Citation Nr: 18143675 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-07 375 DATE: October 19, 2018 ORDER Service connection for a left ankle disability is denied. Service connection for a right ankle disability is denied. Service connection for a left foot disability is denied. Service connection for a right foot disability is denied. Service connection for chronic kidney disease is granted. Service connection for an anxiety disorder is granted. A disability rating of 10 percent, but no higher, for residuals of a right fibula fracture is granted. REMANDED Service connection for gout is remanded. Service connection for a urinary disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. There is no probative evidence of a current left ankle disability; to the extent the Veteran’s gout affects his left ankle, this is a separate claim being addressed in the remand below. 2. There is no probative evidence of a current right ankle disability; to the extent the Veteran’s gout affects his right ankle, this is a separate claim being addressed in the remand below. 3. There is no probative evidence of a current left foot disability; to the extent the Veteran’s gout affects his left foot, this is a separate claim being addressed in the remand below. 4. There is no probative evidence of a current right foot disability; to the extent the Veteran’s gout affects his right foot, this is a separate claim being addressed in the remand below. 5. The Veteran’s chronic kidney disease is related to service. 6. The Veteran’s anxiety disorder is related to his service-connected tinnitus and residuals of a right fibula fracture. 7. Throughout the appeal period, the right fibula fracture residuals have been manifested by pain and functional limitations most nearly representing a slight disability; the evidence does not reflect or more nearly approximate a moderate disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for entitlement to service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for service connection for chronic kidney disease have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. The criteria for service connection for an anxiety disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 7. Throughout the course of the appeal, the criteria for the assignment of a 10 percent rating for residuals of a right fibula fracture have been met. 38 U.S.C. §§ 1155, 5107; C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.71a, DC 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1975 to January 1979 in the United States Marine Corps. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The electronic filing system contains an additional medical record that was associated with the file by VA, rather than the Veteran, since the RO’s last readjudication of the claims without a waiver of RO jurisdiction. See 38 U.S.C. § 7105(e). However, the record consists of a VA audiological examination, and it is not pertinent to the claims adjudicated below. As such, there is no risk of prejudice to the appellant from proceeding without the waiver. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Bilateral Ankles & Feet The Veteran reports having bilateral ankle and feet swelling that is related to service. Initially, to the extent that gout can cause swelling, gout has been developed as a separate claim in its own right, and is being remanded for additional development. Should service connection be awarded for gout, separate ratings for each joint affected by gout may be assigned, depending on medical findings and subject to the applicable regulations. See 38 C.F.R. § 4.71a, Diagnostic Codes 5002 & 5017, pertaining to gout. Aside from gout, a close review of the claims file reveals no probative evidence of any current orthopedic or other disability of the ankles or feet. A large volume of VA treatment records have been obtained, and they are silent for history, complaints, treatment, or diagnosis of a disability in either ankle or either foot. The Veteran has undergone VA examinations for other disabilities, including his service-connected right leg disability, and those examination reports too lack any indication of a bilateral ankle or foot disability. The Board has considered that pain alone, even without an underlying diagnosis, can still constitute a current disability for VA compensation purposes if it causes functional impairment, to include impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, the Veteran has not alleged, and the weight of the evidence does not reflect, that any ankle or foot pain other than gout has had this effect. Where the probative evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). In the absence of probative evidence of a current disability, the other elements of service connection need not be addressed and the claim must be denied. The Board has considered the Veteran’s own assertions that he has current bilateral ankle and foot disabilities. Although he is competent to report his symptoms, he has not been shown to have the medical training or expertise to be competent to render an opinion as to the medical diagnosis or etiology of these disabilities. See 38 C.F.R. § 3.159(a)(1)-(2); Jandreau v, 492 F.3d at 1377; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Moreover, the credibility of the general assertions is severely undermined by the absence of any post-service diagnosis of the disabilities. