Citation Nr: 1754617 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 11-33 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a right shoulder disorder, to include as due to an undiagnosed illness or as secondary to service-connected deep venous thrombosis (DVT) of the left lower extremity (LLE). 2. Entitlement to service connection for left ankle arthritis, to include as due to an undiagnosed illness or as secondary to service-connected DVT of the LLE. 3. Entitlement to service connection for a bilateral shin disorder, to include as due to an undiagnosed illness or as secondary to service-connected DVT of the LLE. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1990 to July 2010, including service in Iraq. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2010 by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2015, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record on appeal. In April 2016, the Board remanded this matter for development. Thereafter, it was determined that further medical inquiry was necessary to decide the claims. As such, the Board sought a medical expert opinion from the Veterans Health Administration (VHA) pursuant to VHA Directive 1602-01 in July 2017. Such opinion was received in August 2017. The Veteran and his representative were provided a copy of the opinion and allowed 60 days to submit additional evidence and/or argument; however, a response was not received by the expiration of the 60 day period. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran's claimed right shoulder symptoms, left ankle arthritis symptoms, and bilateral shin symptoms do not constitute a medically unexplained chronic multi-symptom illness, and are not related to, or manifestations of, an undiagnosed illness or other qualifying, chronic disability. 3. At no time during the pendency of the claim does the Veteran have a current diagnosis of a right shoulder disorder, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. 4. At no time during the pendency of the claim does the Veteran have a current diagnosis of a left ankle disorder other than his service-connected left ankle sprain and os trigonum, and the record does not contain a recent diagnosis of arthritis or another nonservice-connected left ankle disorder prior to the Veteran's filing of a claim. 5. At no time during the pendency of the claim does the Veteran have a current diagnosis of a bilateral shin disorder, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. CONCLUSIONS OF LAW 1. Joint pain, stiffness, and aching of the right shoulder, left ankle (other than sprain and os trigonum), and bilateral shins are not shown to be due to undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017). 2. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for left ankle arthritis or a disorder other than sprain or os trigonum have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for service connection for a bilateral shin disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Further, neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Analysis The Veteran contends that his pain, stiffness, and aching in the right shoulder, left ankle (other than sprain and os trigonum disabilities), and bilateral shins are related to his military service, to include his service in Southwest Asia, his multiple jumps while assigned to the 82nd Airborne Division, a documented right shoulder acromioclavicular separation from August 1991, a left ankle sprain in May 1992, proximity to an improvised explosive device detonation, and/or as secondary to his service-connected DVT of the LLE. See December 2015 Hearing Transcript and December 2011 VA Form 9. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service or when evidence establishes a disease diagnosed after discharge was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137 (peacetime); 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Service connection may also be granted for a disability due to a qualifying chronic disability of a Veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War provided that such disability became manifest during either active service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4, not later than December 31, 2021, and by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In the instant case, the record reflects that the Veteran had service in Southwest Asia from April 4, 2003, to March 31, 2004, and from January 10, 2005, to December 7, 2005, during the Persian Gulf War and, therefore, such laws and regulations are applicable to his claims. A chronic qualifying disability means a chronic disability resulting from an (A) undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) IBS; or (4) 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; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2)(i). For the purposes of this section the term 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). "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). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board finds that the Veteran's right shoulder, left ankle (other than sprain and os trigonum disabilities), and bilateral shin symptoms do not represent a medically unexplained chronic multi-symptom illness, even taking into account his complaints of pain, aches, and stiffness. In fact, such a diagnosis has been explicitly ruled out by the competent medical evidence. In this regard, medically unexplained chronic multi-symptom illnesses are specific clinical conditions that have defined criteria which must be met in order to support a diagnosis, and an August 2017 VA expert examiner found that the criteria for said diagnoses were not met. In this regard, as the medical evidence of record was insufficient to decide the claim, the Board sought an expert medical opinion in July 2017. In the request for the opinion, the Board outlined the Veteran's contentions as to his right shoulder pain, left ankle pain (other than sprain and os trigonum disabilities), and his bilateral shins. The Board also explained to the examiner that VA examiners failed to find any diagnoses related to such reports in February 2010, April 2012, February 2013, and June 2016. In August 2017, after performing a