Citation Nr: A20008563 Decision Date: 05/14/20 Archive Date: 05/14/20 DOCKET NO. 190904-28947 DATE: May 14, 2020 ORDER Service connection for ischemic heart disease, to include as due to an undiagnosed illness, is denied. Service connection for a low back disorder is denied. Service connection for a left ankle disorder is denied. Service connection for a right ankle disorder is denied. FINDINGS OF FACT 1. The Veteran’s ischemic heart disease 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. The Veteran’s low back disorder 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. 3. A left ankle disorder clearly and unmistakably existed prior to active service and clearly and unmistakably was not aggravated by active service. 4. The Veteran’s right ankle disorder 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. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease, to include as due to an undiagnosed illness, 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 service connection for a low back disorder 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. 3. The criteria for service connection for a left ankle disorder have not been met. 38 U.S.C. §§ 1110, 1111, 1131; 38 C.F.R. §§ 3.303, 3.304. 4. The criteria for service connection for a right ankle disorder 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the rating decisions on appeal were issued in June 2015 and December 2017. Previously, the Veteran elected a higher-level review under the modernized review system of the claims for service connection for ischemic heart disease and disorders of the back and left and right ankles. 38 C.F.R. § 19.2(d). In a November 2018 rating decision, issued in January 2019, the Agency of Original Jurisdiction (AOJ) denied service connection for ischemic heart disease and disorders of the back and both ankles. In September 2019, the Veteran filed a notice of disagreement and requested direct review by the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a Veteran served for 90 days or more of active service, service incurrence shall be presumed for certain chronic diseases, including cardiovascular disease and arthritis, if the disease manifested to a compensable degree within one year from the date of separation from active service. While the disease need not be diagnosed within the presumption period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Ischemic heart disease, to include as due to undiagnosed illness The Veteran asserts that he has a heart disorder related to service, specifically an undiagnosed illness due to his service in the Persian Gulf. Service treatment records do not show any complaints, findings, or diagnoses of a heart disorder. Post service, private medical records show that the Veteran suffered a myocardial infarction in September 2010. A cardiology consultation report notes that he had multiple risk factors, including diabetes, hyperlipidema, obesity and chronic obstructive pulmonary disease, secondary to a former smoking habit. A February 2002 VA medical record shows that the Veteran has a family history of early onset heart disease (less than the age of 50), and a personal history of smoking in his teens. At a November 2011 VA examination, the Veteran reported that he served as a truck driver in Saudi Arabia, that he did not enter Iraq, and that his environmental exposure was limited to exhaust smoke. The examiner noted that the Veteran was diagnosed with ischemic heart disease and myocardial infarction in September 2010. The examiner noted that the Veteran’s risk factors for heart disease include hypertension, diabetes, a family history of parents with heart disease, secondary smoke exposure from his mother, hyperlidemia and being overweight, almost obese. The examiner opined that the Veteran’s ischemic heart disease was not caused by or a result of his Gulf War exposure. The examiner highlighted the Veteran’s multiple intrinsic risk factors and short duration of service in the Persian Gulf with minimal exposure to environmental factors. The examiner stated that, given the Veteran’s multiple intrinsic risk factors that would explain his myocardial infarction and ischemic heart disease at an early age, one must conclude that his heart condition is attributable to those known intrinsic risk factors rather than military environmental factors. In a November 2017 VA medical record, a physician expressed his opinion that the Veteran’s heart disease is related to his exposure to hazardous materials while in combat in Iraq. The physician noted that it has been established that certain toxins such as Agent Orange can cause coronary artery disease. The physician observed that there were numerous contaminants and toxic substances inhaled by service members from the oil fires in Kuwait and Iraq and also from the burn pits. Initially, as the Veteran’s claimed disorder has been diagnosed as ischemic heart disease, service connection for an undiagnosed illness associated with service in the Persian Gulf under 38 C.F.R. § 3.317 is not warranted. Thus, the remaining question is whether the Veteran’s ischemic heart disease had its onset during service or within one year thereafter or is otherwise related to such service. However, there is no evidence of heart disease during the Veteran’s active service or for 17 years after his discharge from active service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Board finds that the Veteran’s ischemic heart disease was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; and continuity of symptomatology is not established. Moreover, a VA examiner has opined