Citation Nr: 21014791 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-28 372 DATE: March 15, 2021 ORDER Service connection for a left ankle disability is granted. Service connection for a right ankle disability is granted. REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU), prior to August 14, 2018, is remanded. Entitlement to basic eligibility to Dependents’ Educational Assistance (DEA), prior to August 14, 2018, is remanded. FINDINGS OF FACT 1. The Veteran’s left ankle disability began during active service. 2. The Veteran’s right ankle disability began during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right ankle disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 2006 to May 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in San Diego, California. This matter was previously before the Board in March 2019 at which time it was remanded for additional development. It is now returned to the Board. The issues on appeal, in pertinent part, had previously included entitlement to service connection for a right hip disability, left and right knee disabilities, and a low back disability. During the pendency of this appeal, by rating action dated in November 2020, service connection for each respective disability was granted. As this represents a complete grant of each benefit sought on appeal, the issues are no longer before the Board. Service Connection 1. Entitlement to service connection for a left ankle disorder. 2. Entitlement to service connection for a right ankle disorder. The Veteran asserts that she has current left and right ankle disabilities that were first manifested during her period of active service. She has indicated that her symptoms have been ongoing ever since active service. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to prevail on the issue of service connection for a disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection for certain chronic diseases, such as arthritis, may also be established based upon a legal "presumption" by showing that it manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A review of the Veteran’s service treatment records reveals that the Veteran had a history of repeated left and right ankle sprains during her period of active service. In July 2006, she was treated for a left ankle sprain. The ankle was positive for edema, ecchymosis, and point tenderness to the lateral malleolus. X-rays were unremarkable. In August 2006, she was treated for left and right ankle sprains. She was diagnosed with overuse syndrome and allowed to wear ankle support she had received from home. In October 2006, she was diagnosed with right ankle tendonitis. In January 2007, she reported ongoing left ankle pain. A six-month history of several sprains was noted. Some joint instability and swelling after running were also noted. In December 2007, a history of left ankle sprain on multiple occasions was indicated. Later in December 2007, she was treated for a right ankle sprain. In January 2008, she was treated for reported moderate right ankle pain. In a July 2008 treatment record for reported knee symptoms, evaluation of both ankles showed abnormalities, to include instability and laxity. In December 2008, a history of knee symptoms since boot camp in 2006 was noted. In March 2009, she was treated after having rolled her right ankle and was diagnosed with ankle sprain anterior talofibular ligament. In March 2010, a history of ankle sprain in boot camp was noted. Following service, Tricare treatment records from Naval Hospital Camp Pendleton show ongoing intermittent treatment for left and right ankle symptoms. A VA examination report dated in November 2011 shows that the examiner indicated that he could not verify any of the diagnoses because the Veteran was pregnant at that time and was unable to undergo diagnostic testing. A private medical record from H. Skaggs, M.D., dated in August 2018, shows that a history consistent with that set forth above was reported. Dr. Skaggs opined that based upon review of the Veteran’s claims file and statements from her loved ones, as well as conducting related research and speaking with the Veteran, her ankle impairments at least as likely as not began during military service and continued uninterrupted to the present. Dr. Skaggs added that the ankle complications, in part, interfered materially with her social and occupational functioning, to include activities of daily living. She undoubtedly had been experiencing her orthopedic complications in this level of frequency and severity since discharged from service. A VA examination report dated in December 2019 shows that the Veteran was diagnosed with deltoid ligament sprain of the left and right ankles. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there was no objective evidence in the service treatment records to support the evidence that the Veteran’s bilateral ankle disability had their onset while in service. The examiner added that the claims file showed that the Veteran was injured on July 24, 2011, which was after her discharge from service, wherein she had twisted her right ankle while walking on stair and was treated and diagnosed with ankle sprain. The examiner concluded that a nexus had not been established. Having carefully considered the evidence of record, the Board finds that it is in favor of the Veteran’s claim. Here, the Board finds that the Veteran’s service treatment records clearly show a history of ongoing chronic ankle sprains in both lower extremities during her period of active service. Following service, there is evidence of continued treatment, and in December 2019 she was diagnosed with deltoid ligament sprain of the left and right ankles. Moreover, while the opinion of Dr. Skaggs did not provide specific diagnoses of regarding the Veteran’s ankles, it does provide a nexus of the current disabilities to active service. This opinion is considered probative as it was definitive and based upon a history of the Veteran’s disability. The