review of the VBMS claims file and reviewing the relevant information from Virtual VA as described by the Board in the opinion request, a VA physician and physical medication rehabilitation specialist opined it was less likely than not that the Veteran's symptoms represented a medicably unexplained chronic multi-symptom illness. In making this determination, the expert acknowledged the Veteran's historical reports of pain in these areas, but also observed that pain was not reported in conjunction with a June 2016 VA examination. Nevertheless, the expert further noted that such pain was not accompanied by fatigue, disability out of proportion to physical findings, or overlapping signs and symptoms. He further noted there was no evidence showing intermittent episodes of improvement and worsening over six month periods in any of the claimed areas. In short, the examiner found the Veteran's symptoms were not attributable to a medically unexplained chronic multi-symptom illness. The Board has reviewed the Veteran's lay statements in support of the claim, including his and his wife's testimony at the December 2015 hearing. However, they have not reported the Veteran being diagnosed with a medically unexplained chronic multi-symptom illness at any point during the appeal. Simply having symptoms of pain, stiffness, and aching, as credibly reported by the Veteran, does not comport to a diagnosis of a medically unexplained chronic multi-symptom illness, as these conditions have a specifically defined set of clinical criteria which must be met. As to whether the Veteran's right shoulder, left ankle (other than sprain and os trigonum disabilities), or bilateral shin symptoms can be attributed to known clinical diagnoses, the Board finds the probative evidence of record is against such a finding. Indeed, the element of service connection at issue in this case is the presence of a current disability. In this regard, the Veteran has not reported that he was ever diagnosed with a right shoulder disorder, a left ankle disorder other than sprain or an os trigonum disability, or bilateral shin splints. More telling, however, is the lack of any diagnosed disorders in these body parts in the available medical records. In fact, four VA examiners and the August 2017 expert have all failed to identify any clinical diagnosis of the right shoulder, left ankle (other than service-connected sprain and os trigonum disabilities), or bilateral shins. Moreover, a VA general medicine examination, including a physical examination, was conducted in February 2010, at which time the examiner determined that there was no current pathology to render a diagnosis as to the claimed right shoulder disorder, left ankle arthritis, or bilateral shin disorder. Similarly, April 2012 and February 2013 VA examiners also determined that there was no current pathology to render a diagnosis for the claimed disorders. Most recently, in June 2016, a VA contract examiner again determined that the Veteran's reported symptoms related to his right shoulder, left ankle, and shins cannot be attributed to clinical diagnoses. In the instant case, the probative evidence of record fails to demonstrate a current diagnoses of a right shoulder disorder, left ankle disorder other than sprain or os trigonum disabilities, or of the bilateral shins at any time during the appeal period. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Board has also considered the United States Court of Appeals for Veterans Claims' (Court's) holding in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), there is also no probative evidence of recent diagnoses of any of these disorders prior to the Veteran's claim. In this regard, the Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, the matter of a medical diagnosis for a disability not capable of lay observation, such as that of arthritis or other joint impairment, is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Specifically, the diagnosis of arthritis and joint disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of x-ray imaging. In the instant case, there is no suggestion that the Veteran has developed an expertise in the diagnosis of musculoskeletal disabilities. Therefore, as the Veteran does not have the appropriate medical training and expertise to competently diagnose a right shoulder disorder, left ankle disorder other than sprain or os trigonum disabilities, or a bilateral shin disorder, the lay assertions in this regard have no probative value. Jandreau, supra at 1377 n.4 ("[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Ultimately, the Board finds the February 2010, April 2012, February 2013, June 2016, and August 2017 VA examiner's opinions to be more probative than the Veteran's assertions as to the presence of current disabilities. Indeed, while cognizant of the Court's holding in Brokowski v. Shinseki, 23 Vet. App. 79 (2009), the record indicates that the Veteran's left ankle symptomatology has already been service-connected as a left ankle sprain and left foot arthritis with os trigonum. The examiners found no evidence of a current or previous left ankle diagnosis other than those that have already been service-connected. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131. Thus, where, as here, the probative evidence indicates that the Veteran does not have a current diagnosis of the right shoulder, bilateral shins, or left ankle that has not already been service-connected for the entire appeal period, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). If the Veteran is subsequently diagnosed with a right shoulder or bilateral shin disorder, he is encouraged to file a claim to reopen his application for service connection with the RO. With regards to his left ankle, he should alert the RO of any subsequent diagnosis so such can be rated in accordance with his currently service-connected left ankle disabilities. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a right shoulder disorder is denied. Service connection for left ankle arthritis or any other left ankle disorder other than sprain and os trigonum disabilities is denied. Service connection for a bilateral shin disorder is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs