Citation Nr: 22012174 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 09-32 603 DATE: March 2, 2022 ORDER Entitlement to service connection for a left ankle disability is granted. REMANDED Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's left ankle disability onset during a period of ACDUTRA. CONCLUSION OF LAW The criteria for service connection for a left ankle disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from May 1986 to September 1986, and from June 1989 to July 1989. This appeal to the Board of Veteran's Appeals (Board) arose from a November 2008 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). During the current appeal, and specifically in June 2014, November 2016, November 2018, and July 2021, the Board remanded this appeal for further evidentiary development Service Connection Left Ankle Disability The Veteran seeks service connection for a left ankle disability. He has been diagnosed with left ankle os trigonum syndrome. A veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in service injury or event; and (3) a nexus between the current disability and the in service injury or event. 38 C.F.R. §3.303(a). When a claim for service connection is based on a period of ACDUTRA, there must be evidence that the individual became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Regarding INACDUTRA, there must be evidence that the individual became disabled as a result of an injury (not disease, except from an acute myocardial infarction, cardiac arrest, or a cerebrovascular accident) incurred or aggravated in the line of duty during the period of INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). Preliminarily, the Board wants to acknowledge that there are notations regarding the Veteran's left ankle during service periods that have not been verified as active duty, ACDUTRA, or INACDUTRA. The Board has remanded the claim many times in order for the Agency of Original Jurisdiction (AOJ) to verify and obtain such information. Still, the record is unclear regarding the status of certain service periods. However, as will be explained further, because the Board has found enough evidence of an in-service event regarding the Veteran's left ankle during a period of verified service (ACDUTRA), the Board will continue with review of this claim at this time. Regarding an in-service injury or event, in July 1986, the Veteran complained of pain to his Achilles tendon. The assessment provided was Achilles' tendonitis. The Veteran was provided treatment for the pain. See January 2015 Service Treatment Records (STR Medical). As to whether a nexus between the Veteran's currently diagnosed left ankle os trigonum syndrome and his service, the October 2020 VA examiner opined that it was less likely than not that the current left ankle condition was related to the in service Achilles tendonitis. The examiner explained that the Veteran's left Achilles tendon pain was not present clinically on the examination. Rather, the area of complaint was on the lateral area of the Veteran's left ankle. On that examination, the Veteran recalled that his left ankle began to bother him while he was in boot camp. He stated that he was seen in the clinic for this condition while in service. He was put on light duty for a day. The service records do show that, in June 1987, he was transferred to light duty status due to a "sprained ankle" and that his light duty status would be terminated in August 1987. See January 2015 STR- Medical. Reserve records and post-service medical records have shown continuous complaints of, and treatment for, his left ankle problems. After a thorough consideration of the evidence, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's current left ankle condition onset in his service. The July 1986 in-service left ankle complaint, and treatment for left Achilles' tendonitis, is the first episode of left ankle pain. The Board acknowledges that the evidence in this case is not explicitly clear in resolving the issue regarding the specific onset of the Veteran's left ankle disability. Significant time has been used to develop the evidentiary record in this matter in order to resolve these uncertainties. However, those uncertainties have not been resolved. Considering what has been proffered in service as well as the evidence contained in the post service treatment and examination reports and the Veteran's statements, there is enough competent evidence to raise a reasonable doubt regarding the onset of his left ankle disability. Resolving all reasonable doubt in his favor, the Board finds that a nexus has been established and that the criteria for service connection for a left ankle disability are met. Service connection for the diagnosed left ankle disability is warranted. REASONS FOR REMAND TDIU Currently, the Veteran does not meet the schedular criteria for TDIU under 38 C.F.R. §4.16(a). In this decision, however, the Board has granted service connection for a left ankle disability. Thus, the AOJ must assign a rating for that now service-connected disability and determine if the Veteran meets the schedular criteria for a TDIU rating. Further, there is plausible evidence on the record that suggests that, even though the Veteran did not meet the schedular criteria, he may have been unable to obtain substantially gainful employment due to his service-connected conditions. Thus, on remand, even if the Veteran does not meet the schedular criteria after implementing the Board's grant of service connection for a left ankle disability, the AOJ should refer the case to Director of Compensation Services for extraschedular consideration. 38 C.F.R. § 4.16(b). This matter is REMANDED for the following: 1. Effectuate the Board's grant of service connection for a left ankle disability. In so doing, assign an appropriate rating for this disability. 2. Then, if the Veteran does not meet the schedular criteria, forward this case to the Director of Compensation Services for consideration of the assignment of a TDIU due his service-connected disabilities on an extraschedular basis pursuant to the provisions of 38 C.F.R. § 4.16(b). In connection with the referral, include a full statement outlining the Veteran's service-connected disabilities, employment history, educational attainment, and all other factors having a bearing on the issue during the applicable timeframe. 3. Finally, review the record, conduct any additional development deemed necessary, and readjudicate the issue of entitlement to a TDIU. If the benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Then, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination, if scheduled, may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Middleton, Syesa T. 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.