s bilateral ankle pain has been established as a disability for VA purposes, and considering Dr. P.C.’s positive opinion regarding a nexus to the Veteran’s service, service connection for a bilateral ankle disability is warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, 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.