Citation Nr: 21024722 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-26 917 DATE: April 26, 2021 ORDER Entitlement to service connection for left ankle disability is denied. Entitlement to service connection for bilateral foot disability, to include gout, is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s pre-existing left ankle disability was not shown to have been aggravated by service. 2. The Veteran was not shown to have a current foot disability which is related to service. 3. The Veteran’s service-connected disabilities were reasonably shown to result in the inability to maintain a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for bilateral foot disability, to include gout, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1978. The Veteran died in June 2017. The appellant is the Veteran’s surviving spouse. In a February 2018 letter, the AOJ notified the appellant that she was formally recognized as a substitute claimant in the Veteran’s appeals, including service connection for left ankle disability and bilateral foot disability, and entitlement to TDIU. This matter is on appeal before the Board of Veterans Appeals (Board) from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the appeal was remanded for further development. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. The standard of proof to be applied in decisions on claims for Veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for left ankle disability. The Veteran alleges that he has a current left ankle disability, which is related to service. The Veteran’s service treatment records show that on March 1974 enlistment examination, the lower extremities were found to be normal. At a February 1975 medical visit, the Veteran reported a history of pre-service football injuries to both ankles and the Veteran reported frequent sprains since that time. He was concerned about the icy conditions of his current assignment. Medical personnel recommended the issuing of flight boots. On his May 1978 separation examination, the Veteran’s lower extremities and feet were found to be normal. At a September 2013 VA ankle examination, the Veteran was diagnosed with left soleus muscle injury. The Veteran reported that he initially injured his ankle while on patrol during service. He indicated that he slipped on the ice and felt an immediate pain and a pop in his medial left ankle. He noted that he was treated conservatively for the injury with use of Ace bandage for approximately 4 to 5 weeks and the use of NSAID’s. He reported that after approximately 3 to 4 months of recovery, he experienced no pain. Currently, he reported that he was limping more and that he had reduced strength in the left ankle. He denied any pain. The examiner found that the Veteran did have functional loss in the left ankle area in the form of weakened movement, excess fatigability, and disturbance of locomotion. The examiner found that there was mild loss of muscle mass of the medial portion of the soleus musculature of the left lower leg. A left ankle X-ray showed degenerative changes of mild severity and a well corticated osseous density adjacent to the left medical malleolus, which may have represented sequela of prior trauma. Several large rectangular calcifications were seen over the tissues of the left posterior distal leg and ankle. The examiner opined that there was no objective evidence of a left ankle/leg muscle injury that occurred while in military service. The examiner commented that the February 1975 service treatment record noted the frequent pre-service ankle sprains occurring during high school football but there was no indication in the service treatment records or separation examination of any left leg/ankle injury occurring during military service. At a May 2014 VA medical visit, the Veteran complained of progressive muscle wasting in the left calf and that he was developing a limp. He stated that he first noticed the issue of decrease in left calf muscle size after an Achilles tendon injury in 1978 while on active duty. The diagnostic assessment was left calf muscle wasting. At June 2014 VA EMG resting, the Veteran was noted to have progressive wasting of the left calf muscle, weakness of ankle dorsiflexion and development of a slight limp. The Veteran reported that the onset was the late 1970s after slipping on ice on active duty in Maine. He reported current severe sharp pain in the Achilles tendon and noted plantar flexion weakness afterward, and that he had had progressive gastrocnemius atrophy since that time. History and physical examination were suggestive of a remote thirty plus years Achilles tendon rupture with subsequent disuse atrophy and eventual fibrous replacement with much of the medical gastrocnemius muscle fibers. A July 2014 MRI of the left ankle showed severe Achilles tendinopathy; anterior tibiotalar osteoarthritis; mild posterior tibialis and peroneal tenosynovitis; and remote full-thickness tear of the anterior talofibular ligament, consistent with prior injury. In an October 2019 addendum opinion, a VA physician’s assistant noted that review of the Veteran’s service treatment records showed that he presented to sick call on February 6, 1975 with a complaint of having ankle problems and requested flight boots. The physician’s assistant indicated that the Veteran reported in