Board has considered the November 2011 and December 2019 VA examination reports, however, deems them to be of limited probative value. In this regard, the November 2011 examiner could not provide a diagnosis because the Veteran had been pregnant at that time and could not be fully evaluated. The December 2019 examination report is probative as to specific diagnoses for the Veteran’s current ankle disabilities; however, the history of those disabilities is based upon an inaccurate factual premise that there was no evidence of treatment in service. As demonstrated above, she was treated on numerous occasions during service for a history of multiple ankle sprains. Thus, considering the evidence of current diagnoses regarding the left and right ankles, and the favorable nexus opinion from Dr. Skaggs, the Board finds that service connection is warranted. Under the benefit of the doubt rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Therefore, resolving all reasonable doubt in the Veteran’s favor, the evidence of record sufficiently relates the Veteran’s left and right ankle disabilities to active service, and service connection is established. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a right shoulder disorder. The Veteran asserts that she has current left and right shoulder disabilities that were first manifested during her period of active service. She has indicated that her symptoms have been ongoing ever since active service. A review of the service treatment records reveals that the Veteran’s April 2006 enlistment report of medical history shows that she indicated she had never had a painful shoulder, elbow or wrist, or arthritis, rheumatism, or bursitis. Thereafter, a report of medical history dated in May 2008 shows that she reported having experienced a painful shoulder, elbow or wrist, which the examiner elaborated referred to pain in shoulders. It was also noted that she had bursitis, but the relevant joint was not indicated. A service treatment record dated in March 2010 shows that the Veteran reported that for an untold amount of time, she had been having pain in the upper shoulders. She added that she had attempted stretching which minimized the pain, but did not resolve the issue. She had no recollection of trauma. The assessment was unspecified muscle strain (stress/position induced strain of the trapezius muscle). She was advised to stretch, given a pamphlet for guidance, and advised to take over-the-counter medication for worse discomfort. The November 2011 VA examination report shows that the examiner indicated that he could not verify any of the diagnoses because the Veteran was pregnant at that time and was unable undergo diagnostic testing. The December 2019 VA examination report shows that while the Veteran reported that her symptoms, manifested by dull pain, popping, and an inability to lift heavy objects, had gotten worse, the examiner indicated that each shoulder was normal. The examiner explained that there was no objective evidence of a bilateral shoulder diagnosis in the service treatment records, and that there was a compliant of a bilateral shoulder condition in 2010 but no diagnosis was given. The examiner added that as there was no objective evidence of a current bilateral shoulder condition, a nexus had not been established. While the VA examiner determined that there was no current left or right shoulder diagnosis, the examiner did not opine as to whether the Veteran’s condition manifested in symptoms that caused functional impairment, such that they could be considered a “disability.” The term “disability” as used in 38 U.S.C. § 1110 refers to the functional impairment of earning capacity, and pain alone can serve as a functional impairment and, therefore, qualify as a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As such, a remand is needed to determine whether the Veteran has functional impairment due to pain, as pain alone can serve as a functional impairment and therefore qualify as a disability, if related to active service. 3. Entitlement to a TDIU, prior to August 14, 2018. 4. Entitlement to basic eligibility to DEA, prior to August 14, 2018. By rating action dated in November 2020, the RO granted entitlement to a TDIU and DEA, each effective as of August 14, 2018. As the Veteran filed her claim for service connection benefits in April 2010, the issue of entitlement prior to August 14, 2018, remains on appeal. In light of the award of service connection for left and right ankle disabilities, and given the remand of the issues of service connection for left and right shoulder disorders, a decision on entitlement to a TDIU and DEA, prior to August 14, 2018, must be deferred pending implementation of the grants of service connection and completion of the requested development. The claims are inextricably intertwined, therefore, the TDIU and DEA claims are not yet ripe for consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other); see also 38 C.F.R. §§ 3.807, 21.3021. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for her asserted left and right knee disorders. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion below. Is it at least as likely as not that the Veteran has a left and/or right shoulder “disability” that had onset in service, was manifested by arthritis in the year immediately following active service, or is otherwise the result of a disease or injury in service, to include the May 2008 and March 2010 in-service reports of shoulder symptoms? The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a specific left or right shoulder diagnosis in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 2. Implement the awards of service connection for left and right ankle disabilities. Thereafter, following completion of the requested development, readjudicate the issues of entitlement to a TDIU and DEA, each prior to August 14, 2018. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Orfanoudis, 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.