Citation Nr: 20028042 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 14-29 044A DATE: April 22, 2020 ORDER Service connection for chronic lymphocytic leukemia (CLL) is denied. A rating in excess of 10 percent prior to October 18, 2017, and in excess of 20 percent from November 4, 2019, for left ankle strain, residuals of benign cortical cyst, is denied. A rating of 20 percent, but no more, for left ankle strain, residuals of benign cortical cyst, from October 18, 2017, to November 4, 2019, is granted, subject to the regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran’s CLL was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. Prior to October 18, 2017, the Veteran’s left ankle strain, residuals of a benign cortical cyst, was manifested by no more than moderate limited motion of the ankle. 3. As of October 18, 2017, the Veteran’s left ankle strain, residuals of a benign cortical cyst, has been manifested by marked limited motion of the ankle; this is the maximum schedular rating permitted for limited motion of the ankle; without evidence of ankylosis. CONCLUSIONS OF LAW 1. The criteria for service connection for CLL have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a rating in excess of 10 percent prior to October 18, 2017, and in excess of 20 percent from November 4, 2019, for left ankle strain, residuals of benign cortical cyst have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 3. The criteria for a rating of 20 percent, but no more, for left ankle strain, residuals of a benign cortical cyst from October 18, 2017, to November 4, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1973 to December 1976 and from March 1978 to February 1995. In October 2017, the Veteran had a videoconference hearing before the undersigned. A transcript of the hearing is associated with the claims file. The case was remanded by the Board in March 2018 for further development of the evidence. It has now been returned for further appellate consideration. Service Connection for CLL The Veteran contends that service connection should be established for CLL because he was noted to have an elevated white blood count while on active duty and that he had a growth on his left ankle that could be considered early manifestations of the disease. During the hearing before the undersigned, the Veteran stated that while on active duty he was treated for swollen lymph nodes and was placed on a shaving profile due to him having lumps in his neck that made it difficult to shave. He further stated he was told by his private doctor that elevated blood counts during service showed that he had leukemia at that time. Alternatively, it is contended that the Veteran’s CLL could be related to chemicals to which he was exposed during service. Review of the record shows that, while the Veteran did serve on active duty during the Vietnam Era, there is no evidence that he served in the Republic of Vietnam or any other area in which he would have been exposed to an herbicidal agent such as Agent Orange. Significantly, the Board notes that the Veteran has not contended that he was so exposed, although it has been contended that he was exposed to other chemicals such as trichloroethylene (TCE) during service, which he has asserted could be related to the development of CLL. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of CLL as evidenced by a February 2008 VA treatment record. Cancer is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Evidence of record shows that during treatment while in service in October 1983, the Veteran had an elevated white blood count of 19.58. Additional blood work obtained in February 1989 showed a white blood count of 7.1, which was noted to be within normal limits. On examination for retirement from service, in December 1994, an abnormality of the skin and lymphatics was noted as pseudofolliculitis barbae (PFB) with beard of the face and neck. As noted, post-service medical evidence shows that the Veteran’s CLL was diagnosed in early 2008 and that he has been in receipt of treatment for this disease since that time. In support of the claim, a September 2017 private physician reported the Veteran’s treatment for CLL. The physician then stated that as the Veteran had been in the military during the Vietnam era, it was “likely as not” that the CLL stemmed from his exposure to Agent Orange. The physician opined, “[H]is CLL is more likely than not to be a result of his exposure.” A second medical opinion, dated March 2020, and received in support of the Veteran’s claim was by his treating VA physician. It was noted that the Veteran had been diagnosed with CLL since 2012. The physician stated that he had reviewed the Veteran’s record from the military, including the blood count from 1983 and an X-ray study of the Veteran’s ankle from 1985, and after reviewing those records, it was his opinion “more likely than not that [the Veteran’s CLL] may have started when he was in military.” An examination was conducted by VA in September 2019 in order to ascertain whether the Veteran’s CLL could be related to service. After examination and review of the record, the examiner opined that the Veteran’s lymphatic abnormalities, including cancer, were less likely than not incurred in or caused by military service, to include the lymphatic conditions during service. The rationale was that a review of the record showed that the Veteran was treated for a suspected reaction to a flu shot and that lymphadenopathy was noted, and symptomatic treatment was provided. There were no additional evaluations that noted lymphadenopathy while the Veteran was in service. The examiner explained that the initial cervical lymphadenopathy was not supportive of CLL, and there were no further evaluations with chronic lymphadenopathy noted in the cervical, supraclavicular, or axillary regions. These, the examiner pointed out, are the most commonly affected sites for lymph node enlargement. Regarding exposure to TCE, the examiner noted that the Veteran reported having been exposed to TCE while in service. Cancer epidemiology for TCE has grown in recent years with several large, well-designed studies being published. A recent analysis of the available epidemiological studies reported that TCE exposure was associated with several types of cancers in humans, especially kidney, liver, cervix and lymphatic system with the strongest association being with kidney cancer. The examiner went on to state that the results were supported by recent molecular epidemiology studies showing specific renal cell mutations found primarily in renal cell carcinoma patients exposed to TCE. As to the elevated white blood count found while the Veteran was on active duty, the examiner noted that the reason for the testing was unknown and there was no associated note for a medical evaluation. As to the Veteran’s reported cervical condition, the examiner noted that such conditions were associated with a suspected infection and that Dimetapp, Guaifenesin and aspirin were prescribed. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. While the Board may not ignore a medical opinion, it is certainly free to discount the relevance of a physician’s statement, as it has done in this case. See Sanden v. Derwinski, 2 Vet. App. 97 (1992). Upon review of the two medical opinions that support the Veteran’s claim of service connection for CLL, the Board finds that neither is sufficient for this purpose. In this regard, it is noted that the 2017 opinion is that the CLL is related to exposure to the herbicidal agent, Agent Orange, while the Veteran was on active duty. As stated above, however, the record does not show that the Veteran had such exposure, nor has the Veteran made that contentions. Specifically, review of the Veteran’s service personnel records shows no service in the Republic of Vietnam, the Demilitarized Zone (DMZ) of the Republic of Korea, or in Thailand while herbicidal agents were utilized. While the Veteran did serve in Thailand, this was not until the mid-1980’s, long after the cessation of the use of herbicidal agents such as Agent Orange. As such, the 2017 opinion has no bearing on this case. As to the March 2020 VA physician’s opinion, the Board notes that this was phrased in terms that are speculative in nature suggesting that the disease “may” be related to service. In particular, while the physician’s medical opinion began with “more likely than not,” the conclusion was that it “may have started” when the Veteran was in service. The Court has held that a medical opinion expressed in terms of “may,” also implies “may or may not” and that this is too speculative to establish a plausible claim. Obert v. Brown, 5 Vet. App. 30 (1993). As such, this opinion is similarly lacking in probative value. Thus the Board gives more probative weight to the 2019 VA medical opinion, which establishes that any symptoms that could be considered to be early manifestations of CLL were instead attributable to intercurrent causes such as a flu shot, infection, or other disability that was not described in the Veteran’s service treatment records. The Board notes that the Veteran did have a normal white blood count several years after the elevation noted in 1983 and that the lymphatic abnormality noted on examination for retirement from service was stated to be PFB. The 2019 VA examiner’s rationale that exposure to TCE would most likely cause renal cell carcinoma is significant in that the Veteran has no renal complaints. The evidence of record shows that the Veteran did not manifest a disability shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The treatment records show the Veteran was not diagnosed with CLE until early 2008, years after his separation from service and years outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of swollen glands in service and thereafter, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of CLE as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Increased Rating for Left Ankle Strain, Residuals of Benign Cortical Cyst In a June 2011 rating decision, the Veteran was denied a rating in excess of 10 percent for his service-connected left ankle strain, residuals of benign cortical cyst (left ankle strain). After he perfected an appeal of that decision, the Veteran testified at a hearing before the Board on October 18, 2017. Following that hearing, the Board remanded the claim in Marcy 2018 for another VA examination. Based on the findings reported during that examination, the rating of the Veteran’s left ankle strain was increased to 20 percent, effective the date of the examination, November 4, 2019. See December 2019 rating decision. As the Veteran continues to express dissatisfaction with the ratings assigned for all stages on appeal, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). A review of the claims files show that an examination was conducted by VA in October 2010. At that time, it was reported that the Veteran had been diagnosed with left ankle strain associated with benign cortical cyst. The Veteran reported weakness, stiffness, swelling, giving way, lack of endurance, locking and pain. He did not experience heat, redness, fatigability, deformity, tenderness, drainage, effusion, subluxation or dislocation. He reported flare-ups as often as three times per week that were precipitated by physical activity and occurred spontaneously. This was alleviated by Tramadol and Hydrocodone. During flare-ups, the Veteran experienced functional impairment that he described as difficulty in parking decks, climbing stairs, and limitation of motion that made it difficult to walk. He also reported difficulty with standing and walking. The Veteran described his job requirements as needing to stand or walk throughout an eight-hour shift. He stated that he had not had any incapacitating episodes over the past 12 months. On examination of the left ankle, there were no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding of movement. There was no deformity or ankylosis. Range of motion of the left ankle was dorsiflexion to 20 degrees and plantar flexion to 40 degrees. Repetitive motion was possible, without additional limitation of motion. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. X-ray studies of the left ankle were within normal limits, with no indication of malunion of the os calcis or astralgus. The examiner remarked that the left ankle condition had no effect on the Veteran’s usual occupation, but that his daily activity was limited in that he was unable to exercise. Another examination was conducted by VA in August 2017. The diagnosis was left ankle strain, residuals of benign cortical cyst. The Veteran reported having chronic pain that he described as a toothache with left foot weakness that required a brace. Flare-ups were described as weakness with prolonged walking. Functional loss was described as having difficulty walking upstairs. Range of motion of the left ankle was dorsiflexion to 15 degrees and plantar flexion to 40 degrees. Loss of range of motion did not contribute to functional loss. The Veteran did evidence pain on dorsiflexion and on plantar flexion and with weight bearing. There was point tenderness with palpation, but no objective evidence of crepitus. The Veteran was able to perform repetitive use testing without additional functional loss or loss of range of motion. The Veteran was not examined immediately after repetitive use over time and the examiner could not state whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during flare-ups without resorting to speculation because it was found that an actual joint examination and measurement would be warranted to provide an opinion on functional impairment. Muscle strength testing was normal. There was no muscle atrophy or ankylosis. There was no instability of the left ankle joint. The Veteran utilized a brace on a regular basis. X-ray studies showed minimal hypertrophic degenerative changes at the talonavicular joint and a sclerotic mass that might represent a healed fibrous cortical defect. There was no functional impact on the Veteran’s employment status. The Veteran did have pain on passive range of motion testing, but there was no evidence of pain on non-weight bearing. During the hearing on October 18, 2017, the Veteran testified that he had instability in his ankle that had caused him to fall three or four times during the past year. He and his spouse testified that he often needed assistance to function and, at times, was unable to walk. He reported using a brace that was designed by a private medical care provider. Most recently, an examination was conducted by VA in November 2019. The diagnosis was degenerative arthritis of the left ankle. The Veteran described current symptoms as pain, stiffness and occasional swelling. He used an ankle brace, hydrocodone, Lyrica and Tylenol. He described flare-ups as stiffness and pain and functional loss as having difficulty walking at times. Range of motion of the left ankle was dorsiflexion to 0 degrees and plantar flexion to 15 degrees. The Veteran stated that the decreased rating of motion contributed to functional loss with running. Pain causing functional loss was noted on dorsiflexion. There was no localized tenderness, pain on weight bearing, or crepitus. The Veteran was able to perform repetitive use testing without additional loss of range of motion or functional loss. While the examination was not performed during a flare-up or with repeated use over time; pain, weakness, fatigability, and incoordination significantly limited functional ability with repeated use over a period of time and during a flare-up, with range of motion described as the same with dorsiflexion to 0 degrees and plantar flexion to 15 degrees. Muscle strength testing was normal, without muscle atrophy. There was no ankylosis and no instability or dislocation of the left ankle suspected. The Veteran utilized a brace on the left ankle on a constant basis. There was no indication that function of the lower extremity was so diminished as to be equally well served by amputation with prosthesis in place. Degenerative or traumatic arthritis was documented by imaging studies. Functional impact was described as being unable to walk for prolonged periods. There was no objective evidence of pain on non-weight bearing and passive range of motion was identical to active range of motion. The Veteran’s left ankle disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. A rating for an ankle disability may be assigned a higher rating under Diagnostic Code 5270, with 30 percent rating warranted for ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between zero degrees and 10 degrees. A maximum 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Prior to October 18, 2017 The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the left ankle disability prior to October 18, 2017. The Board acknowledges the Veteran’s lay reports of symptoms and that he described as difficulty in parking decks, climbing stairs, and limitation of motion that made it difficult to walk as well as difficulty with standing and walking. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating marked limited motion/limitation so distinctive or emphasized that it would approximate marked limited motion. On examinations in 2010 and in 2017, the Veteran was able to plantar flex to 15 degrees and dorsiflex to 40 degrees, which is close to normal ranges for the ankle joint. 38 C.F.R. § 4.71, Plate II. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. In this regard, the examiner specifically stated that there was no evidence of ankylosis or malunion of the os calcis or astragalus. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 10 percent for the Veteran’s left ankle disability prior to October 18, 2017. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. From October 18, 2017 As noted above, the Veteran’s left ankle strain was increased to 20 percent, effective the date of the VA examination conducted in November 2019. See December 2019 rating decision. This increased rating was also assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. As the Veteran is in receipt of the highest schedular rating for limited motion of the ankle, there is no basis to award a higher rating absent ankylosis of the ankle joint. On examination in November 2019, it was specifically noted that there was no indication of ankylosis. As the Veteran already has the maximum schedular disability rating the appeal for a higher rating than 20 percent is denied. It is found, however, that the Veteran’s credible complaints of increased left ankle disability at the time of the November 2017 Board hearing mark the earliest date upon which the increased rating may be documented. As such, the 20 percent rating is granted as of October 18, 2017; to this extent, the appeal is allowed. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.