Citation Nr: 18142362 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-14 181 DATE: October 15, 2018 ORDER Service connection for a right ankle disability is denied. Service connection for a left ankle disability is denied. Service connection for a left knee disability is denied. REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) to include memory loss, headache and insomnia is remanded. FINDING OF FACT The evidence of record does not show that the Veteran has, at any point during the appeal period, had a current diagnosis of a right ankle disability, left ankle disability, or left knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 3. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107, 7104 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2001 through November 2013. His military awards and decorations include two Combat Action Ribbons. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated April 2014 and August 2014 of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for bilateral ankle and left knee disabilities. The Veteran seeks service connection for his bilateral ankle and left knee. He contends that he experienced pain, popping and weakness throughout service because of a right ankle injury during boot camp. After he initially sought treatment, he declined further medical attention, wrapped it himself, and continued his duties. See Notice of Disagreement (NOD), April 2015. He also contends that as a result of that boot camp injury he favored his right leg, straining his left ankle and left knee. See NOD, April 2015. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis for the right ankle, left ankle, or left knee, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In this regard, the Veteran’s service treatment records (STRs) show that he experienced pain and swelling after he tripped over a branch and twisted his right ankle. See STR, January 2002. The Veteran noted only mild pain, a two on a scale of one to ten, and edema. He was assessed as having a Grade 1 Right Ankle Sprain. Upon arriving at Camp Lejeune in February 2002, the Veteran indicated that he had treated at Parris Island for a swollen ankle the previous month but did not report that the ankle was causing him pain or difficulty. Rather, he indicated that he considered himself fit to train. See Chronological Record of Medical Care, February 2002. The Veteran’s STRs are silent for any left ankle or left knee injury or complaints. Instead, STRs indicate that the Veteran sustained a left foot injury and was seen at the Emergency Room (ER) at Navy Hospital in Camp Pendleton, California. The ER record documenting the specific left foot injury has not been associated with the Veteran’s claims file. However, an available imaging report indicated a normal foot series. See Radiology report, June 2006. The Veteran also noted that he was “bothered a little” by “back pain, pain in the arms, legs or joints (knees, hips etc.)” when separating from service. See Post-Deployment Health Reassessment (PDHRA), April 2013. However, the specific joints involved were not documented. Notably, based upon a post deployment examination of physical symptoms, a referral for further medical care was not indicated because no significant impairment was found. The Board acknowledges that the Veteran has complained of bilateral ankle pain and left knee pain. However, he has not submitted any postservice treatment records showing that he has a current diagnosis for the pain in his bilateral ankles or his left knee. The Veteran was afforded a VA examination for his bilateral ankle and left knee claims in April 2014. With respect to the left knee, the Veteran reported that the date of onset of his symptoms was 2004. He experienced clicking sounds, swelling, and pain. He also reported experiencing identical symptoms in his left and right ankles, but stated that the date of onset for those symptoms was 2009. On physical examination, the Veteran had no evidence of pain. He presented with muscle strength of 5/5 in his lower left extremity and his ankles had 5/5 active movement (dorsiflexion and plantar flexion) against full resistance. The VA examiner also noted that there was no leg length discrepancy or contributing factors of weakness, fatigability, incoordination, or pain during flare-ups or repeated used over time that could additionally limit the functional ability of the either ankle joint or left knee joint. As for diagnostic studies, April 2014 VA X-rays of the right and left ankle and left knee were normal. Based on the foregoing, the April 2014 VA examiner found that the Veteran did not have a right or left ankle or left knee condition that could be diagnosed because there was no pathology to render a diagnosis. The evidence of record establishes no diagnosed medical pathology in this case associated with the Veteran’s subjective left knee and bilateral ankle pain. The Board has considered whether the subjective pain shown in this case causes functional impairment to constitute a current disability for the purposes of these service connection claims. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that “‘disability’ in § 1110 refers to the functional impairment of earning capacity” and “pain in the absence of a presently-diagnosed condition can cause functional impairment,” en route to its conclusion that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.” 886 F.3d at 1363, 1368, 1369. However, even if pain is objectively confirmed by a doctor, the pain must functionally impair the veteran to constitute a disability. Id. at 1367-68; see id. at 1362 (dictionary definitions of “disability” relate to “functional incapacitation or impairment”); Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011) (“Pain in... a particular joint may result in functional loss, but only if it limits the ability... of the body.” (internal quotation marks omitted)). While pain “can cause functional impairment,” its presence does not always “reach[ ] the level of a functional impairment of earning capacity” necessary to “establish the presence of a disability.” Saunders, 886 F.3d at 1367-68. In determining whether a particular pain reaches the level of “functional impairment of earning capacity,” both medical and lay evidence must be considered. 