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. Chronic Kidney Disease The Veteran has current chronic kidney disease, documented, for example, in an October 2016 private medical report of Dr. S. Personnel records show, and the RO has already accepted, that the Veteran served at Base Camp Lejeune in North Carolina during military service, and was exposed to contaminated water. For background purposes, in the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the volatile organic compounds (VOCs) trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent. The main source of TCE contamination was on-base industrial activities, while the main source of PCE was an off-base dry cleaning facility. Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems. These water systems served housing, administrative, and recreational facilities, as well as the base hospital, and the Department of the Navy estimates that as many as 630,000 active duty personnel may have been exposed; the contaminated wells supplying the water systems were identified and shut down by February 1985. 38 C.F.R. § 3.307 and § 3.309 provide that certain diseases will be presumed to have been incurred or aggravated in service for veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days. The eight diseases in question are adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease. See Diseases Associated With Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4173 (January 13, 2017). The record does not indicate that the Veteran has kidney cancer. As such, presumptive service connection based on herbicide agent exposure is not applicable to the claim for chronic kidney disease. However, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this regard, VA recognizes a National Academy of Sciences (NAS) 2009 publication titled, Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects (National Academy of Sciences 2009 report). This report lists additional conditions as having limited/suggestive evidence of an association with the contaminated water, including esophageal cancer, breast cancer, renal toxicity, hepatic steatosis, scleroderma, and neurobehavioral effects. On VA examination in April 2014, the examiner opined that the Veteran’s chronic kidney disease was less likely as not related to his contaminated water exposure. As rationale, the examiner stated that kidney disease is not included on the list of conditions that may be associated with contaminated water exposure, and the risk factors for kidney disease do not include exposure to TCE or PCE. The examiner noted the 2009 NAS publication, but did not discuss it in reaching his findings. In the October 2016 private medical report, Dr. S. examined the claims file, including the Veteran’s post-service renal treatment records, and in-service records. As of April 2016, the Veteran was diagnosed with chronic kidney disease, stage 5. He noted that it was well-established in the medical community that a correlation exists between the compounds found in the contaminated water at Camp Lejeune and kidney-related impairments. Medical articles were cited, and the file contains copies of some of the literature. He also noted the 2009 NAS publication. Based on this research, Dr. S. opined it was more likely than not that the contaminated water at Camp Lejeune contributed materially and substantially to the Veteran’s chronic kidney disability. He further opined that it was at least as likely as not, that the Veteran’s anxiety (now service-connected below) and hypertension further contributed to kidney dysfunction, citing medical literature in support. In considering the evidence under the laws and regulations as set forth above, and resolving any doubt in his favor, the Board concludes that the evidence is in equipoise and the Veteran is entitled to service connection for his chronic kidney disease. The October 2016 opinion of Dr. S. is adequate for adjudication. He based his conclusions on citation to and discussion of medical literature, as well as a review of the claims file, including post-service renal treatment records. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). By contrast, the April 2014 VA examiner’s opinion is not persuasive because he did not address service connection on a direct basis. Rather, he simply noted that chronic kidney disease is not included in the list of diseases eligible for presumptive service connection. Further, while noting the 2009 NAS publication which states there is limited/suggestive evidence of an association between kidney toxicity and the contaminated water, he did not address it. As the evidence is at least in equipoise in showing that the Veteran has chronic kidney disease attributable to service, and resolving all doubt in his favor, the Board finds that service connection is warranted. Anxiety Disorder The Veteran has an anxiety disorder, documented in a June 2016 Disability Benefits Questionnaire (DBQ), completed by Dr. H. Initially, no psychiatric abnormalities were noted on his service entrance examination. On the accompanying Report of Medical History, he reported depression or excessive worry. However, the examiner noted that there was no prior psychiatric history or treatment. There is otherwise no evidence indicating a preexisting psychiatric disability. A history of preservice 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). Given this, legal analysis of the claim as a “preexisting condition” is not applicable. On the matter of direct service connection, the record does not contain an opinion linking the disability to service and STRs do not contain psychiatric complaints, treatment, or diagnoses. The disability was not documented until many years after service discharge. Further, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorders such as an anxiety disorder. Given all of this, VA is under no duty to obtain a medical opinion addressing direct service connection. The Board will thus turn to a discussion of secondary service connection. In June 2016, Dr. H.