that the Veteran’s ischemic heart disease is not related to active service, to include his environmental exposures in the Persian Gulf. The examiner explained that the Veteran has multiple intrinsic risk factors that would explain his myocardial infarction and ischemic heart disease at an early age. The examiner further indicated that those risk factors outweigh his minimal exposure to environmental factors during his short period of service in the Persian Gulf. As the examiner provided a sound rationale for the opinion, the Board finds the opinion to be of great probative value. Hayes v. Brown, 9 Vet. App. 67 (1996). The Board notes that a VA physician has opined that the Veteran’s heart disease is related to his exposure to hazardous materials while in combat in Iraq. However, that opinion is not well supported. The physician referred to studies that show that certain toxins such as Agent Orange can cause heart disease. However, there is no evidence that the Veteran was exposed to Agent Orange. The physician stated that there were numerous contaminants and toxic substances inhaled by veterans who served in the Persian Gulf. However, the examiner did not identify any specific contaminant or substance, or whether any such contaminant or substance has been linked to heart disease. There is also no indication that the physician considered the Veteran’s intrinsic risk factors including those noted in the VA medical records such as a family history of early onset heart disease. As such, the Board observes that the opinion is of little probative value. Id. When comparing the two medical opinions of record, the Board finds that this opinion is outweighed by that of the VA examiner. Thus, the Board finds that the Veteran’s ischemic heart disease is not otherwise etiologically related to an in-service injury or disease. The Board notes that a lay person is competent to give evidence about observable symptoms such as chest pain. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also notes that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, however, the record dates the onset of symptoms to 17 years after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his disability. Accordingly, the Board concludes that service connection for ischemic heart disease is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Low back disorder The Veteran asserts that he has a low back disorder related to service, specifically from carrying heavy chains and changing 80-pound truck tires. Service treatment records show that in October 1984 the Veteran complained of pain in the lower right back after moving furniture the prior night. The diagnosis was of a lumbosacral strain. There are no further complaints, findings or diagnoses of a low back disorder during the remainder of that period of service. The Veteran did not complain of any back pain during his second period of service including at the May 1993 separation examination, and evaluation of the spine was normal. Post service, a February 2002 VA medical record shows that the Veteran reported a history of injuring his low back while pulling a wood stove and being told that he had a lumbar hernia. At a November 2011 VA examination, the Veteran attributed his back pain to age, carrying heavy chains during the Gulf War, and to an injury in 2002 from pulling a wood stove. The examiner noted diagnoses of lumbago in 2002 and osteophytosis in 2008. The examiner noted that there is only one entry in the service treatment records relating to back pain, an October 1984 diagnosis of an acute lumbosacral strain. The examiner observed that two subsequent physical examinations indicate no recurrent back problems. The examiner noted that there is evidence of the 2002 back injury. The examiner observed that physical examination and x-rays findings are consistent with the normal aging process. The examiner stated that it is not possible to attribute the Veteran’s current mild low back symptoms to events in service. The examiner then opined that the Veteran’s low back disorder was not caused by or a result of service to include the in-service strain. A January 2016 private medical record shows the Veteran’s report of having low back pain for 10 years and having worked on lawn mowers as a mechanic. He also reported being a truck driver in service and having to quickly change 80-pound tires. He was diagnosed with segmental and somatic dysfunction of the lumbar region with myalgia. Given the above, while the Veteran may have injured his low back in service in 1984, he was diagnosed with a strain and he did not complain of any further back problems during the remainder of that period of service ending in February 1984. Thus, the evidence indicates that the in-service injury was acute and resolved prior to his discharge. There are also no complaints of back problems at any time during his second period of service from February 1986 to May 1989. Then, the Veteran injured his low back in 2002, about 9 years after his discharge from active service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson, 230 F.3d 1330. Thus, the Board finds that the Veteran’s low back disorder was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; and continuity of symptomatology is not established. The record also indicates that his current low back disorder is attributable to an intercurrent cause, that of the 2002 injury. Moreover, a VA examiner has opined that the Veteran’s low back disorder is not related to active service, to include the 1984 injury. That is the only competent medical opinion of record and, unfortunately, it is