ANKLE IMPAIRMENT OF

CAROLINE B. FLEMING · 2026 · Case ID: A26030284

MIXED

Summary

The veteran, who served from July 1986 to September 1991, appeals the denial of service connection for right ankle strain and an acquired psychiatric disability. The Board granted service connection for the right ankle strain, finding the evidence sufficient to decide the claim in the veteran's favor. The Board noted that while the VA examiner opined less likely than not service-related, this opinion was given no probative weight due to its failure to consider credible lay evidence and the illegible service treatment records. The veteran's credible testimony regarding an in-service ankle injury during a training exercise, which caused persistent pain and instability, along with service treatment records noting a right ankle complaint, was sufficient to establish service connection, with reasonable doubt resolved in the veteran's favor. The claim for an acquired psychiatric disability was remanded. The Board found that the VA failed to provide an adequate examination and opinion regarding the veteran's current psychiatric condition, particularly in light of his credible testimony about a sexual assault during service and subsequent in-service treatment for alcohol abuse. The remand instructions require a psychiatric examination to diagnose any acquired psychiatric disability, opine on its relation to service, and specifically address whether the claimed personal assault occurred in service and if any resulting PTSD is related to it. The examiner must consider all evidence, including the veteran's testimony and treatment records.

Rationale

Current diagnosis of right ankle strain favorably found by AOJ.; Qualifying in-service injury noted in STRs.; Veteran's lay testimony regarding in-service injury, pain, and instability is credible.; VA examiner opinions were given no probative weight due to failure to consider lay evidence and illegible STRs.; Evidence is at least evenly balanced, warranting benefit of the doubt.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210607-164341

Full Decision Text

Citation Nr: A26030284
Decision Date: 04/02/26 Archive Date: 04/02/26

DOCKET NO. 210607-164341
DATE: April 2, 2026

ORDER

Entitlement to service connection for right ankle strain is granted.

REMANDED

Entitlement to service connection for an acquired psychiatric disability is remanded.

FINDING OF FACT

The evidence is at least evenly balanced as to whether the Veteran's right ankle strain had its onset in service.

CONCLUSION OF LAW

With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right ankle strain have been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. § 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1986 to September 1991. The Board appreciates his service to our country, and the sacrifices it entailed.

This case comes before the Board of Veterans' Appeals (Board) from a May 2021 rating decision by the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In that decision, the AOJ denied entitlement to service connection for right ankle strain and denied service connection for an acquired psychiatric disability.

In the June 7, 2021, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on July 2, 2024.

Therefore, the Board may only consider the evidence of record at the time of the May 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran or 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.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claim for an acquired psychiatric disability, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii).

1. Entitlement to service connection for right ankle strain is granted.

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

The AOJ, in the May 2021 rating decision, favorably found that the Veteran had a diagnosis of right ankle strain. The current disability requirement has thus been met.

The AOJ, in the May 2021 rating decision, also favorably found that the Veteran had a qualifying injury during service with service treatment records (STRs) containing a notation of right ankle complaint during service. Therefore, the in-service injury element has been met.

The remaining issue is thus whether there is a relationship between the current right ankle strain and the in-service right ankle complaint.

In the March 2021 VA examination, the Veteran reported he began having symptoms of right ankle strain, to include pain, during service. The Veteran reported that he first began having issues with his right ankle in 1987 with pain onset following a training exercise. Further, the Veteran reported he rolled his ankle during service. Moreover, the Veteran reported that his daily military duties exacerbated his right ankle pain. The Board finds the Veteran competent to report symptoms of pain during service and his statements in this regard are credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).

