Citation Nr: 22014688 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 18-47 454 DATE: March 14, 2022 ORDER Entitlement to service connection for a left ankle disability is granted. FINDING OF FACT The Veteran's left ankle disability is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left ankle disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1981 to December 1981 and from October 1985 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a March 2021 Board hearing. A copy of the transcript has been associated with the file. This matter was previously before the Board in August 2021, at which time it was remanded for additional development. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 382 F.3d 1163, 1167 (Fed. Cir. 2004)). After careful consideration of the evidence, any reasonable doubt remaining, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. If the evidence is not in approximate balance or nearly equal, the claim is to be denied. The United States Court of Appeals for the Federal Circuit clarified in Lynch v. McDonough that the proper standard of review is whether the factors are in an "approximate balance." Lynch v. McDonough, 999 F.3d 1391 (2021). Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance or "nearly equal" and does not require the evidence to be in exact equipoise. Id. Entitlement to service connection for a left ankle disability is granted. The Veteran contends that his current left ankle disability is a result of service. Specifically, he contends the stress fracture in service is the only injury he has sustained on his left ankle, with continual pain since service. Regarding the first element of service connection, a current disability, the Veteran has diagnoses of posterior tibial tendonitis, posterior tibial tendon dysfunction, deformity of medial malleolus, and bilateral pes planus. Moreover, the Veteran competently and credibly testified to a presence of continued ankle pain since service. Thus, the record establishes a current disability. Regarding the second element of service connection, an in-service event or injury, the Board notes the Veteran is competent to report a history of broken bones. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, there is consistent lay statements and testimony that the Veteran fractured his left ankle during service. Additionally, numerous lay statements were provided by fellow service members documenting the Veteran sustained an injury to his left ankle, requiring a cast and crutches. Moreover, the Veteran provided photographs documenting his left ankle in a cast standing in front of his barracks, dated "around Christmas 1985," and a photograph from January 1986 documenting the Veteran was still in a left ankle cast. Thus, the Board finds the first and second elements of service connection have been met. Regarding the third and final element of service connection, nexus, the Veteran was provided a VA Ankle Conditions examination in May 2017. The examiner noted a 1985/86 history of left ankle fracture and a 2016 diagnosis of posterior tibial tendonitis. The examiner opined the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the examiner noted that although the records are not available, there are photographs and buddy statements to support the history of a fracture in service. A previous injury is also supported by current X-rays. However, the injury, if it was indeed a fracture, would have been a "hair line" fracture or minor non-displaced fracture. If the fracture would have been anything significant, it would have required open reduction and internal fixation (ORIF). The Veteran reported initial stiffness, but no further problems. Therefore, it would not be considered a causal factor in developing an acute onset of posterior tibial tendonitis 30 years later. Pursuant to the August 2021 Board remand, the Veteran was provided a VA Ankle Examination in December 2021. A 2017 diagnosis of posterior tibial tenosynovitis with tendonitis and a 1986 diagnosis of a left ankle fracture were noted. The examiner opined that the Veteran's left ankle disability was less likely than not incurred in or caused by service. For rationale, the examiner noted that X-ray imaging and MRI are not indicative of sequela from the prior ankle fracture and a healed ankle fracture without sequela is less likely than not to cause posterior tibial tenosynovitis with tendonitis. The Veteran's current symptoms are more likely than not related to the posterior tibial tenosynovitis with tendonitis. Posterior tibial tendon dysfunction can occur when the posterior tendon is inflamed and can be caused by overuse or by injury, that may subsequently lead to pes planus. During the examination, the Veteran reported that when standing he must put weight on the right side predominately, which is difficult due to a right hip issue. The condition makes it difficult to stand from a low seated position and he can only walk about 500 yards, and then must stop due to ankle pain. Although the May 2017 and August 2021 VA examiners found no nexus to service, there is affirmative evidence linking the Veteran's left ankle disability to service. A May 2017 ankle MRI noted deformity of the medial malleolus that may be related to remote trauma. Additionally, a May 2018 primary care note reported the Veteran's ankle disability was secondary to the 1986 fracture. Social Security Administration (SSA) records show a diagnosis of severe left ankle disability, along with other orthopedic conditions, that prevent the Veteran from working. A disabled determination was rendered, with an onset date of November 2018. The examiner found that the Veteran's statements regarding his symptoms were fully consistent with the record, noting that the Veteran has osteoarthritis, tendon dysfunction, and arthrosis that could reasonably produce the symptoms he described. The Veteran stated he has problems with walking, standing, running, and can walk only about 50 yards before needing a break. The examiner found this was consistent with the medical evidence. The most probative evidence as to continued symptomatology is the Veteran's own competent and credible testimony as to his symptoms. During his March 2021 Board hearing, the Veteran testified that he was treated in service for a stress fracture to the left ankle, was placed in a cast for 6-8 weeks, and assigned to light duty. Following the removal of the cast, the Veteran testified to continual daily tenderness and pain in the ankle until he separated from service in 1988. He testified he sought treatment for the left ankle approximately two years after leaving service in 1990-1991 due to continual pain and has had sporadic treatment for the ankle since that time. He testified to receiving cortisone shots in the ankle and custom orthotics, before losing his job with medical insurance, at which time he could not afford to seek additional treatment. From 2007 to present, he reported sporadic treatment, with pain from the initial injury progressing over the years. The Board finds that the Veteran is competent to report the symptoms he experienced during and since service and finds his testimony credible. Additionally, the record documents ongoing treatment for left ankle pain. A March 2016 treatment record noted the Veteran had a left medial ankle fracture in 1987, with new ankle pain in the same area since March. February 2017 treatment records noted a history of left medial ankle pain and noted persistent medial ankle swelling. A diagnosis of left achilles tendinitis was noted. The Veteran was also reported to use a cane and CAM walker for assistance with left ankle pain. An April 2017 VA treatment record noted the Veteran was seen for pain in the medial left ankle that was ongoing since December 2016. He reported he has tried 3 pairs of custom orthotics but could not tolerate any of them on the left foot. He also has tried physical therapy, without significant benefit. A December 2018 orthopedic treatment record noted the Veteran was seen for left hip and left ankle pain. The Veteran reported he stopped working since the last visit because of the pain. The Veteran was wearing a custom leather ankle brace during the visit. A podiatry treatment record from March 2020 noted the Veteran was seen for medial left ankle pain that has been ongoing since December of 2016. The use of an Arizona brace was reported to assist with ankle symptoms. An assessment of posterior tibial tendon dysfunction left, bilateral pes planus, and equinus bilateral were noted. (Continued on the next page) The Board finds that the evidence is at least in equipoise as to whether the Veteran's current left ankle disability is the result of his reported in-service left ankle injury. Resolving reasonable doubt in favor of the Veteran, the Board concludes that the criteria for entitlement to service connection for a left ankle disability is granted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.