-G. examined the Veteran and reviewed the claims file. She completed a DBQ and also provided a separate report. In her report, she summarized the Veteran’s medical and psychiatric history. She discussed medical literature supporting a link between anxiety, depression, and medical problems, including tinnitus. The file contains copies of some of the literature discussed by Dr. H.-G. Based on this medical literature, an examination of the Veteran, and a review of the claims file, she opined that it was more likely than not that the Veteran’s tinnitus and right fibula fracture residuals caused his anxiety disorder. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in his favor, the Board concludes that the Veteran is entitled to secondary service connection for his anxiety disorder, as caused by his service-connected tinnitus and right fibula fracture residuals. The June 2016 positive nexus opinion of the Dr. H.-G. constitutes the entirety of the evidence on secondary service connection. There is no evidence to the contrary. The Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Further, as the Board finds the June 2017 opinion adequate, a remand is not needed. Dr. H.-G. based her conclusions on a review of the claims file, examination of the Veteran, and medical literature. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In sum, the evidence is at least in equipoise in showing that the Veteran has an anxiety disorder caused by the service-connected tinnitus and residuals of a right leg fracture. In resolving all reasonable doubt in the Veteran’s favor, secondary service connection is warranted. Higher Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Board's analysis will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The probative evidence here includes the VA examination report discussed below. The Veteran’s VA treatment records and private medical records were considered, but do not contain the specific information sufficient for rating the disabilities under the applicable rating criteria. The Veteran was awarded service connection for his right leg disability and assigned a noncompensable rating in a December 1979 rating decision. The noncompensable rating was continued in the May 2014 rating decision on appeal under 38 C.F.R. § 4.71a, DC 5262. Disabilities of the knee and leg are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. VA’s rating schedule provides for ratings of 10, 20, or 30 percent where there is limitation of flexion of the knee to 45, 30, or 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The rating schedule also provides ratings of 10, 20, 30, 40, and 50 percent for limitation of extension of the knee to 10, 15, 20, 30, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. For rating purposes, a normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5257, slight recurrent subluxation or lateral instability, is rated as 10 percent disabling. Moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under DC 5262, a 10 percent rating is assigned with evidence of malunion of the tibia and fibula with slight knee or ankle instability. A 20 percent rating is warranted with a moderate knee or ankle disability, a 30 percent rating is warranted with a marked knee or ankle disability, and a 40 percent rating is warranted with evidence of nonunion of the tibia and fibula, with loose motion, requiring a brace. Words such as "mild," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The probative evidence here includes a VA examination report from October 2012. Considering the pertinent evidence in light of the governing legal authority, the Board finds that a 10 percent rating is warranted for the Veteran’s residuals of a right fibula fracture. Initially, his symptoms do not satisfy all of the criteria for a rating under DC 5262 as malunion or nonunion of the tibia or fibula were not shown on x-ray testing conducted for the examination. Nonetheless, the Board finds that the requirement for a “slight” knee or ankle disability has been met given the Veteran’s pain, which occurs once or twice a month or with weather changes, lasts 45 to 60 minutes, and is at a severity level of 7/10. It causes flare-ups impacting the function of the knee or lower leg, requiring him to sit to alleviate pain. Further, on examination, there was tenderness along the mid-lateral aspect of the fibula. