Citation Nr: 1329626 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 05-06 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a bilateral ankle disorder, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Peter J. Sebekos, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his spouse. ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from June 1972 to July 1992, including service in the Southwest Asia Theater of operations from December 1990 to April 1991 during the Persian Gulf War. His service awards include a Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. This case has since been transferred to the Buffalo, New York VARO. The Veteran was previously represented in this matter by Disabled American Veterans (DAV). The Veteran testified at an RO hearing before a Decision Review Officer in November 2005. A transcript of that hearing has been associated with the claims file. The Veteran indicated on his February 2005 VA Form 9 that he wished to testify at a Board hearing. In May 2007 correspondence, he withdrew the hearing request. This case was previously remanded by the Board in November 2007 and August 2009. Subsequently, in November 2011, The issue of entitlement to service connection for lupus anticoagulant has been raised by the record, but has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. While this issue was discussed in the Joint Motion for Remand, the evidence of record suggests it is likely related to multiple conditions that have not been appealed to the Board. Since it has yet to be considered by the AOJ and it has not been properly appealed to the Board, the AOJ should consider whether service connection is warranted for lupus anticoagulant (an autoimmune disorder with unknown etiology) is warranted, and whether this issue is behind the Veteran's symptoms of ischemia necrosis, Eales disease, interstitial lung disease and his history of demyelinating lesions of the brain. FINDINGS OF FACT 1. The Veteran's active duty included service in Southwest Asia during the Persian Gulf War. 2. The Veteran's bilateral ankle disorder is due to palindromic syndrome/inflammatory arthritis (palindromic rheumatism). 3. Palindromic syndrome/inflammatory arthritis (palindromic rheumatism) is of unspecified autoimmune etiology. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a bilateral ankle disability, due to palindromic syndrome/inflammatory arthritis, of unknown autoimmune etiology, have been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Relevant Facts Service treatment reports reflect that the Veteran was treated for a right ankle sprain in May 1975. He was treated in February 1984 for a twisted left ankle. Finally, he was treated in June 1984 for a right ankle sprain with swelling and effusion. He was given a temporary physical profile at this time for two weeks with no running over two miles. The July 1992 separation examination showed normal "feet" and "lower extremities" and was absent of any findings of an ankle abnormality. Private medical records from April 2000 to July 2003 and VA medical records from November 2003 to October 2006 reflect that the Veteran was variously treated for and diagnosed with multiple ankle disabilities including: left migratory oligoarthritis; migratory arthralgias/arthritis; arthritis; polyartralgia with unclear etiology; rule out rheumatoid arthritis or other inflammatory joint disease; rheumatoid arthritis; Lyme disease; acute vasculitic syndrome involving polyarthalgias; right ankle arthritis; right ankle sprain; and polyarthritis of knees, ankles, elbows and wrist. In a July 2003 VA examination of the joints, the examiner concluded that he could not elicit any pertinent positive findings of the ankles. The examiner noted, however, that the medical history was certainly consistent with some type of rheumatic arthritic syndrome which had been well- controlled during a short period of time on Prednisone. Finally, the examiner reported that he could not give any conclusive diagnosis from the examination. An April 2004 VA outpatient treatment note reflects that the Veteran underwent a rheumatology consultation. The VA physician concluded that there was nothing in the Veteran's history or physical examination that made him think the Veteran's autoimmune disease was active. The VA physician also did not think the Veteran had rheumatoid arthritis and that most likely his arthritis was related to his systemic autoimmune disease/vasculitis. In an August 2004 VA rheumatology note, the VA physician noted that, as discussed in the last visit, the Veteran's previous diagnosis of rheumatoid arthritis was unlikely. The VA physician noted that usually rheumatoid arthritis that was associated with vasculitis was aggressive and the rheumatoid factor was positive; however, the Veteran was negative for a rheumatoid factor and there had been no evidence of previous changes of rheumatoid arthritis or active synovitis on the last evaluation. Finally, the VA physician noted that he was unable to come up with a specific name for the Veteran's autoimmune disease, but it was thought to be in remission. An October 2005 VA outpatient treatment report reflects that a VA physician found that the Veteran's complaints of pain in the joints appeared to be rheumatoid arthritis. In a December 2005 VA outpatient treatment report, the Veteran reported that the initial occurrence of his pain in the ankles was in the Middle East in 1991 and he was diagnosed with ankle pain, likely related to osteoarthritis from a traumatic episode in the lower extremities (shot wound). However, the Board notes that this opinion was based entirely upon a history provided by the Veteran. The mere recitation of a veteran's self-reported lay history does not constitute competent medical evidence of diagnosis or causality. See LeShore v. Brown, 8 Vet. App. 406 (1996). At this time, it was also noted that testing in 2004 was negative for rheumatoid factor. In a December 2005 VA examination of the joints, the Veteran's ankles were deemed to be normal, bilaterally. The examiner opined that the Veteran's intermittent joint pain was not as likely as not related to the shell fragment wound and was as likely as not related to the rheumatoid arthritis. An April 2006 VA outpatient treatment report reflects that the Veteran was diagnosed with chronic pain from rheumatoid arthritis. In a July 2006 VA outpatient treatment report, the Veteran was diagnosed with ankle pain related to osteoarthritis from a traumatic episode in New Orleans. This conclusion also appears to have been based upon the Veteran's self-reported history. Pursuant to a November 2007 Board remand, the Veteran was afforded a VA orthopedic examination in September 2008. Following a physical examination, the September 2008 VA examiner noted in his diagnosis that the ankle examination was normal. The examiner found that there was some calcification at the tip of the lateral malleolus indicative of an ankle sprain in the past but the examination did not show any evidence of instability. This examination report did not address any systemic autoimmune disease or any other related disease. Pursuant to the Board's August 2009 remand, the Veteran was afforded another VA examination in October 2009. This examiner diagnosed the Veteran with arthritis of uncharacterized autoimmune etiology, intermittent, not present on the day of examination. Thereafter, the October 2009 VA examiner opined that it was less likely as not that the Veteran's current ankle disorder had an onset during active military service. The examiner also indicated that he would have to resort to mere speculation to determine any association with any incident that occurred during his period of service, to include service in the Southwest Asia Theater of operations during the Gulf War. The examiner indicated that medical documents/physician notes in the claims file demonstrated that the Veteran's arthritis of autoimmune etiology (unspecified) existed for six months or more and had exhibited intermittent episodes of improvements or worsening over a six month period. The examiner noted that the Veteran's pain in both ankles was documented in the history he provided, as well as numerous encounters with VA, military and civilian physicians contained within the claims file. Orthopedic, podiatric and rheumatology specialists all diagnosed arthritis, variably osteoarthritis, rheumatoid arthritis or arthritis of an autoimmune etiology. However, according to the examiner, there was no X-ray evidence of osteoarthritis. The arthritis waxed, waned and wandered, and responded to Prednisone, which was most consistent with arthritis of an autoimmune etiology. This was the most frequent conclusion of physician specialists in the claims file. The examiner noted that, during the examination, the Veteran provided an oral history stating that he could recall no incident of acute trauma to his ankles during military service, and further, that his ankle pain syndrome began following his retirement from active duty while living in Germany in 1994. Therefore, according to the examiner, it was less likely as not that the Veteran's ankle disorder had an onset during his active military service. The examiner noted the Veteran's allegation of exposure to smoke and vapors from oil fires and fires wherein military chemical warfare agents were burned, and that he received injections and pills to protect him from chemical agents, therefore inferring that his ankle disorder may be associated with "Gulf War Syndrome." The examiner noted that "Gulf War Syndrome" had been studied at length and there was not a consensus as to what it exactly was comprised of and what the causes were. The Secretary of VA notably considered joint pain to be among the undiagnosed conditions that warrant a presumption of service connection. Nonetheless, the examiner indicated that he would have to resort to mere speculation to make this conclusion, absent scientific evidence. Subsequently, the Veteran was afforded another VA examination as the October 2009 examiner was not a rheumatologist as was required in the August 2009 Board remand. In April 2011, the Veteran was afforded a VA examination by a rheumatologist. The Veteran underwent X- ray examination at that time which showed minimal osteoarthritis including minimal spurring in the right ankle. In a May 2011 report, the examiner indicated that he had reviewed the claims file in depth and also indicated that the Veteran's diagnosis regarding the ankles was most likely probably palindromic syndrome/inflammatory arthritis and it was less likely to be post trauma or osteoarthritis causing the ankle pain. The examiner noted the possibility or prior ankle trauma when looking at an August 2008 X-ray but also indicated that this was not obvious on recent X- rays done. The examiner