ANKLE IMPAIRMENT OF

STEVEN D. REISS · 2026 · Case ID: A26020323

GRANTED

Summary

The Veteran served in the United States Army from May 1973 to May 1976, receiving an honorable discharge, and again from July 1976 to September 1978, which was determined to be dishonorable for VA purposes. The Veteran appealed the March 2018 denial of service connection for a left ankle disability and a right thumb disability, electing the Hearing docket. The Board reviewed evidence of record at the time of the October 2019 agency of original jurisdiction decision and evidence submitted at a June 2024 hearing. The Veteran provided testimony regarding in-service injuries to his left ankle and right thumb, and stated his left ankle disability worsened during service. The Board found new and relevant evidence was presented for both claims. For the left ankle, the enlistment examination noted a pre-service history of ankle surgery, but service treatment records documented left ankle pain and a post-operative syndrome diagnosis with limping in August 1977, suggesting aggravation during service. Despite the second service period being dishonorable, the Board found the evidence persuasively suggested ongoing aggravation prior to the end of the first service period, granting service connection. For the right thumb, while service records were silent on the reported in-service injury and surgery, a July 1978 separation examination noted a history of right thumb internal repair. The Board resolved the benefit of the doubt in the Veteran's favor due to incomplete records regarding the timing of the surgery, granting service connection. Service connection for both the left ankle and right thumb disabilities is granted.

Rationale

New and relevant evidence presented for readjudication; Pre-existing ankle condition noted at entry; Evidence of aggravation during service (pain, limping, post-operative syndrome); Benefit of the doubt applied due to incomplete records regarding timing of aggravation

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

191112-47411

Full Decision Text

Citation Nr: A26020323
Decision Date: 03/06/26 Archive Date: 03/06/26

DOCKET NO. 191112-47411
DATE: March 6, 2026

ORDER

Readjudication of the claim for service connection for a left ankle disability is granted.

Readjudication of the claim for service connection for a right thumb disability is granted.

Service connection for a left ankle disability is granted.

Service connection for a right thumb disability is granted.

FINDINGS OF FACT

1. New and relevant evidence has been received since the March 2018 denial that is relevant to the issues of entitlement to service connection for a left ankle disability and a right thumb disability.

2. The Veteran's left ankle disability, which was noted at entry, underwent a permanent increase in severity during service.

3. The Veteran's right thumb disability had its onset during the Veteran's first period of active service.

CONCLUSIONS OF LAW

1. The criteria for readjudication of the claim for service connection for a left ankle disability have been met. 38 C.F.R. § 3.156.

2. The criteria for readjudication of the claim for service connection for a right thumb disability have been met. 38 C.F.R. § 3.156.

3. The criteria for entitlement to service connection for a left ankle disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1132, 1153, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306.

4. The criteria for entitlement to service connection for a right thumb disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from May 1973 to May 1976 in the United States Army that resulted in an honorable discharge. The Veteran also had service from July 1976 to September 1978 in the United States Army that has been determined to be dishonorable for VA purposes.

On his November 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held in June 2024.

Therefore, the Board may only consider the evidence of record at the time of notice of the October 2019 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

1. Readjudication of the claim for service connection for a left ankle disability is granted.

2. Readjudication of the claim for service connection for a right thumb disability is granted.

The Veteran's claim for service connection for a left ankle disability and for a right thumb disability were denied by a March 2018 rating decision. That decision is final.

The Veteran filed a supplemental claim in September 2019 to readjudicate the claims. 38 C.F.R. § 3.2501. With this claims, he explained that he had not received notice of the VA examination that had been scheduled prior to the March 2018 rating decision and that had been the basis of the original denials of service connection. He has also since reported that his left ankle disability was aggravated by his service and provided testimony as to the times in service when he injured his left ankle and his right thumb.

The Board finds that the newly submitted evidence tends to prove or disprove the Veteran's claims by way of pertinent testimony and statements that have been associated with the record. 38 C.F.R. § 3.2501(a)(1). The Board finds that new and relevant evidence has been presented and readjudication of the claim for service connection for a left ankle disability is warranted.

3. Service connection for a left ankle disability is granted.

Service connection may be granted for a disability resulting from a disease or injury
original denials of service connection. He has also since reported that his left ankle disability was aggravated by his service and provided testimony as to the times in service when he injured his left ankle and his right thumb.

