Citation Nr: 21021903 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-24 301 DATE: April 14, 2021 ORDER Service connection for a right ankle disorder, characterized as a right ankle bimalleolar fracture, status-post open reduction and internal fixation, is granted. REMANDED Entitlement to a temporary total disability rating for right ankle surgery is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT It is at least as likely as not that the Veteran’s right ankle disorder is proximately due to her service-connected bilateral plantar fasciitis. CONCLUSION OF LAW The criteria for service connection for a right ankle disorder, characterized as a right ankle bimalleolar fracture, status-post open reduction and internal fixation have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2004 to May 2006. In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection 1. Entitlement to service connection for a right ankle disorder, characterized as a right ankle bimalleolar fracture, status-post open reduction and internal fixation The Veteran contends that service connection is warranted for her right ankle disorder because her current right ankle disorder is either related to events that occurred during her active duty service, including an ankle fracture, or is proximately due to or the result of her service-connected bilateral plantar fasciitis. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. Generally, the evidence 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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Moreover, service connection is warranted for a disability that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, when service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Based upon the evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for her right ankle disorder should be granted because the evidence is at least in equipoise that her current right ankle disorder is proximately due to or the result of her service-connected plantar fasciitis. Here, the report from the June 2015 VA examination reflects that the examiner opined that the Veteran’s right ankle disorder was at least as likely as not proximately due to and/or caused by her service-connected bilateral plantar fasciitis. In support of that opinion, the examiner explained that her bilateral plantar fasciitis caused her to experience extreme pain in both feet, and to compensate for that pain with her gait, which resulted in the fall that caused her to fracture her ankle. The June 2015 VA examiner’s opinion, in conjunction with the competent and credible testimony of the Veteran that her bilateral plantar fasciitis made it difficult for her to walk and caused the fall where she broke her ankle, confirms that the evidence is at least in equipoise that her current right ankle disorder is proximately due to or the result of her service-connected plantar fasciitis. The Board acknowledges that the negative evidence includes the report from a March 2017 VA examination, where the examiner opined that the Veteran’s right ankle disorder was not secondary to bilateral plantar fasciitis. In support of that opinion, the examiner explained that her right ankle fracture was less likely than not due to her service-connected plantar fasciitis because she had adequate strength and stability in her ankles and because there was no association between acute or chronic bilateral plantar fasciitis and the pathology of fractures involving the ankle mortise. The Board finds that this opinion is entitled to less significant probative weight because it fails to address how the pain that the Veteran experienced as a result of her plantar fasciitis impacted her gait, and fails to support the indicated lack of association between the Veteran’s plantar fasciitis and ankle fracture with any citations to medical literature. Accordingly, the Board finds that the opinion of the March 2017 VA examiner is entitled to less probative weight than the opinion of the June 2015 VA examiner, and that the evidence is at least in equipoise that her right ankle disorder is proximately due to or the result of her service-connected bilateral plantar fasciitis. By virtue of the foregoing, the Board concludes that service connection is warranted for the Veteran’s right ankle disorder. REASONS FOR REMAND 1. Entitlement to a temporary total disability rating for right ankle surgery is remanded. 2. Entitlement to TDIU is remanded. As set forth above, the Board has granted the Veteran’s claim of service connection for a right ankle disorder. The Veteran’s claim of entitlement to a temporary total disability rating is dependent upon the Agency of Original Jurisdiction (AOJ) effectuating the Board’s grant of service connection for a right ankle disorder and assigning an initial rating. Accordingly, the Board finds that a remand of the issue of entitlement to a temporary total disability rating for right ankle surgery is necessary because a decision on this issue currently would be premature prior to the AOJ’s effectuation of the Board’s grant of service connection for a right ankle disorder. With respect to the Veteran’s claim for TDIU, because the Board has granted service connection for a right ankle disorder, the Veteran’s disability picture has now changed. Therefore, it would be prejudicial to evaluate the Veteran’s TDIU claim in the first instance given the change to her disability picture, and the AOJ should reevaluate this issue prior to Board consideration. The matters are REMANDED for the following action: 1. The AOJ should undertake any additional action it deems necessary in order to properly adjudicate the Veteran’s claims of entitlement to a temporary total disability rating for right ankle surgery and TDIU, including any additional VA examinations. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Crosnicker, Associate Counsel