Citation Nr: 20070004 Decision Date: 10/28/20 Archive Date: 10/28/20 DOCKET NO. 20-06 235 DATE: October 28, 2020 ORDER Entitlement to service connection for right ankle disability is denied. Entitlement to service connection for left ankle disability is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. A right ankle disability was not manifest during service or within one year of separation from service and is not otherwise attributable to service. 2. A right ankle disability is not caused or aggravated by a service-connected disease or injury. 3. A left ankle disability was not manifest during service and is otherwise unrelated to service. 4. A left ankle disability is not caused or aggravated by a service-connected disease or injury. CONCLUSIONS OF LAW 1. A right ankle disability was not incurred in or aggravated by service, and right ankle arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. A right ankle disability is not proximately due to, aggravated by, or the result of service-connected disease or injury. 38 C.F.R. §§ 3.102, 3.310. 3. A left ankle disability was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.102, 3.303. 4. A left ankle disability is not proximately due to, aggravated by, or the result of service-connected disease or injury. 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1996 to October 2001. This appeal stems from an April 2018 rating decision denying service connection for obstructive sleep apnea and left and right ankle disabilities. The Veteran filed a Notice of Disagreement in January 2019 and selected the decision review officer review process, and the Regional Office (RO) issued a Statement of the Case (SOC) for these three issues on December 3, 2019. The RO issued an SOC for twelve separate issues on December 4, 2019. On December 21, 2019, VA received a Form 9 stating that the Veteran wished to appeal all the issues listed on the SOCs that his local VA office had sent him. In pages appending the Form 9, the Veteran’s representative made arguments specifically relating to the twelve issues addressed in the December 4, 2019 SOC. The Board will not address these twelve issues in the instant decision as those issues are currently before the Board as part of a separate appeal stream under the Appeals Modernization Act appeal system. On December 21, 2019, the Veteran also submitted a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) for obstructive sleep apnea and left and right ankle conditions. However, the Veteran did not select a Board review option. VA notified him and his representative of the error in a letter dated February 2, 2020, informing them that the appeal could not be processed until a new Form 10182 was received with an appeal option selected. No new Form 10182 has been received regarding obstructive sleep apnea and left and right ankle conditions. As such, the December 21, 2019 VA Form 10182 relating to obstructive sleep apnea and ankle conditions is invalid. The Board will consider the December 21, 2019 Form 9 valid as it relates to the instant claims, and the claims will be adjudicated under the legacy appeal system. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110. In general, to establish a right to compensation for a present disability, a Veteran 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Certain chronic diseases such as arthritis will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309 (a). Service connection may also be warranted for a Persian Gulf Veteran who (1) exhibits objective indications; (2) of a qualifying chronic disability; (3) that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War, 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 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (2018); see also Gutierrez v. Principi, 19 Vet. App. 1 (2004). The term “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders. 38 C.F.R. § 3.317 (a)(2). 1. Service connection for right ankle disability. 2. Service connection for left ankle disability. The Veteran initially claimed service connection for joint pain, including bilateral ankle pain, as due to exposures during his service in Southwest Asia during the Gulf War. See September 2017 VA Form 21-526EZ Application for Disability Compensation. Alternatively, the Veteran’s representative asserts that service connection for left and right ankle disabilities is warranted on a direct basis and as secondary to the Veteran’s service-connected bilateral pes planus and plantar fasciitis. See February 2019 Notice of Disagreement. The Board will address each theory of entitlement in turn below. The Veteran’s service treatment records do not document any complaints, symptoms, treatments, or diagnoses relating to the ankles. The Veteran had mild asymptomatic pes planus at entry and complained of painful tight combat boots in January 1997. The Veteran’s feet and lower extremities were evaluated clinically normal on the April 2001 separation examination, although a tender right foot metatarsal was noted. The Veteran reported a history of swollen and painful joints, broken bones, and foot trouble on the April 2001 Report of Medical