February 1975 that he initially injured both ankles in high school playing football, endorsing frequent sprains during that period, and was concerned about the icy conditions at his current duty station in Maine. The physician’s assistant also indicated that the request for boots was honored, and the Veteran’s service treatment records were silent for a diagnosis or complaint of left ankle injury while on active duty, and there was no complaint of exacerbation (temporary aggravation) of symptoms involving his left ankle or permanent aggravation of the Veteran’s left ankle. Review of imaging studies obtained on the Veteran’s left ankle confirmed post-traumatic changes, most likely related to his high school football days in the absence of left ankle trauma while serving in the military. Additionally, there were mild age-related degenerative changes consistent with the natural aging process. Thus, the examiner found that the Veteran’s left ankle condition clearly and unmistakably existed prior to service and that the condition clearly and unmistakably did not undergo a permanent worsening during service but rather his current ankle disability was due to the natural progression of the pre-existing left ankle disability. The above summarized evidence shows that the Veteran’s left ankle was found to be sound upon entry into service. However, the record of the February 1975 medical visit clearly shows that the Veteran reported recurrent pre-service left ankle sprains, which occurred while playing high school football. Also, the October 2019 VA physician’s assistant reviewed the imaging studies of the left ankle and found that the post-traumatic strains were consistent with the pre-service high school football injuries and ultimately determined that the evidence clearly and unmistakably showed that the Veteran’s left ankle disability pre-existed his military service. There is no medical evidence to the contrary. Consequently, the record contains clear and unmistakable evidence that the Veteran’s left ankle disability pre-existed service. 38 C.F.R. § 3.304. Regarding aggravation, based on review of the record, including the imaging findings, the October 2019 VA physician’s assistant found that the Veteran’s left ankle condition clearly and unmistakably did not undergo a permanent worsening during service but rather his current ankle disability was due to the natural progression of the pre-existing left ankle disability. In this regard, the physician’s assistant found that the Veteran’s service treatment records were silent for a diagnosis or complaint of left ankle injury while on active duty; that there was no complaint of exacerbation (temporary aggravation) of symptoms involving his left ankle or permanent aggravation of the Veteran’s left ankle; and that other than pathology consistent with the pre-existing ankle sprains, imaging showed only mild degenerative changes consistent with the natural aging process. Also, the September 2013 VA examiner found after examination, including X-rays, and review of the claims file, that that there was no objective evidence of a left ankle/leg muscle injury that occurred while in military service, thus also supporting a finding that the Veteran’s pre-existing left ankle disability was not aggravated by service. Additionally, there is no medical opinion evidence to the contrary (i.e. an opinion tending to indicate that the Veteran’s pre-existing ankle disability was aggravated by service). Accordingly, the evidence clearly and unmistakably shows that the Veteran’s pre-existing left ankle disability was not aggravated by service. 38 C.F.R. § 3.304. Similarly, the October 2019 VA physician’s assistant’s finding that the Veteran’s current ankle disability was due to the natural progression of the pre-existing left ankle disability and the aging process weighs against a finding that the current ankle disability was otherwise related to service. Moreover, there is no medical evidence to the contrary (i.e. medical evidence tending to indicate that the current ankle disability was related to service). At the May 2014 and June 2014 VA medical visits, the Veteran reported that he did suffer an ankle injury during service. However, as indicated above, the service treatment records do not show any actual injury. Rather, the record of the February 1975 medical visit simply indicates that the Veteran was concerned about the icy conditions of his current assignment given his pre-service ankle injuries, there are no other service treatment records showing any ankle injury, and the Veteran’s lower extremities were found to be normal at the May 1978 separation examination. The Board presumes that had the Veteran actually injured his ankle falling on ice in service with subsequent treatment with an ace bandage for 4 to 5 weeks and NSAIDS, and time to full pain free recovery of 3 to 4 months, the injury, at least some aspect of the treatment for it, and/or the presence of a profile, would have been recorded in the service treatment records (or in the case of the profile, either in the service treatment records or service personnel records), just as the Veteran’s concern about falling on the ice was recorded in the February 1975 record. Also, the February 1975 service treatment record shows that the Veteran had significant pre-service left ankle injuries, providing