In the March 2021 VA opinion, the clinician opined that it was less likely than not that the Veteran's right ankle strain was related to service. The clinician stated that the Veteran's STRs did not contain records indicating a right ankle condition during service. Thus, the clinician concluded it was less likely than not that the Veteran's right ankle strain had its onset in or was due to service. As the clinician did not consider either the lay evidence of record or the STRs documenting a right ankle complaint or provide a reason for his rationale, the Board assigns this opinion no probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning")

In an April 2021 VA addendum opinion, the clinician again found that it was less likely than not that the Veteran's right ankle strain was related to service. The clinician opined that while the Veteran's STRs may note a right ankle condition, "the word ankle appears to be crossed out" and most of the Veteran's STR are illegible. Thus, the clinician stated there was not enough evidence to establish nexus. However, as with the initial opinion, the clinician did not consider the credible lay evidence provided by the Veteran during his March 2021 VA examination. Thus, the Board assigns this opinion no probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

In his July 2024 hearing, the Veteran reported that during a training exercise he injured his right ankle while rappelling down a cliff and that his right ankle injury was severe enough that he needed to be transported back to base camp. Following this accident the Veteran wore a cage brace and used crutches. Importantly, the Veteran reported that following his right ankle injury he continued to have pain in his right ankle consistently, with instability developing over time, and this pain continued to the present. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).

For the following reasons, the Board finds that entitlement to service connection for right ankle strain is warranted.

The AOJ favorably found that the Veteran had a current diagnosis of right ankle strain and that he had a qualifying injury during his period of service. Despite the notation on his entrance examination that he had sprained his ankle in 1981, prior to service, the Veteran was not found to have any right ankle disability at the time of his entry into service in 1986. While the VA clinician stated that the Veteran's STRs did not contain a notation of right ankle injury during service, the Veteran is competent to report an injury during service. He did so in his March 2021 VA examination and in his July 2024 hearing. There, the Veteran reported he had a right ankle injury that caused symptoms to include pain that have continued to the present. The Board finds the Veteran's statements in this regard credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).

Thus, while the Board could remand the claim for another medical opinion, such action could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Here, the evidence is sufficient to decide the claim. Given the competent, credible statements of the Veteran supported by the STRs and post service treatment records, the evidence is at least evenly balanced as to whether the Veteran's right ankle strain had its onset in service following injury. As the reasonable doubt must be resolved in favor of the Veteran, entitlement to service connection for right ankle strain is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. To the extent that service connection is being granted based on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

This appeal is granted.

REASONS FOR REMAND

1. Entitlement to service connection for an acquired psychiatric disorder is remanded.

In the May 2021 rating decision, the AOJ favorably found that the Veteran was admitted to treatment for alcohol dependency during service and then noted he was in remission at discharge.

In his July 2024 hearing, the Veteran reported that during his service he was sexually assaulted by his fellow servicemembers in a hazing ritual. Following this attack, he began drinking to cope with his feelings. The Veteran reported that he went to rehab during service. He reported that he has been in Alcoholics Anonymous for the past thirty-six years. Moreover, the Veteran reported using sleep medications and attending therapy to help with his symptoms.

Unfortunately, the VA did not provide the Veteran with an examination to determine if he currently has a diagnosis for any acquired psychiatric disability, nor render an adequate opinion on the nature and etiology of any identified acquired psychiatric disabilities and whether they were related to his service, to include his in-service treatment for alcohol abuse.

The failure to?provide?the Veteran a VA examination and?opinion?in these circumstances is a pre-decisional duty to?assist?error warranting?remand?for an examination.?McLendon v. Nicholson,?20?Vet. App.?79?(2006).???

The matters are REMANDED for the following action:??

Schedule the Veteran for a psychiatric examination to determine whether the Veteran has a diagnosis of an acquired psychiatric disability.

Obtain an opinion?as to whether it is at least as likely as not that?any psychiatric disability identified in the examination is related to or had?its?onset in service.??

If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor.

The examiner must opine whether the evidence of record, including the Veteran's lay statements and service records, to include his testimony at the July 2024 hearing and the documented in-service treatment for alcohol abuse, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran's active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault.

If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran's credible description of the in-service personal assault he experienced.

The?examiner?must?specifically consider and discuss all evidence of record, including the Veteran's July 2024 hearing testimony and the in-service treatment for alcohol abuse.

A complete rationale should?accompany?any opinion.??

Caroline B. Fleming

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J.D. Strain, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not preced
, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran's credible description of the in-service personal assault he experienced.