History. However, the treating physician noted that the swollen and painful joints were swollen joints in the Veteran’s right pinky finger due to a fractured fifth finger metacarpal, and that the Veteran had fractured the fifth metatarsal in his right foot. The physician also noted the Veteran had hurt the ball of his foot. See April 2001 Report of Medical History. There was no reference to the Veteran’s ankles at separation. Post-service treatment records show in August 2014 the Veteran complained of pins and needles in his feet up to just above his ankles. Bilateral ankle swelling was noted. Ankle joint range of motion testing showed adequate dorsiflexion and plantarflexion bilaterally with no pain at the end of range of motion, no crepitus, and no pain with palpation. No diagnosis for the ankles was provided. See August 2014 VA Podiatry Consultation. A June 2016 VA physical therapy note shows the Veteran complained of sore ankles and calves and a diagnosis of bilateral short achilles tendon (acquired). The list of functional problems included chronic bilateral ankle pain and decreased bilateral ankle range of motion. The Veteran was afforded a VA examination for the ankles in December 2017. The Veteran reported neuropathy that goes from his feet to the knee on both legs, and that for the past two to three years he had painful popping in both ankles when he goes up and down stairs or goes to a standing position. He reported constant aching pain in both ankles, and that the popping sensation caused sharp pain and that his ankles feel will feel weak then stiffen up. Dorsiflexion and plantar flexion were limited in both ankles, there was pain with weightbearing and crepitus, and there was tenderness of the lateral malleolus. The examiner determined the Veteran's ankle pain, decreased range of motion, and functional loss falls under the category of an undiagnosed illness, and that there was no diagnosis that fits his presentation and physical exam related to his ankles. See December 2017 Ankle Conditions DBQ. The examiner opined that that the Veteran’s bilateral ankle pain was at least as likely as not incurred in or caused by service, explaining that the Veteran had no issues related to the claimed condition prior to service, that the onset of the condition was during service as documented in the Service Medical Records, and that there was evidence of current, chronic, and continuous treatment and care. See December 2017 Medical Opinion DBQ. He was provided another VA ankle examination in April 2018 to address whether the Veteran’s joint pain was due to an undiagnosed illness or a medically unexplained chronic multi-symptom illness. The examiner diagnosed the Veteran with bilateral ankle strains and determined in part that there is no evidence for a chronic disability pattern related to the Veteran’s ankles. The examiner had diagnosed the Veteran with ankle strains and determined this represented a condition with a clear and specific etiology and diagnosis. The examiner also noted that the Veteran had hemochromatosis which is well known to cause arthralgias. The examiner also determined the Veteran’s ankle strains were acute, self-limiting, and portend to no chronic sequelae. See April 2018 Gulf War Medical Examination The Board notes that the April 2018 examination and medical opinion also addressed the Veteran’s back, knee, and hip disabilities. The Veteran’s claims for service connection for a back disability, bilateral knee disabilities, and bilateral hip disabilities are currently pending before the Board in a separate appeal stream and will not be addressed in this decision. The Veteran had MRIs on both of his ankles in April 2019. The right ankle MRI showed significant thickening of the anterior ankle ligament, likely due to chronic injury, slight inflammation of the posterior tibialis tendon and flexor hallucis longus tendon sheath, and mild ankle, subtalar joint, and other rearfoot joint arthritis. See April 22, 2019 MRI Findings. The Veteran’s VA podiatrist noted that there is mild arthritis of all the joints of the right foot, with prior ankle injury with residual joint damage to the talar dome and tendinitis and ankle joint ligament, showing history of healed injury. The left ankle MRI showed tenosynovitis of the posterior tibialis, flexor digitorum longus, and flexor hallucis longus tendons. Otherwise the ankle and plantar fascia were normal. See April 5, 2019 MRI Report. There is current disability of the left and right ankles as established in the VA examinations and subsequent VA treatment records. The question for the Board is whether any current left and right ankle disorder manifested in service, within an applicable presumptive period, or whether such disorders are otherwise related to service, to include already service-connected injury or disease. For the following reasons, the preponderance of the evidence is against the claims for service connection for left and right ankle disabilities. The Veteran initially claimed his joint pain, to include his bilateral ankle pain, was due to exposures during the Gulf War. The Board notes that the Veteran had few, if any, diagnoses