Citation Nr: 1806683 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-05 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral ankle disability (claimed as tendonitis), to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317. 2. Entitlement to service connection for bilateral foot disability (claimed as plantar fasciitis), to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317 or as secondary to a bilateral ankle disability. 3. Entitlement to service connection for a bilateral knee disorder, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317 or as secondary to a bilateral ankle disability. 4. Entitlement to service connection for a respiratory disorder (claimed as chronic bronchitis), to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1987 to May 1990, and from October 1990 to October 1994. He served in the Southwest Asia Theater of Operations from December 1990 through April 1991. He also served a period of reserves duty from March 1985 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). The issues on appeal were remanded for additional development in May 2015 and February 2017. FINDINGS OF FACT 1. A bilateral ankle disability was not manifest during service; and, the preponderance of the evidence fails to establish any present disability as a result of service, including as a result of service in Southwest Asia. 2. A bilateral foot disability was not manifest during service; and, the preponderance of the evidence fails to establish any present disability as a result of service, including as a result of service in Southwest Asia. 3. A bilateral knee disorder was not manifest during service; and, the preponderance of the evidence fails to establish any present disability as a result of service, including as a result of service in Southwest Asia. 4. A respiratory disorder was not manifest during service; and, the preponderance of the evidence fails to establish any present disability as a result of service, including as a result of service in Southwest Asia. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1117, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2017). 2. The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1117, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2017). 3. The criteria for service connection for a bilateral knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1117, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2017). 4. The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1117, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 a duty to assist argument). There was substantial compliance with the prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.). Service Connection Claims Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Organic diseases of the nervous system are qualifying chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA regulations also provide that compensation will be paid for disability due to undiagnosed illness and medically unexplained chronic multisymptom illnesses to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability if that disability became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1) (effective before and after Oct. 24, 2017). 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 demonstrations of laboratory abnormalities. Chronic multisymptom illness of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) Fatigue, (2) Signs or symptoms involving skin, (3) Headache, (4) Muscle pain, (5) Joint pain, (6) Neurologic signs and 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). If signs or symptoms have been attributed to a known clinical diagnosis, service connection may not be provided under the specific provisions pertaining to Persian Gulf veterans. See VAOPGCPREC 8-98. "The very essence of an undiagnosed illness is that there is no diagnosis." Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006); see also Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004) (a Persian Gulf War veteran's symptoms "cannot be related to any known clinical diagnosis for compensation to be awarded under section 1117"). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2017). The Veteran contends that he has foot, ankle, knee, and respiratory disorders as a result of active service. In statements in support of his claims he asserted that he had bilateral ankle and knee disabilities due to having jumped out of helicopters and that his foot disabilities developed as a result of having been provided boots that were too large. He reported that he had been treated for bronchitis approximately five times in service and that he had experienced problems with his ankle since service. He also contends, alternatively, that he has foot and knee disorders secondary to a bilateral ankle disability. VA records show service connection is not established for any disability. Service treatment records include a March 1987 enlistment report of medical history indicating that the Veteran was involved in a motorcycle accident in 1984 and injured his left knee with no sequelae. In his report of medical history he denied any history of a trick or locked knee. An enlistment examination revealed a normal clinical evaluation of the lower extremities. An October 1987 report noted he complained of left knee pain and a November 1987 report noted he complained of bilateral knee pain when running. An assessment of patellofemoral pain syndrome was provided. An October 1988 report noted left heel discomfort related to exercise and an assessment of mild inflammation of the Achilles tendon. A January 1989 chest X-ray study revealed findings that were consistent with chronic asthma. A May 1990 report of medical history noted a complaint of foot trouble. An October 1990 enlistment examination from the Veteran's second period of service included a diagnosis of moderate pes planus. On VA foot examination in October 2010 the Veteran reported foot problems that began in basic training when he was provided boots that were too big. He stated his feet were better after he was given new boots, but that he still experienced pain and stiffness in the feet. The examiner provided a diagnosis of bilateral plantar fasciitis. It was noted that although there was a history of bilateral pes planus there was no pes planus identified upon the present clinical examination. X-ray studies revealed minimal calcaneal spurring, but no other definite abnormality. VA examination in June 2013 included diagnoses of plantar fasciitis with a date of diagnosis in 1988, bilateral knee strain with a date of diagnosis in 1987, and bilateral ankle strain with a date of diagnosis in 1985. The examiner found that it was less likely that foot, ankle, or knee disorders were incurred in or caused by the claimed in-service injury, event, or illness. It was noted that his plantar fasciitis was not caused by heel pain, a bilateral ankle condition, or the rigors of assault school. The disorder was noted to be an acute condition that resolved with rest and was not a chronic condition caused by service. It was further noted that there was no objective evidence of a chronic ankle condition and no evidence of an ankle injury that would lead to a chronic condition. Tendonitis of the ankles was noted to be an acute problem that resolved with rest and anti-inflammatory medication. The examiner found that the Veteran did not have a current disabling knee condition, did not have a significant injury to cause a chronic condition, and that his current knee condition was typical of normal joint wear and tear and aging. VA examinations in July 2015 included a diagnosis of acute bronchitis with a date of diagnosis in 1988. The Veteran reported he had bronchitis about every other year since discharge from service. The examiner, S.A.C., stated that bronchitis of that nature was likely due to viral infections and resolved with the use of inhalers, cough medicine, and rest. It was noted this was not caused by military service, that the Veteran did not have a chronic respiratory condition, and that his respiratory symptoms were not caused by environmental exposures in the Gulf War. VA examinations in May 2017, conducted by the previous examiner S.A.C., included diagnoses of acute bronchitis with a date of diagnosis in 1988, plantar fasciitis with a date of diagnosis in 1988, bilateral knee strain with a date of diagnosis in 1987, and bilateral ankle tendonitis with a date of diagnosis in 1985. The examiner noted the Veteran's reported history and previous treatment, but found that it was less likely that foot, ankle, knee, or respiratory disorders were incurred in or caused by the claimed in-service injury, event, or illness. It was noted that the Veteran had plantar fasciitis in service, but that he did not currently have any significant to the feet. He had tendonitis and ankle sprains in service that were not uncommon and should have resolved with rest. The current examination was basically normal with only mild degenerative change in the right ankle that was unlikely caused by an incident in service over 20 years earlier. The examiner also noted that the Veteran had patellofemoral syndrome in service that was an acute condition which resolved with rest and did not cause a chronic condition. Only minimal degenerative changes were noted the left knee and it was the examiner's opinion that there were no objective findings to indicate any significant disability or disability due to military service. It was further noted the Veteran did not have objective evidence of chronic asthma, did not use inhalers for a respiratory condition, and pulmonary function testing was normal. His reported bronchitis was found to be acute conditions typically brought about by a virus, without evidence of a chronic respiratory condition or a respiratory condition caused by Gulf War exposures or otherwise related to his military service. VA examinations in September 2017 included diagnoses of bilateral patellofemoral pain syndrome, bilateral plantar fasciitis, bilateral tendonitis, and bronchitis. The examiner, J.S.K., found that it was less likely that the Veteran's plantar fasciitis, ankle conditions, knee conditions, or bronchitis were incurred in or caused by the claimed in-service injury, event, or illness. It was noted that the foot, ankle, and knee conditions that occurred during service were associated with activity and resolved with rest. His occasional foot and ankle pain that was activity related, but he worked full time and his current foot and ankle issues were most likely related to age, obesity, and his current vocation. He had flares of bilateral patellofemoral pain syndrome that was resolved now that he was not running and marching, but would flare up depending on age, weight, and activity. It was the examiner's opinion that a long standing knee disability was not caused by military service. The examiner found that the Veteran's bronchitis was caused by a virus in service that had resolved, but that he had continued to get episodic colds and bronchitis with no respiratory issue in more than four years. It was noted he had no immune deficiency or respiratory condition as a result of military service. Based on the foregoing, the Board finds that chronic foot, ankle, knee, and respiratory disorders were not manifest during service and that the preponderance of the evidence fails to establish present foot, ankle, knee, and respiratory disabilities as a result of service, including as due to service in Southwest Asia. The overall evidence of record, including the opinions of the October 2010, June 2013, July 2015, May 2017, and September 2017 VA examiners, are found to be persuasive. The examiners are shown to have reviewed the evidence of record, and to have adequately considered the credible lay statements and reported symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Consideration has also been given to the assertions of the Veteran in support of his claims. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disabilities at issue are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board acknowledges that lay persons are competent to report observable symptoms, but there is no indication that the Veteran is competent to etiologically link any such symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise as to such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. In conclusion, the Board finds that service connection for foot, ankle, knee, and respiratory disorders is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against these claims. ORDER Entitlement to service connection for bilateral ankle disability (claimed as tendonitis), to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317, is denied. Entitlement to service connection for bilateral foot disability (claimed as plantar fasciitis), to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317 or as secondary to a bilateral ankle disability, is denied. Entitlement to service connection for a bilateral knee disorder, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317 or as secondary to a bilateral ankle disability, is denied. Entitlement to service connection for a respiratory disorder (claimed as chronic bronchitis), to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317, is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs