Citation Nr: 21027758 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-16 476 DATE: May 6, 2021 ORDER Entitlement to service connection for a right ankle disability is granted. FINDING OF FACT Resolving all doubt in her favor, the Veteran's preexisting right ankle disability was permanently aggravated by active duty service. CONCLUSION OF LAW The criteria for service connection for a right ankle disability have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1153, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.304, 3.306, (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1985 to November 1992. This matter is on appeal to the Board of Veterans' Appeals (Board) from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A virtual hearing was held in February 2021 before the undersigned Veterans Law Judge (VLJ). Law and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran asserts that a preexisting right ankle injury was aggravated by active service. As an initial matter, the Board notes that in cases of preexisting disorders and aggravation, a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the disease or injury existed prior to service and that it was not aggravated by service. If the disorder is noted upon entry into service, the Veteran has the burden of establishing aggravation by showing that the preexisting disorder has increased in severity as a result of active duty service. See 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). On the other hand, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). If such an increase in severity is shown, it is presumed to have been aggravated absent clear and unmistakable evidence that the increase in disability is due to the natural progression of the disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Here, the evidence, including the Veteran's own statements, indicate that she had a right ankle disability prior to active duty. The April 1985 enlistment examination was normal except for a surgical scar on the right ankle. On the April 1985 enlistment report of medical history, the Veteran noted the history of a broken right ankle in 1982. X-rays revealed an old fracture with screw fixation, later removed, but she had normal ankle function and was accepted into service. See April 1985 service treatment records. A March 2017 letter submitted by the Veteran's private treating physician noted that her ankle injury started at age 15. A VA examination report from January 2017 found that the Veteran's ankle injury preexisted service. Although the Veteran reported that she was active and without ankle issues following the pre-service injury and before her enlistment, she is not competent to opine on whether her ankle injury had fully healed as the nature and progression of such an injury requires medical training and expertise. Instead, the medical experts who have reviewed the Veteran's file or provided ongoing treatment have indicated that her disability existed prior to service. Accordingly, the Board finds that there is clear and unmistakable evidence that the Veteran had a preexisting right ankle condition prior to active service and the presumption of soundness has been rebutted. See Wagner, 370 F.3d at 1096. However, while the Veteran's right ankle disability preexisted service, the evidence of record indicates that her disorder was aggravated by active service. Specifically, the service treatment records document complaints of right ankle pain with activity such as running. See September 1985, January 1986 service treatment records. In January 1986, she was diagnosed with right ankle pain and weakness and prescribed ice and strengthening exercises. Another undated service treatment record notes complaints of tenderness and an antalgic gait status post 1982 right ankle injury; she was diagnosed with a mechanical ankle sprain and metatarsalgia and prescribed anti-inflammatories with a temporary physical profile. Notably, the service treatment records do not include a separation examination and the Veteran has asserted that she was not afforded a physical examination at time of separation. See March 2017 VA Form 9 substantive appeal; February 2021 Board hearing transcript. The Veteran testified that the right ankle injury in June 1982 healed normally after surgery and she was able to return to her regular activities including running track, cross-country, biking, and horseback riding. She was asymptomatic at time of enlistment. During service, however, she began to experience a recurrence of pain in the right ankle with long marches. She described participating in the Nijmegen March, a 100-mile march over four days. She explained that she was a television personality for Armed Forces Network and had to carry all of her equipment including cameras and batteries over mountainous terrain. See February 2021 Board hearing transcript. Her service personnel records confirm her military occupational specialty (MOS) was Broadcast Journalist. She also stated that she participated in powerlifting events during military service and could deadlift 495 pounds, a record at that time. She alleges that she sustained a compression injury to the right ankle as a result of powerlifting. She sought medical treatment but was told to apply ice and heat and take ibuprofen. The service personnel records include certificates of achievement for powerlifting championships. In addition, the Veteran submitted lay statements from R.B. and her mother, B.G. (initials used to protect privacy). R.B. corroborated the Veteran's allegation that she was injured during a 1989 powerlifting competition. B.G. stated that after the 1982 right ankle injury the Veteran returned to her normal activities, including running high school track. See February 2017 lay statements. The record indicates that the Veteran underwent surgery on the right ankle in 2012 and again in 2016 when she had a total arthroplasty. The surgical report from August 2016 indicates that she had extensive arthritis throughout the ankle. The Veteran submitted a medical opinion letter from her treating orthopedist, D.B., who noted the history of a right ankle injury at age 15 requiring open reduction and internal fixation of the injury. The Veteran reported that during service she did powerlifting and participated in squat and deadlift competitions. She was also required to do heavy running and ruck marching while wearing standard issue combat boots. She now has significant post-traumatic arthritis of the right ankle. Dr. D.B. opined that her military activities contributed to the current condition of her right ankle which is one of painful post-traumatic arthritis. See March 2017 medical opinion letter from Dr. D.B. There is no clear and convincing evidence that the Veteran's condition was due to the natural progression of the disease. In arriving at this conclusion, the Board acknowledges that the negative evidence includes a January 2017 VA examiner's report which states the Veteran's right ankle disability was not aggravated beyond its natural progression due to service because the 1982 injury predisposed the Veteran to early degenerative joint disease of the right ankle. However, the Veteran was asymptomatic before service and the examiner did not explain why the documented complaints of right ankle pain in service attributed to activities such as marching and powerlifting did not constitute evidence of aggravation. In addition, the examiner did not have the opportunity to consider the February 2017 lay statements or Dr. D.B.'s March 2017 medical opinion. As such, the Board concludes that this opinion does not amount to clear and convincing evidence that the worsening of the disorder was merely due to the natural progression of the disorder. The Board finds the Veteran's testimony to be credible and persuasive, particularly as it is corroborated by other evidence including the service records and lay statements from R.B. and B.G. As set forth above, she also submitted a medical opinion letter from her treating orthopedist attributing her current right ankle disability to her activities during military service such as marching and powerlifting. (Continued on the next page.) Thus, resolving all reasonable doubt in her favor, the Board finds that her preexisting right ankle disability was permanently aggravated by the Veteran's period of active service and service connection for such disability is therefore warranted. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote, 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.