relating to his ankles for many years. However, the Veteran was assessed with bilateral ankle strains at the April 2018 VA examination. In April 2019, the Veteran’s VA podiatrist diagnosed the Veteran with tenosynovitis of the left posterior tibialis, flexor digitorum longus, and flexor hallucis longus tendons, and thickening of the right anterior ankle ligament due to injury, inflammation of the right posterior tibialis tendon and flexor hallucis longus tendon sheath, and mild right ankle arthritis. The Veteran’s left and right ankle joint pain has been attributed to known clinical diagnoses. The ankle pain is not attributable to any medically unexplained multisystem illness within the meaning of the Gulf War Illness law. Therefore, the Gulf War illness provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are not applicable. Arthritis of the right ankle is a chronic disease under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309. However, right ankle arthritis did not manifest in service or within a presumptive period, and continuity of symptomatology is not established. Right ankle pathology was not “noted” during service and he did not have characteristic manifestations of the disease process during service or within one year of separation. Service treatment records are negative for any ankle problems, and although the Veteran reported joint pain at separation, the attending physician clarified the joint pain was related to the Veteran’s right pinky finger and feet. There are no medical records prior to the aforementioned 2014 VA treatment records indicating the Veteran had any right ankle pain or other symptoms. At the December 2017 VA examination, the Veteran reported that his bilateral ankle symptoms had begun a few years prior. Mild right ankle arthritis was first identified in April 2019. The inapplicability of these presumptions does not preclude the Veteran from establishing service connection for his ankle disabilities on a direct or secondary basis. However, service connection for a left or right ankle disability is not warranted under any theory of entitlement. Regarding direct service connection, the Board notes that the Veteran has not generally argued that direct service connection for his bilateral ankle disabilities is warranted. Although the Veteran has routinely reported foot symptoms since service, he has not generally contended that he has had right ankle pathology during service. His arguments have typically focused on attributing his ankle pathologies to an undiagnosed illness or a medically unexplained chronic multi-symptom illness. The evidence is against a finding left and right ankle disabilities were incurred during service. The service treatment records are silent as to any ankle injuries, symptoms, or disorders. No ankle pain or problems were noted on the separation examination or Report of Medical History. VA treatment records show the Veteran first reported pain in his ankles in 2014. At the December 2017 VA examination, the Veteran reported that his bilateral ankle pain and popping had begun a few years prior. The Board acknowledges the positive December 2017 nexus opinion. To the extent the examiner determined the Veteran’s bilateral ankle pain was due to an undiagnosed illness, the Board reiterates that the Veteran’s left and right ankle symptoms have since been attributed to known clinical diagnoses following treatment and diagnostic testing, and the laws and regulations pertaining to Gulf War illnesses are inapplicable. The December 2017 examiner’s opinion also appears to address direct service connection for the Veteran’s left and right ankle disabilities. The examiner determined the Veteran’s bilateral ankle pain was at least as likely as not incurred in or caused by service, explaining that the Veteran had no issues related to the claimed condition prior to service, that the onset of the condition was during service as documented in the Service Medical Records, and that there was evidence of current, chronic, and continuous treatment and care. However, this opinion is based on an inaccurate factual premise. The Veteran’s service treatment records are absent any complaints or treatments relating to his ankles. Post-service treatment records show the first post-service complaints of ankle pain date from 2014, indicating that the Veteran had not received continuous treatment and care for ankle pain following service. Furthermore, the December 2017 examination report shows the Veteran reported that he had only experienced ankle symptoms for two or three years prior to the examination. As such, the December 2017 opinion is of little probative value. See Reonal v. Brown, 5 Vet. App. 458 (1993) (stating that “[a]n opinion based upon an inaccurate factual premise has no probative value”). There is no other probative, positive medical opinion of record that addresses the Veteran’s left and right ankle disabilities. The Board has considered the Veteran’s lay statements. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of a disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to report in-service events and symptoms and when hearing loss occurred, as these are lay observable. However, the Veteran has not typically reported that his left or right ankle symptoms began during his service. rather, his arguments have focused on attributing his ankle pain to an undiagnosed illness or a medically unexplained multi-symptom illness. Again, the service treatment records are absent any notation of ankle symptoms or problems, and the first report of any before 2014. Furthermore, at the December 2017 VA examination the Veteran reported that his ankle symptoms had begun two to three years prior to the examination. Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at 1336-37. However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. A negative inference may also be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent the Veteran and his representative contend the Veteran had a disease or injury affecting the ankles during service, or that his current ankle disabilities are otherwise attributable to service, such lay assertions are outweighed by the negative medical record and absence of ankle problems prior to 2014. There is little to no credible evidence of record suggesting the Veteran’s bilateral ankle disabilities were incurred during service. The preponderance of the evidence is against finding a left or right ankle disability was incurred during his service, or that a nexus exists between current gastrointestinal disorder and service. service connection for left and right ankle disabilities on a direct basis is denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Finally, the Veteran’s representative contends that service connection for left and right ankle disabilities is warranted as secondary to the Veteran’s service-connected bilateral pes planus and plantar fasciitis. See February 2019 NOD. Service connection is warranted on a secondary basis for disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (b). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). After reviewing the evidence, the Board finds that service connection for left or right ankle disabilities as secondary to service-connected bilateral pes planus and plantar fasciitis is not warranted. Regarding secondary service connection, the Veteran has provided no evidence beyond his representative’s suggestion that the left and right ankle disorders are secondary to his service-connected foot disabilities. The Board finds that neither the Veteran nor his representative are Veteran is competent to address this etiological issue. Making such a connection would require specialized education, training, or experience that the Veteran and his representative have not been shown to possess. See 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). These statements are not probative. There is little evidence supporting the Veteran’s claim. VA treatment records do show the Veteran has been treated for both foot and ankle problems at the same time, and that he has had physical therapy for his bilateral foot and ankle problems. However, there are no relevant medical records associated with the claims file that suggest the Veteran’s ankle disabilities are associated with (causation or aggravation) another service-connected disease or injury. There are no probative lay statements or medical opinions of record. The Board acknowledges that a VA opinion has not been provided regarding whether the Veteran’s ankle disabilities are proximately due to or were aggravated by his service-connected pes planus and plantar fasciitis. Under 38 C.F.R. § 3.159 (c)(4), VA will provide a medical examination or opinion if the information and evidence of record does not contain sufficient medical evidence for VA to make a decision on the claim but: (1) contains competent lay or medical evidence that the claimant has a current diagnosed disability, or persistent or recurring symptoms of disability; (2) establishes that the Veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in § 3.309, § 3.313, § 3.316, and § 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (3) indicates that the claimed disability or symptoms may be associated with another service-connected disability. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran has currently diagnosed disabilities of the left and right ankle and has had persistent recurring symptoms of both ankles. He has arthritis of the right ankle and he is service connected for bilateral pes planus and plantar fasciitis. However, the only evidence suggesting the Veteran’s ankle disorders are related to his service-connected pes planus and plantar fasciitis are his representative’s conclusory assertions. There is little competent or credible evidence suggesting the Veteran’s ankle pathologies are associated with a service-connected disability. There representative’s conclusory lay statements alone are insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Remanding the Veteran’s claims to obtain a VA opinion addressing secondary service connection for the Veteran’s ankle disabilities is not warranted. In sum, there is no probative evidence suggesting that the Veteran’s left or right ankle disabilities are proximately due to, the result of, or are aggravated by his service-connected foot disabilities. Remand is not warranted to obtain a new VA medical opinion. The preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for left and right ankle disabilities as secondary to his service-connected foot disabilities, and the claim must be denied. 