Citation Nr: 18144837 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-22 634 DATE: October 25, 2018 ORDER Entitlement to service connection for a right wrist disability is denied. Entitlement to service connection for a right ankle disability is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for nerve damage to include as due to mustard gas exposure and/or as secondary to back disability is remanded. Entitlement to service connection for dizziness to include as due to mustard gas exposure and/or as secondary to nerve damage is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a right wrist disability. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a right ankle disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right wrist disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2014 and June 2015 rating decisions. In April 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. At the hearing, the Veteran submitted additional evidence with a waiver of RO jurisdiction consideration. 38 C.F.R. §§ 19.31, 20.1304 (2017). Service Connection Right Wrist Disability The Veteran asserts that he has a current right wrist disability that is due to right wrist injury in a pugil fight during basic training. 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 of a right wrist 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). The April 2015 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of right wrist pain, which the Veteran described as “nerve damage,” he did not have a diagnosis of a right wrist disability. Further, despite these subjective reports of pain, the April 2015 VA examiner found that the Veteran’s right wrist pain did not cause any objective evidence of impairment of functioning as his range of motion was normal and there was no evidence of pain on motion. Range of motion and muscle strength were normal. Additionally, the examiner opined that the Veteran did not have nerve damage in his wrist because on examination when asked where his shooting pain started and went the Veteran pointed to several different areas of both sides of his wrist and pathways which are not consistent with nerve route damage. Although the Veteran has not been diagnosed with a specific disability of his right wrist, pain alone may constitute disability, even without an identifiable underlying pathology. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board finds, however, that his pain does not impair functioning as he did not exhibit pain on motion or a limitation of motion on April 2015 VA examination. To establish the presence of a disability, a claimant would need to show that the pain reached the level of a “functional impairment,” which is defined as “the inability of the body or a constituent part of it to function under the ordinary conditions of daily life, including employment.” Id. at 1367-68. That has not been shown here. Pain itself does not rise to the level of functional loss; pain must affect some aspect of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App.32 (2011); Additionally, the Veteran’s VA and private treatment records through August 2017 do not contain a diagnosis of a right wrist disability. While Veteran believes he has a current diagnosis of a right wrist disability, he is not competent to provide a diagnosis in this case because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Right Ankle Disability The Veteran asserts that he has a right ankle disability that began during his active duty service and has continued since. 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 of a right ankle disability 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, 557 F.3d at 1366; Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321; 38 C.F.R. § 3.303(a), (d). The April 2015 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of ankle weakness, he did not have a diagnosis of a right ankle disability. The examiner indicated that right ankle instability or dislocation was suspected, but anterior drawer and talar tilt tests were negative. Range of motion and muscle strength were normal. Further, while the Veteran testified that he wore a brace on his ankle and VA psychiatric treatment records reflect a request for a replacement brace, his VA and private treatment records through August 2017 do not contain a diagnosis of a right ankle disability. While Veteran believes he has a current diagnosis of a right ankle disability, he is not competent to provide a diagnosis in this case because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana, 24 Vet. App. at 428; Jandreau, 492 F.3d at 1377. Consequently, the Board gives more probative weight to the competent medical evidence. REASONS FOR REMAND Entitlement to service connection for a back disability is remanded. Entitlement to service connection for nerve damage to include as due to mustard gas exposure and/or as secondary to back disability is remanded. Entitlement to service connection for dizziness to include as due to mustard gas exposure and/or as secondary to nerve damage is remanded. The record reflects that the Veteran had multiple periods of active duty service and additional National Guard service, some of which are not verified. The Veteran has indicated that his back disability had its onset during his last period of active duty service which has not been verified. The AOJ should attempt to verify the Veteran’s periods of active duty, active duty for training or inactive duty for training. While there is a formal finding of unavailability for part of the Veteran’s National Guard service treatment record, the Veteran’s claims file does not appear to contain his complete service personnel and treatment records for his periods of active duty service and for his additional service in