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that pain may result in functional loss if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Moreover, in Burton v. Shinseki, the Court determined that 38 C.F.R. § 4.59 provides for a minimum 10 percent rating for painful, unstable, or maligned joints, which involve residuals of injuries in non-arthritis contexts. Burton, 25 Vet. App. at 4-5. However, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent as a “moderate” knee or ankle disability has not been shown. The VA examiner found the Veteran could perform repetitive use testing without any functional loss or loss of motion. No assistive devices were required. X-rays showed no abnormalities. Muscle strength was normal. There was no swelling or ecchymosis. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the right fibula fracture. The Board considered all other diagnostic codes pertaining to the lower leg but none provide the basis for a higher or separate rating. As ankylosis was not shown on either examination, a rating under DC 5256 is not warranted. Similarly, DC 5257 does not apply as the VA examiner found no recurrent subluxation or lateral instability. DCs 5258 and 5259 are not applicable as the examiner found the Veteran does not have a meniscal condition and has not had any surgical procedure for a meniscal condition. As extension of the leg was normal and without objective evidence of pain, a separate rating is not warranted under DC 5261. Similarly, a separate rating is not warranted under DC 5262 as flexion of the leg was to 130 degrees without objective evidence of pain. As there has been no indication of genu recurvatum, DC 5263 is not applicable. The evidence also does not show a related ankle disability as contemplated by DCs 5270-5274, shortening of the bones of the lower extremities, as contemplated by DC 5275, or any muscle disability, as contemplated by DCs 5310-5318. For the foregoing reasons, the Board finds that a 10 percent rating is warranted for the Veteran’s right fibula fracture residuals, however, the preponderance of the evidence is against the assignment of any higher or separate rating. In reaching this decision the Board considered the doctrine of reasonable doubt, however, to the extent the preponderance of the evidence is against the assignment of a rating in excess of 10 percent, the doctrine is not for application. REASONS FOR REMAND A medical opinion is needed prior to adjudicating the claims for gout and a urinary disability. With regard to gout, private medical records of March 2014, for example, show a current diagnosis. Service treatment records are replete with documentation of various joint pains, including in February 1975, April 1975, February 1976, and July 1977. An opinion addressing the etiology of gout has not been provided and must be obtained. As for a urinary disability, a March 2014 private medical record shows proteinuria and a December 2012 private medical record shows a urinary tract infection. While urinary problems were not shown in service, an opinion on whether the disability may be secondary to the now-service connected chronic kidney disease should be obtained. The Veteran’s kidney and urinary problems are discussed in the medical record in tandem; it is unclear whether the urinary problems are a manifestation of the kidney disease or a separate disability. The examiner should also address whether the urinary disability may be related to the Veteran’s exposure to contaminated water in service, The claim for a TDIU is intertwined with the service connection claims being remanded. A potential grant of service connection for the claims, and any statement made by the examiner on the impact of the disorder on employability pursuant to the applicable examination worksheet, would affect adjudication of the TDIU issue. Moreover, appellate adjudication of the TDIU claim must be deferred pending the RO's implementation of the Board's awards of service connection above, including the assignments of ratings and effective dates. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to address the nature and etiology of his gout. The examiner must opine on whether the gout is at least as likely as not (i.) related to an in-service injury, event, or disease, to include his exposure to contaminated water at Camp Lejeune, or (ii.) secondary to (i.e., proximately due to, the result of, or aggravated by) the service-connected chronic kidney disease. In doing so, consider the service treatment records showing various joint pain, including in February 1975, April 1975, February 1976, and July 1977 2. Schedule the Veteran for an examination to address the nature and etiology of his urinary disability. The examiner must address the following: (A.) Identify all current urinary disabilities and state whether the Veteran has, or has had, bladder cancer. (B.) For each current urinary disability, the examiner should indicate whether it is a residual of the service-connected chronic kidney disease, or a separate and distinct disability. (C.) If the urinary disability is a separate and distinct disability from the Veteran's chronic kidney disease, then render an opinion as to whether it is at least as likely as not (i.) related to an in-service injury, event, or disease, to include his exposure to contaminated water at Camp Lejeune, or (ii.) secondary to (i.e., proximately due to, the result of, or aggravated by) the service-connected chronic kidney disease. 3. On readjudication of the claims, should service connection be awarded for gout, consider whether to assign separate ratings for each joint affected by gout. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel