Back to BVA DecisionsGRANTEDService Branch ARMY Special Benefit NO SPECIAL BENEFIT Docket No. 191125-49560
ANKLE IMPAIRMENT OF
MICHAEL D. LYON · 2021 · Case ID: A21020678
Summary
The Veteran, an Army and Air National Guard/Reserve member who served on active duty from May 1992 to December 1995, appeals the denial of service connection for a chronic right ankle sprain with peroneal tendon rupture and for plantar fasciitis of the right foot secondary to the ankle condition. The Board found that the evidence was in equipoise regarding the right ankle sprain's service connection. While a June 2019 VA examiner opined the condition was not aggravated by service, this opinion was based on an inaccurate factual premise regarding the timing of a motor vehicle accident, thus diminishing its probative value. The Board also considered November 2017 private treatment records showing peroneal tendonitis and a January 2017 surgery for a tear, alongside military treatment notes of a right ankle sprain following a run during active duty orders in April 2014. Resolving reasonable doubt in the Veteran's favor, service connection for the chronic right ankle sprain was granted. For the secondary claim of plantar fasciitis, the Board noted medical evaluations showing current plantar fasciitis, with a January 2017 surgery report indicating forefoot pain secondary to destabilization of the metatarsophalangeal joint, and subsequent treatment for plantar fascia pain. The Board found the chronology linked the plantar fasciitis to the service-connected ankle disability. Although a June 2019 VA examiner's opinion was again considered, its probative value was reduced due to inaccuracies. Finding the evidence in equipoise, the Board resolved doubt in the Veteran's favor and granted service connection for the plantar fasciitis as secondary to the right ankle sprain.
Rationale
Current disability diagnosed as chronic right ankle sprain, status post peroneal tendon rupture.; Evidence in equipoise regarding service connection.; Resolving reasonable doubt in Veteran's favor.
Full Decision Text
Citation Nr: A21020678 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 191125-49560 DATE: December 30, 2021 ORDER Entitlement to service connection for chronic right ankle sprain, status post peroneal tendon rupture, is granted. Entitlement to service connection for plantar fasciitis, right foot as secondary to right ankle sprain is granted. FINDINGS OF FACT 1. The evidence is at least in relative equipoise as to whether the Veteran's right ankle disability, diagnosed as chronic right ankle sprain, status post peroneal tendon rupture, is related to her period of active duty for training (ACDUTRA). 2. Resolving reasonable doubt in the Veteran's favor, her plantar fasciitis, right foot, is secondary to her right ankle sprain. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic right ankle sprain, status post peroneal tendon rupture, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for plantar fasciitis of the right foot, secondary to right ankle sprain, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1992 to December 1995, in the Air National Guard from December 2014 to April 2015, with additional service in the Air National Guard and Air Force Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the November 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In December 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310. In the context of Reserve or National Guard service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing Inactive Duty for Training (INACDUTRA). 38 U.S.C. §§ 101 (24), 106, 1131; 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Generally, no presumptions, including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless "veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). 1. Entitlement to service connection for chronic right ankle sprain, status post peroneal tendon rupture The Veteran contends that she injured her ankle during a period of ACDUTRA, resulting in her current right ankle incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Generally, no presumptions, including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless "veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). 1. Entitlement to service connection for chronic right ankle sprain, status post peroneal tendon rupture The Veteran contends that she injured her ankle during a period of ACDUTRA, resulting in her current right ankle disability. The Board concludes that the Veteran has a current disability of chronic right ankle sprain, status post peroneal tendon rupture, that began during a period of ACDUTRA. 38 U.S.C. §§ 101, 106, 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.6, 3.303(a), 3.304. November 2017 private treatment records show the Veteran was diagnosed with postsurgical changes of the peroneal retinaculum and mild tendinosis of the peroneal tendons. She underwent surgery in January 2017 following a diagnosis of peroneal tendonitis with tenosynovitis and tear of the right peroneus brevia tendon. A December 2018 VA examination diagnosed the Veteran with chronic right ankle sprain, status post peroneal tendon rupture. During periods of active duty, the Veteran was seen for complaints of right ankle pain following various injuries. Thus, the question becomes whether the current disability is related to service. The Veteran initially experienced a right ankle injury in March 2013, diagnosed as a sprain. This injury did not occur during a period of active duty. She completed physical therapy for that injury and resumed her regular activities. In April 2014, the Veteran rolled her ankle during physical training while on a period of active duty orders, and was seen by a military provider in June 2014. The provider noted a right ankle sprain, which was noted as "chronic." A July 2014 military treatment note indicated the Veteran had rolled her ankle during a run. The evidence in favor of the claim includes the December 2018 VA examination report. The examiner noted that the Veteran's condition had its onset during service, and that there was evidence of current, chronic, and continuous treatment and care for the Veteran's right ankle disability, which the examiner diagnosed as chronic ankle sprain, status post peroneal tendon rupture. The evidence against the claim includes the June 2019 VA examination, which concluded that the Veteran's condition was not aggravated by service, as she was seen in 2014 for right ankle pain, which had resolved with no further complaints. The examiner's rationale, however, was based, in part, on the examiner's belief that the Veteran's January 2017 ankle surgery was the result of a motor vehicle accident. However, treatment records indicate that the motor vehicle accident did not occur until July 2017. As the examiner's opinion is based in part on an inaccurate factual premise, the Board affords this opinion little probative weight. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Upon review of the record, the Board finds the evidence to be at least in equipoise as to whether the Veteran's chronic right ankle sprain, status post peroneal tendon rupture, arose during active service. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for chronic right ankle sprain, status post peroneal tendon rupture is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for plantar fasciitis, right foot as secondary to right ankle sprain The Veteran contends that her currently diagnosed plantar fasciitis has resulted due to her right ankle strain. Medical evaluations show the Veteran has a current disability of plantar fasciitis. Historically, the record shows that in the January 2017 surgery report, (relating to the now service connected ankle), the surgeon indicated that the Veteran was experiencing pain in the forefoot secondary to destabilization of the metatarsophalangeal joint. By May 2017, plantar fascia pain secondary to weightbearing stresses was being treated with injections, and in November 2017, medial band plantar fasciitis was identified. service connection for plantar fasciitis, right foot as secondary to right ankle sprain The Veteran contends that her currently diagnosed plantar fasciitis has resulted due to her right ankle strain. Medical evaluations show the Veteran has a current disability of plantar fasciitis. Historically, the record shows that in the January 2017 surgery report, (relating to the now service connected ankle), the surgeon indicated that the Veteran was experiencing pain in the forefoot secondary to destabilization of the metatarsophalangeal joint. By May 2017, plantar fascia pain secondary to weightbearing stresses was being treated with injections, and in November 2017, medial band plantar fasciitis was identified. The presence of plantar fasciitis also was noted in January 2017 records, as well as in an evaluation conducted in September 2019, in connection with what appears to be the Veteran's separation from her position as an Air Force Technician. Since this chronology clearly links the Veteran's right foot plantar fasciitis with her service connected ankle disability, the criteria for service connection are met. In reaching this decision, the Board notes a June 2019 VA examiner did not conclude the disability was incurred in service, but the examination report on which the opinion is based contains inaccuracies or contradictions, and does not reflect an understanding of the chronology of the condition's development. This results in a significant reduction of the opinion's probative value. In the Board's view, the evidence is at least in equipoise as to whether the Veteran's current right foot plantar fasciitis is proximately due to her service-connected right ankle disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for right foot plantar fasciitis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, 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.