against the claim. Thus, the Board finds that the Veteran’s low back disorder is not otherwise etiologically related to an in-service injury or disease. While the Veteran is competent to give evidence about observable symptoms such low back pain, in this case, the record dates the onset of symptoms to 9 years after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. Layno, 6 Vet. App. 465; Buchanan, 451 F.3d 1331. As such, the Veteran is not competent to address the etiology of his disability. To the extent that the Veteran maintains that he experienced continuous low back pain since active service, he is not found to be credible. He did not complain of any further back pain during the remainder of his first period of service or at any time during his second period of service, and the May 1993 separation examination revealed a normal spine. There is no also medical evidence of a low back disorder after discharge for service until 2002, and that was due to a recent injury. Lastly, if he had experienced low back problems continuously since active service, it would be reasonable to expect that he would have filed a disability claim much sooner than in April 2011. Thus, the Board finds that any statements alleging or implying continuity of low back symptoms are not credible in this case. Continuity of symptoms is not established by either his own statements or competent evidence. Accordingly, the Board concludes that service connection for a low back disorder is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Left ankle disorder The Veteran asserts that he has a left ankle disorder related to service. The service treatment records are unclear as to whether he had broken his left or right ankle prior to service. A February 1983 report of history shows that it was his right ankle. A March 1983 report of history shows that it was his left ankle but examination revealed a scar on the right ankle. A March 1983 record shows a history of a left ankle fracture. Lastly a May 1993 report of history at separation shows that he broke his left ankle. Regardless, the only treatment for the left ankle was in January 1985 when he had pain and swelling. He did not report any left ankle problems at the May 1993 separation examination, and evaluation of the lower extremities was normal. A February 2002 VA initial medical evaluation note shows a history of a left ankle fracture and complaints of stiffness throughout the body but no abnormal swelling. At a November 2011 VA examination, conducted prior to the claim on appeal, the Veteran reported mild left ankle pain. X-rays of the left ankle revealed a deformity of the distal tibia from a healed fracture, but a normal ankle mortise and no fresh fracture or destructive lesion. The examiner indicated that complaints and findings were consistent with a history of old trauma and the normal aging process. At a May 2015 VA examination, the Veteran reported intermittent dull pain in the left ankle with a history of fracture at age 14 or 15 and a sprain in service in 1993 and being given 4 to 5 days of rest. He stated that he had no further problems with the ankle until the past couple of months. The examiner observed that the service treatment records are muddled with some notes suggesting a left ankle fracture existing prior to service and others suggesting a right ankle fracture existing prior to service. The examiner observed that the x-ray findings and interview with the Veteran established that he fractured his left ankle prior to service. The examiner concluded that the Veteran’s left ankle disorder clearly and unmistakably existed prior to service, and there is no indication that military service aggravated the disorder beyond its natural course. The presumption of soundness provides that a veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). To rebut the presumption of soundness, VA must show by clear and unmistakable evidence that (1) the disease or injury existed prior to service and (2) the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Here, while the Veteran’s service treatment records are unclear as to whether he had a left or right ankle disorder prior to entering service, an ankle disorder was nevertheless reported at service entrance. The Veteran’s history as reported at the November 2011 examination, along with X rays taken at that time, show that the fracture was of the left ankle. This is supported by the history as reported at the May 2015 examination, from which, along with the X ray findings, the examiner concluded that the Veteran’s left ankle disorder clearly and unmistakably existed prior to service. Thus, the Board finds that the Veteran’s left ankle disorder clearly and unmistakably existed prior to active service. As to whether the Veteran’s preexisting left ankle disorder was aggravated by active service, service treatment records only contain one mention of left ankle problems, in January 1985 when he complained of pain and swelling in the ankle for the past two days. He denied any trauma but stated that the pain started after an extended period of walking. Examination revealed no laceration or deformity. He was given a wrap and advised to apply heat. There are no further complaints, findings or diagnoses regarding the left ankle. The November 2011 examiner’s observation that the Veteran’s residuals of a left ankle fracture were consistent with a history of old trauma and the normal aging process shows that the condition was not aggravated by active service. X-ray findings of a normal ankle mortise and no destructive lesion support the examiner’s observation. Likewise, the