Citation Nr: 22017199 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 14-17 935 DATE: March 24, 2022 ORDER Entitlement to service connection for a left ankle disability is granted. FINDING OF FACT The Veteran's left ankle disability is proximately related to his service-connected left hip impairment. CONCLUSION OF LAW The criteria for service connection for a left ankle disability as secondary to the service-connected disability of left hip impairment are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from July 1973 to July 1976. This appeal stems from a December 2012 rating decision denying the Veteran's claims. He appealed, and the Board of Veterans' Appeals (Board) issued a January 2016 decision which reopened and remanded the Veteran's claims for service connection for a left hip and low back conditions and remanded his claim for service connection for a left ankle condition. Thereafter, in a September 2018 decision, the Board denied these three service connection claims, and that decision was appealed by the Veteran to the United States Court of Appeals for Veterans Claims (CAVC/Court). In September 2019, the Court issued an Order granting a Joint Motion for Remand (JMR), in which the parties agreed that the Board had erred in failing to address the Veteran's July 1997 hearing testimony, an August 2018 Informal Hearing Presentation, and the Veteran's lay statements. As a result of the JMR, the Board issued an additional remand in September 2020 directing that the Veteran be examined by a "physician with sufficient expertise" who had not previously evaluated the nature and etiology of his claimed left hip disability. At that time, the Board also remanded the claims for low back and left ankle disabilities, as they are intertwined with his left hip claim. In January 2021 the Board remanded the claim as the examiner was not a physician, which was specified in the remand directives and the examiner failed to address key directives in the September 2020 remand concerning the Veteran's contentions and a 1995 medical opinion concerning the shortening of the Veteran's left leg. During the pendency of the appeal the Veteran was granted service connection for left hip limitation of flexion, left hip impairment, lumbar strain, left hip surgical scar, left leg discrepancy, and left hip limitation of extension in the September 2021 rating decision based on the August 2021 VA examinations. Accordingly, the only issue present before the Board is entitlement to service connection for a left ankle disability, to include as secondary to a service-connected disability for left hip impairment. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The case has now returned to the Board for adjudication. As the Veteran is asserting service connection for his left ankle strain on a secondary basis as related to his service-connected left hip impairment, the Board will limit its analysis accordingly. Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Aggravation for purposes of 38 C.F.R. § 3.310(b) does not require that there be "permanent worsening" of a non-service-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability, any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). Here, there is no question that the Veteran has a current diagnosis of left ankle strain. See March 2016 VA examination. The Veteran is also service-connected for left hip impairment. The Board further notes the March 2016 VA examiner opined that the Veteran's "1.3 cm left leg length discrepancy, which is the result of his left hip condition, does aggravate the left ankle condition." While this opinion is short, the Board observes it was based on examination of the Veteran, the Veteran's record, and included consideration of the Veteran's history and lay statements. As such, the Board finds it to be based upon an accurate understanding of the nature and history of the disability in question. Therefore, the opinion is persuasive evidence in support of the claim. Moreover, the Board previously found in September 2018 that this opinion was entitled to great probative value, but denied the claim in pertinent part because service connection was not in effect for the left hip. The Board acknowledges the unfavorable nexus opinion from the December 2021 VA examiner. However, as that examiner rendered a negative conclusion without consideration of the conceded current disability, positive nexus opinion referenced above, or any lay statements of record, it is not probative evidence. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate or incomplete factual premise is not probative); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that a VA examination is inadequate if it does not consider all the relevant evidence of record, including lay statements). The Board further notes that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. An approximate balance of the evidence includes but is not limited to equipoise. Lynch v. McDonough, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). Evidence is not in "approximate balance" or "nearly equal" when the evidence persuasively favors one side or the other. Id. In light of the foregoing, the Board finds that the evidence of record reflects the Veteran's left ankle disability is proximately related to his service-connected left hip impairment, and service connection is granted. John Kitlas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.