Citation Nr: 21016001 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 19-32 380A DATE: March 19, 2021 ORDER Entitlement to service connection for a right ankle is denied. Entitlement to service connection for a left ankle is granted. FINDING OF FACTS 1. The medical evidence of record is against finding that the Veteran has a current disability of the right ankle. 2. The weight of the evidence shows that the Veteran has a current left ankle disability that is related to his military service. CONCLUSIONS OF LAW 1. The criteria for a service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303. 2. The criteria for a service connection for a left ankle disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2013 to June 2017. This matter is on appeal from a July 2018 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a March 2021 Board hearing. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence showing (1) current disability; (2) in-service incurrence in or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). As a preliminary matter, the Board notes that the appeal has been developed as a service connection for a right ankle disability. However, the Veteran has credibly testified and clarified that his service connection claim was in fact, for a left ankle condition, rather than a right ankle disorder. The Board notes that his claims file contains medical evidence of a left ankle disability, which had onset in service. Where the disability for which a veteran seeks service connection is not directly associated with service, but information obtained during the processing of the claim reasonably indicates that the cause of the disability is a disease that may be associated with service, VA must investigate whether the causal disability is related to service to determine whether the claimed disability is related secondarily to service. DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). If VA determines that the causal disability is, in fact, related to service, then the claim for service connection for this disability “reasonably encompasses” a claim for that causal disability, such that no additional filing is necessary to initiate a claim for service connection for the causal disability. Id Additionally, VA “should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim” and that a claimant does “not file a claim to receive benefits only for a particular diagnosis, but for the diagnosis, but for the affliction [the] condition, whatever that is, causes.” Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Consistent with VA’s duty to maximize benefits, the Board has now construed the Veteran’s claim broadly and will adjudicate the appeal as service connection for a right ankle disability and service connection for a left ankle disability. Even though AOJ did not adjudicate the service connection claim for a left ankle disability in the first instance, the Veteran is not prejudiced by this adjudication as the Board is granting the benefit sought. First, the Board finds that service connection for a right ankle disability is not warranted. The Veteran’s service treatment records and his post service medical records do not show a clinical diagnosis of a current disability of a right ankle. Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, given the lack of a current disability during the period on appeal, service connection for a right ankle disability cannot be awarded and the claim is denied. With regard to the Veteran’s service connection claim for a left ankle disability, the Board finds that the medical evidence clearly shows a current condition that is related to his military service. The Veteran has credibly testified at his March 2021 Board hearing that he sustained an ankle fracture during a two-week training in service. His injury was immediately apparent, and he was seen at a Naval hospital for treatment. This was confirmed by his service treatment records, which document a left ankle injury in 2016. He was ultimately treated by an orthopedic clinic, which included casting and boot, with subsequent physical therapy. After his separation, private treatment records continue to report a left ankle condition, traceable to his in-service injury. In light of the foregoing, the Board finds that the weight of the competent and probative evidence supports the Veteran’s service connection claim. Accordingly, service connection for a left ankle disability is warranted and the claim is granted. TIFFANY DAWSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Yeh, 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.