in the National Guard. As they may contain information regarding the Veteran’s reported in-service motor vehicle accident and information regarding the extent of his chemical exposure at Johnston Atoll, a remand is required to obtain them. Regarding the Veteran’s claim for a back disability, the Veteran was afforded a VA examination in November 2013, but the opinion is inadequate. The examiner noted the Veteran reported that his low back pain began in November 2010 and a December 2010 MRI noted he had a 2 year history of low back pain following a motor vehicle accident. While the Veteran has reported that his most recent period of active duty service was July 2007 to January 2011, the examiner opined that his back disability was less likely than not inccured in or caused by a in-service event or injury because those dates do not coincide with his verified dates of active duty service on his available DD-214. The examiner noted that he had verified active duty service from October 1991 to August 1995, October 2005 to May 2006, and May 2006 to October 2006. Accordingly, after the Veteran’s dates of service have been verified, a new medical opinion should be obtained. The Board cannot make a fully-informed decision on the issues of service connection for nerve damage and dizziness because no VA examiner has opined whether such conditions are related to his service, to include exposure to mustard gas on Johnston Atoll. The Board notes that while the April 2015 VA examiner found the Veteran did not have nerve damage to his wrist, his VA treatment records reflect he is being treated for restless leg syndrome and at the April 2017 Travel Board hearing, the Veteran provided credible testimony that he experiences a twitch in his shoulder. Additionally, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel records, to include all documents pertaining to his service in the Air National Guard. Verify all active duty, active duty for training, and inactive duty training dates for alleged service in the Air National Guard from January 2003 to January 2004, November 2004 to September 2005, and July 2007 to January 2011. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 2. Thereafter, obtain the Veteran’s complete service treatment records, to include documents pertaining to his service in the Army and in the Air National Guard. Document all requests for information as well as all responses in the claims file. 3. Obtain the names and addresses of all medical care providers who treated the Veteran for any back, nerve, or dizziness complaints since service. After securing the necessary release, take all appropriate action to obtain these records, including any updated VA treatment records since August 2017. 4. After the completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back disability. Copies of all pertinent records should be made available to the examiner for review. Based on an examination, review of the record, and any tests or studies deemed necessary the examiner should provide opinions as to the following: (a.) Identify all diagnosed back disabilities since September 2014, to include degenerative joint disease of the lumbar spine, bulging disc, mechanical back pain syndrome, facet joint arthropathy, and degenerative disc disease. (b.) For each currently diagnosed back disability, is it at least as likely as not related to an in-service injury, event, or disease, including carrying heavy gear while service at Johnston Atoll and the Veteran’s November 2010 motor vehicle accident? The examiner should consider and discuss as necessary the Veteran’s lay statements that his he his back disability began during service and that he had continued symptomatology since service, and his report that he was placed on a medical hold from December 2010 to January 2011 due to his back disability. 5. After the completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any nerve damage or condition manifested by dizziness. Copies of all pertinent records should be made available to the examiner for review. Based on an examination, review of the record, and any tests or studies deemed necessary the examiner should provide opinions as to the following: (a.) Identify all diagnosed of conditions manifested by dizziness since September 2014, to include restless leg syndrome. (b.) For each currently diagnosed nerve condition, is it at least as likely as not related to an in-service injury, event, or disease, including exposure to chemicals at Johnston Atoll? (c.) For each diagnosed nerve condition is it at least as likely as not (1) proximately due to any service connected disability, or (2) aggravated (defined as any increase in disability) by any back disability? (d.) Identify all diagnosed conditions manifested by dizziness since September 2014. (e.) For each currently diagnosed condition manifested by dizziness, is it at least as likely as not related to an in-service injury, event, or disease, including exposure to chemicals at Johnston Atoll? (f.) For each diagnosed condition manifested by dizziness, is it at least as likely as not (1) proximately due to any service connected disability, or (2) aggravated (defined as any increase in disability) by any nerve condition? The examiner should consider and discuss as necessary (i) the Veteran’s lay statements that his duties in service on Johnston Atoll (a hazardous waste treatment, storage, and disposal facility) included inspecting “leaky bunkers” and wearing a protective suit; (ii) that the claimed nerve damage and dizziness began during service, and; (iii) that he had continued symptomatology since service? (Continued on the next page)   A complete rationale must be provided for any opinion offered. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel