Citation Nr: 21027223 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-10 450A DATE: May 5, 2021 ORDER Entitlement to service connection for a right ankle disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, her right ankle disability began during active service. CONCLUSION OF LAW The criteria for service connection for right ankle disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1982 until her honorable discharge in September 1985, where she earned a parachute badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2018, the Veteran testified before Veterans Law Judge (VLJ) Jacqueline Monroe at a hearing via videoconference. A transcript of her testimony has been associated with the claims file. The VLJ who conducted the hearing is no longer employed by the Board. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. As that person is no longer available, the appeal was reassigned for a decision. 38 C.F.R. § 20.106(b). A letter explaining this and her right to a new hearing was sent to the Veteran in March 2021. No response was received. In December 2018, the Board reopened the right ankle claim and remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain updated service treatment records, obtain updated VA treatment records, request a release for records from the Veteran, and schedule her for a new VA examination. A subsequent development letter was sent to the Veteran in October 2019 and a VA examination took place in September 2020. Entitlement to service connection for a right ankle disability. The Veteran asserts that she injured her ankle during a parachuting jump in active service and that she was pushed out of a truck after the injury and landed on her ankle again causing further injury. She asserts that she has suffered from pain in her ankle and limited mobility ever since. There is no reference to a right ankle disability in the Veteran's service treatment records. The Veteran has had two VA examinations, neither contains a diagnosis of a chronic right ankle disability. However, where pain causes functional impairment, a disability for VA compensation purposes may exist even if there is no underlying diagnosis. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran's first VA examination took place in December 2014. The examination was conducted for bilateral ankle pain, no diagnosis was provided, and the Veteran denied flare-ups but reported functional loss due to limitation to her ability to walk over time. Initial range of motion for both ankles was abnormal with dorsiflexion of 10 degrees and plantar flexion of 30 degrees. Pain was noted on examination and found to cause functional loss. There was objective evidence of bilateral localized tenderness or pain on palpation of the joint or associated soft tissue with flexion and extension. Pain with weight bearing was present on both ankles. Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time and a range of motion could not be found due to pain. See December 2014 VA Examination. Muscle strength was normal, there was no muscle atrophy or ankylosis present, and both ankle joints were stable. The examiner concluded that the findings did not impact her ability to complete occupational tasks and stated, "Veteran does have antalgic gait, uses cane however was able to ambulate into exam room, thus likely has greater range of motion to the ankles than noted above. Again[,] above findings difficult to interpret will order ankle [x-ray] today." Id. Her most recent VA examination took place in September 2020. The diagnosis listed was "limitation of motion, right ankle." The examiner noted that past x-rays were "negative." The Veteran reported having "constant and dull/achy pain that is sharp laterally with movement" in the right ankle. She reported that she wears a brace daily; that the "best treatment" is for her to get off her feet; and that she is unable to walk, stand, or drive for long periods due to her right ankle. The examiner stated that no functional loss or impairment was reported in the left ankle. While the right ankle range of motion was abnormal with 10 degrees dorsiflexion and 15 degrees plantar flexion, the range of motion for the left ankle was normal. Pain was noted on examination as a cause of functional loss in the right ankle and the examiner explained that the Veteran leaned forward toward her in a guarding fashion during palpation due to mild pain behind the lateral malleolus. No pain was noted in the left ankle. There was no additional loss of function or range of motion after repetitive use testing. Although, pain and fatigue decreased the right ankle's range of motion to 5 degrees dorsiflexion and 10 degrees plantar flexion. There was no change in the left ankle. Flare-ups were not endorsed by the examiner. Muscle strength was normal, there was no muscle atrophy or ankylosis present, and the left ankle joint was stable while the right ankle showed instability. Imaging did not show arthritis in either ankle. A September 2020 x-ray of the right ankle was negative. The examiner found that the right ankle pain limited the Veteran's ability to work and concluded that there was objective evidence of pain on passive motion and non-weight bearing of the right ankle. Neither was found for the left ankle. The United States Court of Appeals for Veterans Claims (Court) has held that the "current disability" requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). Furthermore, where pain causes functional impairment, a disability for VA compensation purposes may exist even if there is no underlying diagnosis. See Saunders, 886 F.3d 1356. The Veteran's previously denied right ankle disability claim was reopened by the Board in December 2018 and remanded. Both the December 2014 and September 2020 VA examinations failed to diagnose the Veteran with a right ankle disability and x-rays are negative for a disability. However, the December 2014 examination found that the Veteran had bilateral ankle pain that made it difficult for her to walk. The September 2020 examination then found that the right ankle had pain that made it difficult for the Veteran to stand, walk, or drive, and the left ankle was normal and pain free. Both examinations show objective evidence of pain in the right ankle, while only the December 2014 examination shows objective evidence of pain in the left ankle. For VA purposes, the Veteran has a current disability during the pendency of her appeal because objective evidence of pain is present that causes a functional impairment in the right ankle. As a result, the first element of service connection has been met for the right ankle. The Veteran, her representative, and Congressional representative have made numerous attempts to obtain her service treatment records. Only a partial record has been found. However, the Veteran is competent to report her symptoms and any incidents in service. She asserts that her ankle injury is due to her role as a paratrooper where she injured her ankle during a jump. The Board finds that the Veteran is certainly competent to provide evidence regarding her time in service and the symptoms she experienced in her ankle at that time. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For this reason, the Board finds that she suffered from an injury in service when she landed in a tree during a jump injuring her right ankle and when pushed out of a truck onto her right ankle. As a result, she meets the second element of service connection. The September 2020 VA examiner found that the Veteran was a credible historian. Although not diagnosed with arthritis, the examiner stated in the bilateral knee exam, "Research has well established a relationship between parachuting and injuries to the ankles, back, leg, and hip. The injuries can occur during any point during the process of the jump, but impact injuries are the most common. The incidence of arthritis is more common in those who are a part of high impact activities such as parachuting, as opposed to those who were not..." Medical records from November 2003 indicate that the Veteran experienced right ankle pain before filing her claim. Here, the Board has no reason to question the credibility of the Veteran. While there may be other causes of ankle pain and limitation of motion, generally, after review of the facts of this particular case, the Board is satisfied that the evidence is at least in equipoise. Therefore, after affording her the benefit-of-the-doubt, the Board awards her service-connection for a right ankle disability. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.