38 C.F.R. § 3.310. There is insufficient competent and probative evidence linking the Veteran’s left and right ankle disabilities to his service. The Gulf War presumption is inapplicable as the Veteran’s symptoms have been attributed to known diagnoses. Service treatment records establish that there were no documented complaints of or treatments for any ankle problems in service. The lower extremities were normal at separation. Although the Veteran reported joint pain at separation, such pain related to his feet and right hand only, with no reference to either ankle. The first documented complaints relating specifically to the ankles date from 2014, many years following separation from service. there is little evidence showing the Veteran’s ankle disabilities are proximately due to, aggravated by, or are the result of service-connected disease or injury. Furthermore, right ankle arthritis did not manifest during service or within one year of service. The preponderance of the evidence is against the claims and service connection for left and right ankle disabilities is denied. REASONS FOR REMAND 3. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran seeks service connection for obstructive sleep apnea. He primarily contends the sleep apnea is secondary to his service-connected persistent depressive disorder with anxious distress. October 2010 VA mental health treatment records show complaints of poor sleep and difficulty maintaining sleep. The Veteran was diagnosed with mild to moderate obstructive sleep apnea following a November 2012 VA polysomnogram. More recent records show the Veteran still uses a CPAP machine at night for his sleep apnea. The Veteran was provided a VA sleep apnea examination in December 2017. The examiner determined that it is less likely as not that the Veteran has a chronic disability pattern related to sleep apnea due to Gulf War exposure. The examiner explained there was no current medical literature linking obstructive sleep apnea with exposure to the Gulf War environment, and the condition had a clear and specific etiology and diagnosis. See December 2017 Sleep Apnea Examination Report. The Regional Office requested an addendum examination and opinion to determine whether the Veteran’s sleep apnea was proximately due to or the result of persistent depressive disorder with anxious distress. See February 2018 Examination Inquiry. The new examination and opinion were provided in April 2018. The VA examiner determined the Veteran’s sleep apnea was less likely than not proximately due to or the result of persistent depressive disorder with anxious distress. The examiner explained there is no evidence for a nexus between the Veteran’s sleep apnea and his service-connected depressive disorder and anxious distress and noted that risk factors relevant to the Veteran for sleep apnea, are male sex, age 40 or above and obesity. The examiner determined obesity was the most likely etiology for his obstructive sleep apnea. See April 2018 VA Sleep Apnea Examination Report. The Board finds the April 2018 VA opinion needs to be supplemented. The opinion does not address whether the Veteran’s obstructive sleep apnea is aggravated by his service-connected persistent depressive disorder with anxious distress. In addition, the examiner did not address the Veteran’s documented in-service sleep problems, which were linked to his in-service psychiatric symptoms, including depression. In addition, in a December 2019 communication the Veteran’s representative cited two Internet articles and a 2005 Annals of General Psychology article suggesting that a CDC study had shown an association between depression and sleep apnea. A supplemental VA opinion should be obtained addressing whether the Veteran’s sleep apnea is aggravated by his service-connected persistent depressive disorder with anxious distress. The examiner must also address the treatise evidence the Veteran has provided in support of his claim purporting to show a link between depression and sleep apnea. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate medical professional to provide an addendum opinion on the nature and etiology of the Veteran’s obstructive sleep apnea. The examiner must opine whether obstructive sleep apnea is at least as likely as not (50 percent or greater probability) proximately due to or aggravated by his service-connected persistent depressive disorder with anxious distress. A rationale must be provided for every opinion stated. The examiner must consider the Veteran’s documented medical history, assertions, and reported symptoms. The examiner should address the Veteran’s documented in-service sleep difficulties and the medical journal articles submitted in December 2019. If there is aggravation, a baseline should be provided. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.