a specific basis for the old trauma found on the left ankle imaging reports of record. Considering the absence of any indication in either set of service records of the reported injury, associated treatment and extended recovery time that would have likely required a profile, in conjunction with the interpretation of the imaging results as being consistent with the pre-service ankle injuries, the Board is not able to credit the Veteran’s report of ankle injury during service and instead credits the medical history relied upon by the VA physician’s assistant and earlier September 2013 VA examiner of pre-existing left ankle injuries but no left ankle injury occurring during service. Also, to the extent the Veteran asserted that his current left ankle disability was related to service (other than based on the presence of continuity of symptomatology, which was not alleged), as a layperson without any demonstrated expertise concerning left ankle disability, the Board is not able to afford this assertion more than minimal probative value. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the evidence shows that the Veteran’s ankle disability clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated by service and was not otherwise related to service. Accordingly, the claim for service connection for left ankle disability must be denied. 38 C.F.R. §§ 3.303, 3.304. Entitlement to service connection for bilateral foot disability. The Veteran’s service treatment records show that on March 1974 enlistment examination, the feet were found to be normal. At his May 1978 separation examination, the Veteran’s feet were also found to be normal. At a September 2013 VA foot examination, the Veteran reported that he experienced intermittent episodes of bilateral foot pain when it was cold out. He stated that these complaints started while he was stationed at a Maine air base and was walking on the ice. He denied any history of injury or trauma or difficulty with ambulation. The examiner found that the Veteran had never had a diagnosis of pes planus (flatfoot). The examiner also did not detect any current symptomatology of the left or right foot. The examiner commented that on examination, there was no objective evidence of pes planus or other foot condition. At a January 2016 VA podiatry consultation, it was noted that the Veteran had been referred after having suffered acute gouty arthritis in both of his big toe joints. It was also noted that the only pain the Veteran was currently suffering was in the right Achilles tendon with weightbearing. At a January 2017 VA podiatry visit, the Veteran was again seen for follow-up of gouty arthritis. It was noted that he had had several acute gouty episodes since his last appointment, which had been well-controlled with indomethacin. It was recommended that he return to his primary care provider to discuss better regulation of his uric acid levels, otherwise he was at risk for additional gouty arthritis episodes. In an October 2019 addendum opinion, a VA physician’s assistant commented that review of the Veteran service treatment records was silent for a diagnosis or complaint for gouty arthritis in the toes. The Veteran was officially diagnosed with gouty arthritis in his toes in January 2016, 37 years, 7 months, and 4 days after separating from the military with no indication of a nexus to service. The physician’s assistant noted that gout is a common and complex form of arthritis that can affect anyone, characterized by sudden, severe attacks of pain, swelling, redness and tenderness in the joints, often the joint at the base of the big toe. The physician’s assistant indicated that risk factors for developing gout included diet, obesity, certain medical conditions (i.e. diabetes, metabolic syndrome, and heart and kidney diseases), certain medications (i.e. thiazide diuretics), family history for gout, age, and sex, with men more likely to develop gout earlier, usually between the ages of 30 and 50, recent surgery, and trauma. For these reasons, the physician’s assistant concluded that it was less likely than not (less than 50% probability) that the Veteran had a diagnosis for bilateral foot gout/gouty arthritis that was incurred in or caused by service. The above summarized evidence shows only a single current foot disability, gout. However, the evidence does not show the presence of gout or any other foot problems during service. In this regard, the service treatment records are negative for any foot problems with the May 1978 separation examination showing normal feet. Also, there is no post-service medical evidence of gout until 2016, approximately 37 years after service. This is a factor that weighs against a claim for direct service connection. See Maxson v. West, 12 Vet. App. 452 (1999), affd, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, there is no medical evidence of record, which even suggests a relationship between the Veteran’s gout and his military service. To the contrary, in the October 2019 addendum opinion, the VA physician’s assistant specifically concluded that it was less likely than not (less than 50% probability) that the Veteran had a diagnosis for bilateral foot gout/gouty arthritis that was incurred in or caused by service, reasoning that gout was not shown in service or for many years thereafter and there