Citation Nr: 21031875 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 14-00 880 DATE: May 24, 2021 ORDER Entitlement to service connection for left ankle degenerative joint disease is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, left ankle degenerative joint disease is related to a left ankle injury during the Veteran's period of honorable service. CONCLUSION OF LAW The criteria for entitlement to service connection for left ankle degenerative joint disease have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1987 to March 1992; he was a recipient of a Combat Infantryman Badge during that period of service. He also served on active duty from October 2003 to May 2011 but received an other than honorable conditions discharge for that period of service and is barred from receiving VA benefits based on service from October 2003 to May 2011. This matter was last before the Board of Veterans' Appeals (Board) in September 2020 and remanded to a Department of Veterans Affairs (VA) Regional Office (RO) for additional development. By rating decision dated in January 2021, service connection was granted for posttraumatic stress disorder (claimed as insomnia and nightmares), erectile dysfunction, and right thumb retained metallic fragments (claimed as shrapnel injury). As these were full grants of the benefits sought such matters are no longer before the Board for appellate consideration. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (i) a current disability (for which service connection is sought); (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the current claimed disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time post-service (one year for arthritis). 38 U.S.C. §§ 1112, 1113,1137; 38 C.F.R. §§ 3.307, 3.309. A nexus of a chronic disease to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). The Veteran's service treatment records, during his period of honorable service (July 1987 to March 1992) show he twisted his left ankle in a fall from an obstacle times one degree in December 1989. He had mild swelling and his left lateral malleolus was tender. The assessment was inversion sprain. In his 1992 separation medical history report, the Veteran indicated he had foot trouble, broken bones, and bone, joint or other deformity. On September 2004 radiologic examination report, views of the left ankle showed evidence of a 0.8 cm. diameter well-corticated bone density subjacent to the medial malleolus. Differential would include sequela of previous trauma versus an accessory possible or incompletely fuses epiphysis. Slight degenerative changes ventral tibial talar articulation. The impression was degenerative changes. On August 2010 VA examination of the Veteran's ankles, there was mild tenderness to palpation of the medial and lateral malleoli and evidence of painful motion. X-rays of the left ankle revealed that there is degenerative change about the left ankle particularly on its lateral aspect and irregularity of the posterior tibia suspicious for remote healed injury. No evidence of acute fracture was identified. The diagnoses were degenerative joint disease and gout affecting bilateral ankles. The examiner noted that the Veteran has been diagnosed with having gout in multiple joints, involving bilateral ankles. The pain is associated with weakness, stiffness, swelling, and fatigue in the feet upon rest as well as upon standing and walking. On October 2020 VA-contract ankle conditions examination, the Veteran reported that he would roll his ankles a lot when he was on active duty. He also fractured his feet several times and that would cause ankle pain. He was eventually diagnosed with gout that would affect his ankles. He was given pain medication and then eventually started on gout medications. He continues to take medication for the gout in his ankles. His current symptoms are intermittently aching throbbing pain to both ankles, both ankles will pop at times, and it felt like his ankles would roll easily. X-rays showed bilateral degenerative arthritis. The diagnoses were degenerative arthritis and gout of the bilateral ankles. The examiner opined that the Veteran's left ankle degenerative joint disease was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed inservice injury, event, or illness. The rationale for the opinion was that the claims file is positive for the left ankle on December 1989 and other dates during his second period of service, and post service in October 2018 and July 2020. The examiner noted that a diagnosis of left ankle gout and degenerative joint disease, confirmed on imaging, was provided during the compensation examination prior to the Veteran being released from active duty in August 2010. X-rays of September 2004 and August 2010 indicate changes based on old trauma. The note in December 1989 indicated an inversion sprain and the Veteran was given crutches and advised to "RICE" the ankle. In a February 2009 note the Veteran reported that he twisted his ankle during service and has had pain in the ankle ever since. The examiner stated that given the results of the current examination and review of the claims file, it is at least as likely as not that the Veteran's left ankle gout and degenerative joint disease occurred during his time in service. Here a second opinion for left ankle degenerative joint disease was rendered and is contrary to the opinion above. The same examiner opined that the Veteran's left ankle degenerative joint disease was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale for the opinion was that that the claims file is positive for the left ankle on December 1989 and other dates in during his second period of service, and post service in October 2018 and July 2020. Diagnoses of left ankle gout and degenerative joint disease, confirmed on imaging, were provided during the compensation examination prior to the Veteran being released from active duty in August 2010. X-rays of September 2004 and August 2010 indicate changes based on old trauma. The note in December 1989 indicated an inversion sprain and the Veteran was given crutches and advised to "RICE" the ankle. The examiner noted there was no continuation of treatment after the ankle injury in 1989 and no notes of suspected degenerative joint disease at that time. In February 2009, the Veteran reported that he twisted his ankle during service and has had pain in the ankle ever since. The degenerative joint disease in the left ankle was not documented until September 2004. The examiner noted that given the results the current examination and review of the claims file, it is less likely than not that the Veteran's left ankle degenerative joint disease occurred during his first period of honorable service (July 1987 to March 1992). In a December 2020 addendum opinion, the examiner clarified the opinion and noted that the Veteran's left ankle degenerative joint disease was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the degenerative joint disease in the left ankle was not documented until September 2004. Give the results of the current examination and review of the claims file, it is less likely than not that the Veteran's left ankle degenerative joint disease occurred during his first period of honorable service (July 1987 to March 1992). The examiner further reasoned that the inversion sprain with mild swelling and tenderness of the lateral malleolus that occurred during the first period of service cannot/or did not lead to arthritis in the left ankle. The Board notes that the VA-contract examiner has rendered opposing opinions for the Veteran left ankle disorder with supporting rationales for each. In the December 2020 addendum opinion, the examiner supported the opinion that does not establish a nexus which emphasized the Veteran's degenerative joint disease of the left ankle was not documented until September 2004. However, in the negative nexus opinion and in the December 2020 addendum opinion, the examiner did not consider that the September 2004 radiologic examination report references to a differential of the left ankle from sequela of previous trauma. Thus, the negative nexus opinion and the December 2020 addendum opinion are accorded little probative value in that regard. The Board finds the favorable nexus opinion is more persuasive in this instance because the Veteran's statements that he twisted his ankle during service and has had pain in the ankle ever since is credible and consistent with the circumstances of his service and the evidence of record, including the September 2004 radiologic examination report. The Board is of the opinion that the opposing opinions place the evidence in at least relative equipoise, and the benefit of the doubt is resolved in favor of the Veteran. Therefore, service connection for left ankle degenerative joint disease is granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Young, 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.