Citation Nr: 23016294 Decision Date: 03/17/23 Archive Date: 03/17/23 DOCKET NO. 16-11 298A DATE: March 17, 2023 ORDER Service connection for a right ankle disability (claimed as residuals of a ruptured right Achilles tendon) is granted. FINDING OF FACT The evidence is in approximate balance on whether the Veteran's right ankle disability is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a right ankle disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from May 1996 to July 2006. The Veteran also attended the Air Force Academy prior to his active service. This matter is before the Board of Veteran Appeals (Board) on appeal from a December 2013 rating decision by a Regional Office (RO) for the Department of Veterans Affairs (VA) which denied service connection for the residuals of a ruptured right Achilles tendon. The Board remanded this appeal most recently in December 2018 for further development, including obtaining VA examinations and medical opinions for the Veteran's disability claim on appeal. As set forth more fully below, substantial compliance with the Board's December 2018 Remand directives has occurred. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified before the undersigned at a hearing held in September 2022; a transcript of that hearing is of record. Service connection for a right ankle disability (claimed as residuals of a ruptured right Achilles tendon). The Veteran provided medical documentation of an injury sustained while he was a cadet at the United States Air Force Academy. This medical documentation indicates that he was injured while playing rugby in 1995. The Veteran contends that the injury sustained while in service caused his Achilles tendon to rupture in 2012. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service as a cadet at the United States Military, Air Force, or Coast Guard Academy, or as a midshipman at the United States Naval Academy, is active duty. 38 U.S.C. § 101 (21)(D). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310 (a), (b). After careful review, the Board finds that the evidence is in approximate balance on whether service connection for a right ankle disability is warranted. The Veteran has a current disability as noted by VA examinations and the private medical opinion. Service treatment records include an October 1995 record noting R plantar tenderness right calf and diagnosed right plantaris strain. Another October 1995 referred to right achilles tenderness. The Veteran underwent a VA examination in October 2013 and the examiner opined that the ruptured right Achilles tendon injury was less likely than not incurred or caused by service. The examiner noted in his review of the relevant medical history that the Veteran sustained an injury to his heel in October 1998. The examiner also considered a medical record from the 1995 rugby injury noted above and indicated that this record was provided to him by the Veteran. The examiner indicated this was a private medical record, when it was a part of the Veteran's Service Treatment Records (STRs) from his time at the Air Force Academy. The examiner indicated the 1995 rugby injury was an injury to the right calf and there was no clear documentation of an Achilles tendon injury at that time. However, he failed to discuss the significance of the snapping sensation described by the Veteran and that he was seen after the injury for Achilles strengthening mentioned by the 1995 medical record. Finally, the examiner indicated the Veteran did not see a physician for the 1995 injury and was seen by a physical therapist. The Board notes the 1995 record shows he was seen by an orthopedic surgeon for a physical therapy consultation. In January 2020, the Veteran was afforded an additional VA examination and medical opinion. The examiner also opined that the ruptured right Achilles tendon injury was less likely than not incurred or caused by service. The VA examiner noted that the Veteran developed right calf pain while playing rugby in October 1995 while in the Air Force Academy and that "the plantaris strain was successfully treated with physical therapy and he was able to resume playing rugby and complete 20 years active service in the Air force without any physical restrictions or permanent profiles." Additionally, the VA examiner acknowledged the 2012 injury and stated the following: "according to the medical literature (Up-to-Date), risk factors associated with Achilles tendinopathy and rupture include being a competitive athlete, male gender, age between 30 to 40, and obesity." Lastly the VA examiner opined that it is also less likely than not that Veteran's Achilles tendon tear was caused by and/or related to the 1998 contusion to his right heel or aggravated by any other service connected disability. In September 2022, the Veteran testified before the undersigned that he had a right ankle injury during service in 1995, and then a subsequent right ankle injury later in service and that the result of these injuries has left the Veteran with continuous pain since service as well as diminished strength in his right ankle. In October 2022, the Veteran was provided a private medical examination and opinion by a board specified doctor. First, the doctor noted the Veteran's initial injury while on active duty in 1995 and the Achilles rupture in 2012. The doctor indicated that both STRs and the Veteran's post-service medical treatment records were reviewed in forming the opinion. An examination and x-rays were also performed. The doctor concluded that based on the Veteran's lay statements and a review of the referenced medical records, it is at least as likely as not that the 1995 Air Force Academy injury caused the Veteran's right achilles tendon to be weakened and subject to future injury, and that the 2012 rupture and surgery were directly related to the 1995 injury. The Board has considered the Veteran's various VA medical opinions and lay statements, and finds that the evidence is in approximate balance on whether the Veteran's right ankle disability is related to service. There is medical evidence indicating that the Veteran's right ankle disability is not related to service, as shown by the October 2013 and January 2020 VA medical opinions. However, the Board notes that there is also medical evidence indicating that the Veteran's right ankle disability is related to service as shown by the private October 2022 medical opinion. "[I]f the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Significantly, the 2013 opinion did not consider the appellant's service at the U.S. Air Force Academy as active duty. As noted above, however, the applicable law provides that service as a cadet at the United States Air Force Academy is active duty for purposes of VA compensation. 38 U.S.C. § 101 (21)(D); 38 C.F.R. § 3.6 (b)(4). Thus, the Board finds the private October 2022 medical opinion to be highly probative, which stated that the Veteran's right ankle disability is related to service. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight to be attached to medical opinions are within the province of the Board). In sum, the Board finds that the evidence is in approximate balance on whether the Veteran's right ankle disability is related to service. Further, the Board finds the private October 2022 medical opinion, stating the Veteran's right ankle disability is related to service, more probative than the October 2013 and January 2020 VA medical opinions. Thus, service connection is warranted. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.