3. Service connection for a left ankle disability is granted.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious and manifest) evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304 (b). According to 38 C.F.R. § 3.304 (b), the term "noted" denotes only such conditions that are recorded in examination reports. A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304 (b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994).

A preexisting injury or disease will be considered to have been aggravated by active military, naval, air, or space service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306.

In this case, the Board finds that the Veteran's left ankle disability, which was noted at entry, underwent a permanent worsening during service.

First, the Board finds that the Veteran has functional impairment of his left ankle. He testified that he has to wear a left ankle brace all the time due to instability of his ankle. Wait v. Wilkie, 33 Vet. App. 8, 16 (2020) ("the rating schedule may serve as a proxy for determining whether certain manifestations may impair earning capacity").

Next, the Board notes that on March 1973 enlistment examination, the Veteran was noted to have had a history of an operation to his left ankle. This evidences demonstrates that he had a left ankle disability prior to service. As such, there is no presumption of soundness at service entry with respect to this condition. 38 U.S.C. §1111; see also Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004); Crowe, supra.

If a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service aggravation of that disorder. Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a).

The Veteran bears the burden of showing that the preexisting condition worsened in service.
. Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a).

The Veteran bears the burden of showing that the preexisting condition worsened in service. See Wagner v. Principi, 370 F.3d 1089 (Fed.Cir.2004). Until the Veteran shows an increase in disability occurred in service, the presumption of aggravation does not attach and, thus, does not shift the burden of rebuttal to the Secretary. Once the presumption has been established, the burden shifts to the Government to show by clear and unmistakable evidence that the increase in disability was a result of the natural progress of the disease. Id.; see also Horn v. Shinseki, 25 Vet. App. 231 (2011).

To that point, the Board notes that the service treatment records document left ankle pain. In August 1977, the Veteran was seen for foot pain and limping secondary to a previous left foot operation. The Board also notes here that this date is during the Veteran's second period of service which has been determined to be dishonorable. Therefore, he cannot be awarded service connection for an injury that occurred during this period of service. 38 U.S.C. § 3.12.

However, the Board notes that the August 1977 treatment record diagnosed the Veteran with "post-operative syndrome." This record also noted that he was limping. These findings do not support the conclusion that he re-injured his left ankle only during this second period of service. Rather, it persuasively suggests that his left ankle pain had been consistently aggravated, to include prior to the end of his first period of service in May 1976. Certainly the Veteran has testified that he experienced left ankle pain during both periods of service. In fact, the July 1978 separation examination noted ongoing left ankle pain. The Board notes that there was no separation examination conducted after his first period of service, which was just two months prior to entry into his second period of service. Therefore, the Board can only surmise that the Veteran did experience ongoing left ankle pain during his first period of active service. Therefore, the Board finds that the disability underwent a permanent increase in severity during service.

Because the competent and credible evidence supports the claim, service connection for a left ankle disability is warranted. 38 U.S.C. § 5107 (b), See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces).

4. Service connection for a right thumb disability is granted.

The Board also finds that the weight of the credible evidence favors the Veteran with this claim as well, and service connection for a right thumb disability is warranted.

First, the Board finds that the Veteran has functional impairment of his right thumb. He has stated that he cannot make a fist with his right hand, and has trouble gripping with his thumb, ever since the in-service injury. See Wait, supra.

A review of the service treatment records reflects that the Veteran did not report any injury to the right thumb at the time of his March 1973 enlistment examination.

The service treatment records are silent for the right thumb injury that the Veteran reports. The Veteran reports that while in service, he injured his right thumb while playing basketball and underwent surgery.

The Board notes, however, that there is a notation on his July 1978 separation examination that he has a history of right thumb internal repair. While the date of this surgery was not noted, it must have occurred during his service.

That the records are incomplete and do not record whether this surgery occurred during his first or second period of active service should not be
, supra.

A review of the service treatment records reflects that the Veteran did not report any injury to the right thumb at the time of his March 1973 enlistment examination.

That the records are incomplete and do not record whether this surgery occurred during his first or second period of active service should not be held against that Veteran. Rather, the Board must resolve the benefit of the doubt in his favor. Therefore, service connection for a right thumb disability is granted. See Lynch, supra; see Flynn, supra.

STEVEN D. REISS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Erdheim, 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.

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