Citation Nr: 21027074 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-51 374 DATE: May 4, 2021 ORDER Entitlement to service connection for a left ankle disability is granted. Entitlement to service connection for major depressive disorder is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's left ankle disability is related to her active duty service. 2. The Veteran's major depressive disorder is secondary to her left ankle disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a left ankle disability have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for major depressive disorder have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to April 1978. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office. In October 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In February 2020, the Board reopened the Veteran's service connection claims for left ankle disability and major depression and remanded the matters for more development. Now the matters returned to the Board. The Veteran is seeking service connection for a left ankle disability and major depression. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1131 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2020). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. 1. Left ankle disability The Veteran contends that her current left ankle condition began in service when she had the ankle injury while she was in basic training. The evidence of record shows the Veteran's current diagnosis of left ankle tendinitis. Thus, the Board finds that the first Shedden element for service connection is met. As to the in-service incurrence of the left ankle injury, the Veteran's service record indicates that she had obtained physical therapy for sprained ankles in April 1978. Also, the Veteran competently testified that she had injured her left ankle while doing basic training drills and the left ankle condition was worsened when her training instructor insisted that she continues to go through the drills despite the medical order to stay off her feet. In light of above, the Board finds that the second Shedden element for service connection is also met. The Board notes that the Veteran's treating podiatry surgeon opined in July 2016 that the Veteran's left ankle pain was due to the basic training injuries in service, and the left ankle injury is at least likely and/or with medical certainty related to her service. The Board finds the July 2016 medical opinion to be competent and credible evidence and assigns probative weight. On the other hand, a September 2020 VA examiner opined that the claimed left ankle condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran sprained her left ankle in service and was treated for ankle sprains, but reasoned that there is no evidence to show that her left ankle sprain in service was chronic or recurrent after the initial sprain in 1978. The examiner pointed out that the available record shows complaints in 1978 and then in 2014, which has over 30 years gap. The Board finds the September 2020 VA medical opinion to be competent and credible evidence, but cannot assign more probative weight than the July 2016 medical opinion as the September 2020 examiner failed to consider the Veteran's competent testimoney of her inability to walk at the time of separation and ongoing left ankle symptoms service when rendering the opinion. See also November 2014 Statement from R.C. (buddy statement on witnessing the Veteran coming back from service on crutches due to in-service injury). Based on above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's left ankle disability is related to her active duty service. Consequently, resolving reasonable doubt in the Veteran's favor, the Veteran's entitlement to service connection for a left ankle disability is warranted. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. Major depressive disorder The Veteran contends that her depression began in service when her training instructor did not believe her report of ankle injuries and accused her of lying to avoid training. In September 2020, the Veteran underwent a VA psychiatric evaluation. The examiner reported that the Veteran has a current diagnosis of recurrent major depressive disorder under DSM-V criteria, although a diagnosis of posttraumatic stress disorder under DSM-V criteria was not found. Notably, the examiner opined that the claimed condition was at least as likely as not proximately due to or the result of her left ankle disability. The examiner provided that the Veteran's in-service ankle injury, which has persisted and developed into a long term physical impairment, has negatively impacted her professional life. Also, the examiner stated the shame and low mood that the Veteran felt after the ankle injury persisted over the years and caused her significant emotional distress. In light of above, the Board finds that Veteran's major depressive disorder is secondary to her left ankle disability. Consequently, the Veteran's entitlement to service connection for major depressive disorder is warranted. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.