are a number of risk factors for gout, which were independent of the Veteran’s history of military service. The Veteran reported at the September 2013 VA examination of intermittent episodes of foot pain, which he thought began in service. However, he has not been found to have any current disability manifested by this symptomatology. Once again, the only current foot disability that was shown was gout, which has not been attributed to the reported intermittent foot pain brought on by cold weather, which the Veteran reported began during service. Consequently, there is no basis for awarding service connection based on this symptomatology. In sum, because a chronic foot disability was not shown in service or for many years thereafter and current foot disability was not otherwise shown to be related to service, the preponderance of the evidence is against the claim and service connection for bilateral foot disability must be denied. Alemany, 9 Vet. App. 518 (1996). Entitlement to a total disability rating due to individual unemployability (TDIU). The appellant has alleged that the Veteran’s service-connected disabilities rendered him unemployable. A total disability rating for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). TDIU will be granted when the evidence shows that the veteran, due to his service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran’s service-connected disabilities included major depression rated 70 percent disabling, tinnitus rated 10 percent disabling, hypertension rated 10 percent disabling and hearing loss rated noncompensable. Thus, he meets the schedular criteria for assignment of a TDIU. 38 C.F.R. § 4.16(a). The instant claim for TDIU stems from the Veteran’s initial appeal of the rating assigned for his service-connected depression by a December 2013 rating decision. This decision granted a 50 percent rating effective July 30, 2012. Following the Veteran’s appeal, a May 2016 rating decision increased the rating for depression to 70 percent. This appeal for increase subsequently ended when a November 2018 Board decision denied entitlement to a rating in excess of 70 percent for depression. In this decision, the claim for TDIU was deemed to be part and parcel of this underlying claim for an increased rating and was remanded for further development. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). At a September 2013 VA examination, it was noted that the Veteran was continuing to work as a sales manager for a solid waste company, and had missed work 3 to 4 times within the past 12 months due to feeling depressed. VA treatment records show that the Veteran began mental health treatment in approximately June 2014 and began group therapy in August 2014. In a January 2016 assessment, a private psychologist found that the Veteran’s major depressive disorder resulted in occupational and social impairment with deficiencies in most areas. The Veteran reported that if he had to go back to work, he was afraid he would go back to drinking alcohol and using drugs to handle the stress of being around people in a workplace that scared him. He also felt that his underlying depressive symptoms would impact his ability to work. The examining psychologist concluded that it was as likely as not that the major depressive disorder would preclude the Veteran from sustaining any form of substantial gainful employment. At an April 2016 VA pharmacy clinic visit, it was noted that the Veteran was retired. In an August 2016 opinion, a private vocational consultant indicated that the Veteran had not worked since 2014 reportedly due to his physical and mental impairments and was receiving Social Security Administration (SSA) retirement benefits. After review of the claims file, the consultant concluded that the Veteran was totally and permanently precluded from performing work at a substantially gainful level due to the severity of his major depression, tinnitus, and hearing loss. In a February 2019 VA 21-8940, Formal Claim for TDIU, the Veteran’s surviving spouse reported that the Veteran’s most recent job was as a sales associate where his highest gross earnings were $6357 per month. The above summarized evidence tends to indicate that the Veteran’s service-connected disabilities rendered him unable to follow a substantially gainful occupation. In this regard, the January 2016 psychologist specifically concluded that it was as likely as not that the Veteran’s major depressive disorder would preclude him from sustaining any form of substantial gainful employment. Also, the August 2016 private vocational consultant concluded that the Veteran was totally and permanently precluded from performing work at a substantially gainful level due to the severity of his major depression, tinnitus, and hearing loss. There is no specific medical or vocational evidence of record to the contrary. Accordingly, resolving any reasonable doubt in the Veteran’s favor, a TDIU award is granted. 38 C.F.R. §§ 3.102, 4.16(a). (Continued on the next page)   The Board notes that the record supports an award of TDIU effective the date the Veteran last worked, which as reflected on the March 2019 VA Form 21-8940, was in June 2014. The RO should assign the effective date accordingly. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, 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.