Citation Nr: 21003561 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 15-21 495 DATE: January 22, 2021 ORDER Entitlement to service connection for an obstructive sleep apnea disability is dismissed. Entitlement to service connection for a right wrist disability is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a left hip disability is granted. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a left ankle disability is denied. FINDINGS OF FACT 1. During a July 2019 Board hearing before the undersigned, prior to promulgation of a decision in the appeal, the Veteran withdrew the appeal for service connection for sleep apnea. 2. The Veteran’s right wrist sprain was not incurred during his ACDUTRA period and is not etiologically related to his periods of active duty service. 3. The Veteran’s cervical spine disability was not incurred during his ACDUTRA period of service and is not etiologically related to an in-service event, injury, or disease throughout his periods of active duty service. 4. Resolving all doubts in favor of the Veteran, his left hip disability is etiologically related to service. 5. The Veteran does not have a current diagnosis of a right ankle disability. 6. The Veteran does not have a current diagnosis of a left ankle injury. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of service connection for an obstructive sleep apnea disability by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for service connection for a right wrist disability have not been met. 38 U.S.C. §§ 1112, 1113,1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 3. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1112, 1113,1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 4. The criteria for service connection for a left hip disability have been met. 38 U.S.C. §§ 1112, 1113,1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 5. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1112, 1113,1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 6. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1112, 1113,1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army National Guard. He had a period of active duty training (ACDUTRA) from October 2001 to March 2002. The Veteran also had active duty service from September 2004 to August 2005 and from August 2008 to October 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran, through his authorized representative, has withdrawn his service connection claim for an obstructive sleep apnea disability (OSA) at a July 2019 Board hearing. The consequences for doing so were explained on the record and the appellant indicated her understanding of such. Thus, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Certain chronic diseases are subject to presumptive service connection if it manifests 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 C.F.R. §§ 3.307 (a)(3), 3.309(a). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 C.F.R. § 3.304 (d). Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case shall be recorded in full. 38 U.S.C. § 1154 (b); When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Right wrist The Veteran seeks service connection for a right wrist condition. Specifically, he asserts that he noticed pain in the right wrist while engaging in heavy training or push-ups in the military and that the pain first started during his first period of service. See July 2019 Hearing Transcript. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a right wrist disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In a September 2012 VA treatment records, the Veteran reported pain in his wrists, but no diagnosis was rendered. Subsequently, in an April 2015 VA examination, the VA examiner evaluated the Veteran and determined that the he had a chronic right wrist sprain. The VA examiner noted the diagnosis was made based on the Veteran’s reported symptoms on the day of the examination. The VA examiner further noted that imaging studies of the Veteran’s wrist did not show any documentation of degenerative or traumatic arthritis. There were also no other significant diagnostic test findings or results. Upon conclusion of the VA examination, the VA examiner stated that the mildness of symptoms suggested mild chronic sprain of the scapholunate (SL) joints and that normal x-rays ruled out a scapholunate disruption that would require formal treatment. In a January 2020 VA examination, the VA examiner stated he did not have a diagnosis of a right wrist condition or injury and no diagnosis was warranted. The VA examiner noted the Veteran’s reports of pain while doing push-ups but noted it was only intermittent and felt when he was doing heavy lifting or anything with his wrist extension. The VA examiner noted the Veteran reported at one point he was told he may have carpal tunnel or tendonitis but was never evaluated or treated for his pain in service. The Veteran denied any wrist injuries and there is no evidence of specific medical evaluation for his right wrist since service. The VA examiner also noted that imaging studies of the wrist did not show degenerative or traumatic arthritis and x-rays