May 2015 examiner, after reviewing all the evidence of record, concluded that the Veteran’s left ankle disorder clearly and unmistakably was not aggravated beyond its natural course by active service. Service treatment records showing only one complaint of left ankle pain, with no evidence of left ankle problems for 9 years after discharge, support this examiner’s conclusion. Thus, the Board further finds that the Veteran’s left ankle disorder was clearly and unmistakably not aggravated by active service. Thus, the Board finds that a left ankle disorder clearly and unmistakably existed prior to active duty and clearly and unmistakably was not aggravated by such service. Service connection for a left ankle disorder is therefore not warranted. Right ankle disorder The Veteran asserts that he has a right ankle disorder related to service. The service treatment records show that the Veteran twisted the right ankle in October 1991. Examination revealed pain and swelling. He was diagnosed with a sprain and a possible fracture. X-rays revealed no definite evidence of fracture, dislocation or bony abnormality. November 1991 records confirm that he had a sprain. He was placed on a profile of no running. While there are subsequent complaints regarding the right lower extremity, they were diagnosed as shin splints and heel bursitis. There are no further complaints, findings or diagnoses specific to the ankle. He did not report any right ankle problems at the May 1993 separation examination, and evaluation of the right lower extremity was normal. A February 2002 VA primary care initial evaluation note shows complaints of stiffness throughout the body but nothing specific to the right ankle. At a November 2011 VA examination, conducted prior to the claim on appeal, the Veteran reported mild right ankle pain. The examiner indicated that complaints and findings were consistent with the normal aging process. At a May 2015 VA examination, the Veteran reported no problems with the right ankle until the past couple of months. He denied any specific injury to the ankle but complained of intermittent dull pain. The examiner noted that the service treatment records show that the Veteran sprained his right ankle in October 1991 but there is no indication that it became a chronic condition. The examiner stated that the medical literature shows that recovery from first-degree sprains and first- and second-degree strains can be expected even without appropriate treatment. The examiner noted that the Veteran continued in service through 1993 with no evidence of chronic right ankle limitations and that current examination is normal. After a review of the records, interview and examination of the Veteran, and a search of the medical literature for the current understanding of the condition under investigation, the examiner opined that the Veteran’s right ankle disorder was not incurred in, or caused by, the claimed in-service injury. Given the above, while the Veteran may have injured his right ankle in service in October 1991 and treated through November 1991, he was diagnosed with a sprain and did not complain of any further right ankle problems during the remainder of service. After service, while he did not complain specifically of right ankle problems, he did complain of generalized stiffness in 2002, about 9 years after his discharge from active service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson, 230 F.3d 1330. Thus, the Board finds that the Veteran’s right ankle disorder was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; and continuity of symptomatology is not established. Moreover, a VA examiner has opined that the Veteran’s right ankle disorder is not related to active service, to include the 1991 injury. The opinion is supported by the November 2011 examiner’s observation that complaints and findings regarding the right ankle were consistent with the normal aging process. That is the only competent medical opinion of record and, unfortunately, it is against the claim. Thus, the Board finds that the Veteran’s right ankle disorder is not otherwise etiologically related to an in-service injury or disease. While the Veteran is competent to give evidence about observable symptoms such right ankle pain, in this case, the record dates the onset of symptoms to 9 years after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. Layno, 6 Vet. App. 465; Buchanan, 451 F.3d 1331. As such, the Veteran is not competent to address the etiology of his disability. To the extent that the Veteran is claiming to have experienced continuous right ankle pain since active service, he is not found to be credible. He did not complain of any further right ankle pain during the remainder of service, and the May 1993 separation examination revealed a normal right lower extremity. There is also no medical evidence of a right ankle disorder after discharge from service until 2002. Lastly, if the Veteran had experienced right ankle problems continuously since active service, it would be reasonable to expect that he would have filed a disability claim much sooner than in October 2014. Thus, the Board finds that any (CONTINUED ON NEXT PAGE) statements alleging or implying continuity of symptoms are not credible in this case. Therefore, continuity of symptomatology is not established by either the competent evidence or the Veteran’s own statements. Accordingly, the Board concludes that service connection for a right ankle disorder is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, Counsel 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.