also indicated that the Veteran most likely had lupus anticoagulant which could explain a constellation of symptoms he had in the past. The lupus anticoagulation syndrome could have been behind the Veteran's presumed Eales disease. Eales disease could have been a manifestation of the lupus anticoagulant more than anything else. The Buerger disease could have realistically been a lupus anticoagulant disease as well. In a May 2011 addendum, the April 2011 VA examiner indicated that the Veteran suffered from intermittent pain in many joints, particularly the right ankle and that his ankle pain could be attributed to a known clinical diagnosis - specifically, palindromic syndrome/inflammatory arthritis. There was also a mild osteoarthritis found on the right ankle X-ray and not present on earlier X-rays which, according to the examiner, was not likely associated with the current level of intermittent pain. The examiner opined that it was less likely as not (less than 50/50 probability) that the onset of the Veteran's ankle pain occurred during his period of active service, nor was it otherwise caused by any incident that occurred during the Veteran's period of service (June 1972 to July 1992), to include any service in the Southwest Asia Theater of operations (December 1990 to April 1991) during the Gulf War. As a rationale to the above opinion, the examiner wrote that the Veteran had probable palindromic syndrome/inflammatory arthritis, which was less likely to be post-trauma of osteoarthritis causing ankle pain. There was no evidence to support the Veteran's contention that the ankle pain/diagnosis was related to injuries in the military. The Veteran's history revealed intermittent pain in multiple joints and not just in the right ankle. The most frequent diagnosis involved an autoimmune disorder, not osteoarthritis. The Veteran did not recall any direct trauma to his ankles during military service. His ankle pain began following his retirement from the military while living in Germany as a civilian. There was no evidence of onset of the Veteran's current ankle disorder while in the military and no evidence that any exposures during the Gulf War led to his palindromic syndrome/inflammatory arthritis. Analysis The Veteran contends that he is entitled to service connection for bilateral ankle disabilities, to include as due to an undiagnosed illness. Having considered all of the evidence of record, the Board finds that service connection is warranted, as the Veteran's claimed disabilities of the ankles have been related to palindromic syndrome/inflammatory arthritis - a disability of unknown pathophysiology. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). As an initial matter, the Board notes that service connection is not warranted on a direct basis in this case. While there is certainly in-service evidence of isolated incidents of bilateral ankle sprains, evaluation of the feet and lower extremities at the time of separation was deemed to be normal. In addition, the Veteran himself has asserted that his claimed condition began in 1994 - after his separation from active duty. Therefore, without evidence of a chronic disability in service, or medical or lay evidence of chronic symptomatology associated with a diagnosis such as arthritis following separation from active duty, service connection on a direct basis cannot be established. However, because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016. See 76 Fed. Reg. 81834 (Dec. 29, 2011) (to be codified at 38 C.F.R. § 3.317(a)(1)). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non- medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). While some of the medical examiners in this case have been unable to provide a medical diagnosis for the Veteran's bilateral ankle disorder, the most recent April 2011 VA examiner, a rheumatologist specializing in the Veteran's medical disorder, diagnosed the Veteran with palindromic syndrome/inflammatory arthritis. Therefore, since there is evidence of record attributing the Veteran's disability to a known diagnosis, it would be improper to consider this disability as "undiagnosed." Nonetheless, service connection may also be established for a medically unexplained chronic multisymptom illness. This is an illness defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). As indicated by the evidence of record, palindromic syndrome/inflammatory arthritis, or palindromic rheumatism, is a type of an autoimmune disorder that leads to sudden inflammation in one or more joints. The August 2009 examiner explained that the Veteran's arthritis was of an unspecified autoimmune etiology that had existed for six months or more. Its cause is unknown and the factors that result in flare-ups are also poorly understood. As such, the Board finds that service connection for palindromic syndrome/inflammatory arthritis as an illness without conclusive pathophysiology is warranted under 38 C.F.R. § 3.317(a)(2)(ii). Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted. See 38 U.S.C. § 5107(b). The Veteran's claim of entitlement to service connection for a bilateral ankle disability, due to palindromic syndrome/inflammatory arthritis of unknown pathophysiology, is granted. ORDER Service connection for a bilateral ankle disability, due to palindromic syndrome/inflammatory arthritis of unknown pathophysiology is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs