Citation Nr: 21026886 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-42 498 DATE: May 4, 2021 ORDER Entitlement to service connection for a left distal fibula impairment, claimed as malunion of the fibula, is granted. REMANDED Entitlement to a rating in excess of 10 percent for residuals of a left ankle fracture, prior to October 19, 2015, is remanded. FINDING OF FACT The Veteran's fibula impairment is at least as likely as not related to a service injury. CONCLUSION OF LAW The criteria for service connection for a fibula impairment, to include malunion of the fibula at the left ankle, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to April 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in October 2018 and February 2020 and were remanded for additional development. These issues are once again before the Board. In October 2018, the Board denied service connection for left ankle arthritis and a rating in excess of 10 percent for a left ankle fracture residuals for the period prior to October 19, 2015, granted a 20 percent rating for the period after October 19, 2015, and remanded the issue of a separate rating for malunion of the fibula (also claimed as associated with service-connected left ankle). The Veteran appealed the service connection claim for left ankle arthritis and the denial of a rating in excess of 10 percent prior to October 19, 2015 to the United States Court of Appeals for Veterans Claims (Court). In October 2019 the Court issued an Order granting a Joint Motion for Partial Remand (JMR). That Order, in pertinent part, vacated and remanded the portion of the October 2018 Board decision that denied entitlement to service connection for degenerative arthritis of the left ankle, and a rating in excess of 10 percent for left ankle residuals for the period prior to October 19, 2015. The Veteran waived his appeal of the portion of the Board's decision denying an evaluation in excess of 20 percent for left ankle disability from October 19, 2015. In February 2020, the Board granted service connection for left ankle arthritis and remanded the issue of a rating in excess of 10 percent for the left ankle disability prior to October 19, 2015. The case is once again before the Board. In October 2018, the Board remanded the claim for entitlement to a separate compensable rating for malunion of the left fibula to obtain a medical opinion. VA medical opinions were provided in January 2021. A February 2021 Supplemental Statement of the Case (SSOC) was issued regarding a rating in excess of 10 percent for left ankle disability prior to October 19, 2015; however, the RO did not address service connection for malunion of the fibula. Notwithstanding this lack of SSOC, the Board will adjudicate the matter herein. The Veteran is not prejudiced by the Board adjudication of the service connection for malunion of the fibula of the left ankle because the benefit to which the evidence relates is fully granted in this decision. 38 U.S.C. § 20.904(c)(3). Service connection for malunion of the fibula at the left ankle. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran maintains that he is entitled to a separate disability rating for his fibula impairment, claimed as malunion of the fibula of the left ankle. The Veteran asserts that he fractured his left ankle in service, and it was inappropriately put into a cast, resulting in excessive swelling that caused his fibula to heal improperly. Treatment records indicate that the Veteran has been diagnosed with malunion of the fibula and the Veteran's service treatment records demonstrate that the Veteran fractured his left ankle in service. The question before the Board is whether the Veteran's current fibula disability is related to his in-service ankle injury. A November 2010 x-ray report found some deformity in the distal left fibula, which may be related to an old healed fracture. There was no acute fracture or dislocation radiopaque foreign body and no acute disease was found. Also, of record, is a May 2011 MRI report. The radiologist found no osseous or artticular abnormalities of the ankle. In October 2011, Dr. T.H., the Veteran's chiropractor stated, based on his review of x-rays, there appears to be a malunion of the fibula. The physician did not provide a nexus statement but stated that the ankle deformity was related to an old fracture. In February 2011, Dr. D.H., the Veteran's private physician, stated the damage to the Veteran's left side is due to an old fracture. However, she did not state that the fracture occurred in service. However, Dr. D.H., submitted prior and subsequent statements indicating that she believed the Veteran's fibula disorder was related to service based on the Veteran's reported history. See Correspondence received December 2010 and November 2019. As noted above, in October 2018, the Board remanded this matter to obtain an opinion as to whether the Veteran's fibula malunion is related to service. In August 2020, a VA examiner stated that the Veteran's malunion of the fibula of the left ankle was at least as likely as not due to or the result of the Veteran's service-connected condition. The examiner reasoned that the Veteran sustained a fracture of the left fibula in service. The examiner noted that the records indicated that the fracture healed well without deformity and there are conflicting reports regarding the severity of the fracture, the degree of deformity and the presence of arthritis; however, the medical evidence did show a malunion of the bone. In November 2020, a VA examiner stated that the claimed condition was less likely than not related to service on a direct or secondary basis because the Veteran did not have a diagnosis of malunion of the fibula. The report indicated that the 2011 MRI report and the 2010 x-rays were reviewed. However, the examiner did not address the private physicians reports of a malunion of the fibula at the left ankle. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's malunion of the fibula at the left ankle is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a left fibula impairment is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a disability rating in excess of 10 percent for left knee disability prior to October 19, 2015. In August and December 2010, the Veteran stated that he had applied for early age social security and disability benefits from the Social Security Administration (SSA). To date, his SSA records have not been associated with the claims file, nor does it appear that an attempt has been made to obtain them. VA has a duty to obtain SSA records when they may be relevant to a claim. The possibility that SSA records could contain evidence relevant to the appellant's claim cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). Therefore, the Board finds that an attempt should be made to obtain any available SSA records. 38 C.F.R. § 3.159(c)(2). The matter is REMANDED for the following action: 1. Obtain a copy of any decision to grant or deny SSA benefits to the Veteran and the medical records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, 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 5271establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.