38 C.F.R. § 3.303(a). According to 38 C.F.R. § 4.10, the basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life including employment. Therefore, in assessing functional impairment, a Veteran’s lay assertions may be weighed against contrary medical evidence, but not categorically dismissed. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). In this case, the April 2014 VA examination report makes clear that the Veteran has no functional impairment associated with his subjective complaints of clicking sounds, swelling, and pain in his left knee and bilateral ankles. In addition to the findings noted above, the VA examiner also indicated that the Veteran did not report any flare-ups that impacted the function of his left knee or bilateral ankles. His range of motion testing was also essentially normal for each of the claimed conditions, including after repetitive testing, with no objective evidence of painful motion noted. The Board finds that the April 2014 VA examination report is adequate probative evidence indicating that the Veteran does not have a current disability medically diagnosed or otherwise manifesting in functional impairment in his left knee or either of his ankles. While the Veteran is competent to report that he has had bilateral ankle pain and left knee pain since service, he has not been shown to possess the requisite medical training, expertise, or credentials needed to diagnose orthopedic disabilities, nor has he specifically identified a disability other than pain symptoms. His lay evidence does not constitute competent medical evidence and lacks probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board finds greater probative weight to in the competent medical evidence of record. The Board has been mindful of the “benefit-of-the-doubt” rule, but, in this case, there is not such an approximate balance of the positive and negative evidence to permit a favorable determination. The Veteran should note that if he receives a medical diagnosis of a left knee disability or a bilateral ankle disability in the future, or if he develops new functional impairment associated with his claimed conditions, he may file a petition to reopen these claims. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a traumatic brain injury (TBI) to include memory loss, headache and insomnia is remanded. The Veteran contends that he experiences memory loss, headaches, and insomnia because of a TBI he suffered when an IED blast hit his patrol vehicle. See NOD, April 2015. STRs confirm the Veteran had an acute traumatic brain injury on the battlefield. See, e.g., Screening for Traumatic Brain Injury, May 2010. The Veteran also had neuropsychological testing via computer, however a formal interpretation of those results has not been associated with the file. See Neuropsychological Testing Results May 2011, February 2012, December 2012. On April 2014, the Veteran was afforded a General Medical VA examination. The VA examiner indicated that the Veteran did not have a neurological condition. However, the VA examiner also added that the Initial and Review TBI questionnaire could only be completed by a VA clinician who had completed the TBI C&P certification. The VA examiner indicated that the Veteran had a psychiatric condition other than posttraumatic stress disorder (PTSD), but did not record that finding. The VA examiner added that mental disorder evaluations must be conducted by a specialist. See VA General Medicine Examination, April 2014. The RO procured a VA Psychiatric Examination for the Veteran on July 2014. The VA examiner noted the Veteran’s symptoms of periodic insomnia, hypervigilance in unfamiliar settings. The VA examiner determined that the Veteran’s remote, recent, and immediate memory were intact, with responses to memory questions in the average range and no indication of impairment. Based upon his examination of the Veteran the examiner determined that there was no mental health pathology and therefore no diagnosis based on DSM-IV criteria could be assigned. See VA Psychiatric Examination, July 2014. The Board finds that further records development and a new VA examination specifically assessing the Veteran’s contentions of neurological symptoms and documenting any progression or lack thereof of his claimed disability is warranted before a decision can be rendered in his claim. The matter is REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain private and VA treatment records for the claimed residuals of his TBI. Associate the medical records with the Veteran’s claims file. If any of the requested records are not available, such should be noted for the record along with a description of the efforts undertaken to obtain such records. 2. After the above development has been completed, schedule the Veteran for a VA examination with an appropriate medical examiner to determine if he has any residuals from a TBI, to include memory loss, headaches and insomnia, that are etiologically related to his military service. The examiner is to be provided access to the complete claims folder and a copy of this remand. The examiner should describe in writing the Veteran’s pertinent medical history in detail, to include current complaints, and the nature and extent of any symptoms consistent with a TBI. Thereafter, the examiner should (1) identify for the record all the Veteran’s current diagnoses and/or symptoms related to his TBI and then (2) provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the residuals of the Veteran’s TBI to include memory loss, headaches and insomnia had an onset in service, is due to an event or injury during service or is otherwise etiologically related to the Veteran’s active duty service. The examiner is reminded that the combat presumption applies in this case and is asked to address the Veteran’s lay statements of injury, pain, and impaired functionality. The examiner must provide a complete rationale in support of any opinions proffered or explain why such an opinion would be speculative. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Alexander, Associate Counsel