were not clinically indicated. Upon conclusion of the VA examination, the VA examiner stated there is no evidence of a chronic wrist condition or injury documented in his service records or prior medical records. While the April 2015 VA examiner stated that his mild symptoms suggested a chronic right wrist sprain, the Board finds that the April 2015 VA examination and diagnosis is not probative. As noted by the April 2015 VA examiner, the diagnosis was made based solely on the Veteran’s reported symptoms. Further, while the VA examiner stated that his mild symptoms “suggested” a mild chronic sprain of the scapholunate (SL) joints, he later notes that the Veteran’s normal x-rays ruled out a scapholunate disruption that would require formal treatment. As such, the Board finds the diagnosis to be merely speculative and internally inconsistent and is not adequate for adjudication. Obert v. Brown, 5 Vet. App. at 30, 33 (1993) (a medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish a plausible claim). Consequently, the Board affords more probative weight to the findings in the January 2020 VA examination. The Board is cognizant of the recent holding in Saunders v. Wilkie, which stated that, where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. 886 F.3d 1356 (Fed. Cir. 2018). In Saunders, the United States Court of Appeals for the Federal Circuit essentially found that pain alone resulting in functional impairment is in fact a disability and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. In this case, however, the April 2015 and January 2020 VA examination reports do not show that the Veteran experiences, any functional limitation or functional impact on ability to work due to his intermittent right wrist pain. As the Veteran’s claimed disability does not amount to functional impairment of earning capacity, Saunders is not applicable to this claim. The Board has further considered the Veteran’s report of right wrist pain which began during his first period of active duty service from September 2004 to August 2005. The Board further acknowledge his report that he was told he may have carpal tunnel or tendonitis. However, a review of his VA treatment records service treatment record (STRs) fails to show a diagnosis of carpal tunnel syndrome, tendonitis, or any diagnosis of a right wrist disability. Moreover, the Board finds that the Veteran’s report without any supporting evidence of a diagnosis of carpal tunnel syndrome is insufficient to establish a diagnosis. While the Veteran may be competent to report subjective symptoms such as pain, he is not competent to render a diagnosis with regards to his right wrist disability as requires medical knowledge. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, the Board finds that the preponderance of the evidence is against a finding of a current right wrist disability. As such, the benefit of the doubt doctrine is inapplicable and the Veteran’s service connection claim for a right wrist disability must be denied. 2. Cervical spine The Veteran seeks service connection for a cervical spine disability. Specifically, he testified that his neck injury was initially incurred during a car accident in 2002 prior to service and that his neck injury was aggravated by his military duties. He further states his cervical spine disability was aggravated by the weight of his Kevlar helmet and other stuff on his head as well as having to lay down in a prone position with his head cocked all the time for hours. See July 2019 Hearing Transcript. Upon review of the evidence, a July 2020 x-ray shows mild multilevel degenerative osteoarthritic changes visualized particularly at C6-C7 and slightly progressive mild left neural foramina narrowing at C6-C7. As such, the Board finds that the Veteran has a current diagnosis of a cervical spine disability. Thus, the next question for the Board is whether there was an in-service incurrence or aggravation of the Veteran’s cervical spine disability. The Veteran testified that he had a pre-existing neck injury prior to his active duty service from September 2004 to August 2005 and from August 2008 to October 2009. As previously noted, the Veteran had an ACDUTRA period from October 2001 to March 2002. He also had active duty service from September 2004 to August 2005 and from August 2008 to October 2009. Regarding the Veteran’s period of ACDUTRA service, the Board finds that the Veteran did not incur a neck injury during his ACDUTRA period from October 2001 to March 2002. His March 2001 enlistment examination does not reflect an abnormal head or spine examination and there was no complaints, diagnosis, or treatment for a neck injury during his ACDUTRA period. Additionally, the Veteran does not contend that his neck injury was incurred during his ACDUTRA period. Rather, he reported during an April 2015 VA examination that his neck pain began approximately in 2004. At a July 2019 Board hearing he reported sustaining a neck injury in 2002 and at a January 2020 VA examination he reported injuring his neck in a car accident prior to service. As such, the Board finds that the Veteran did not incur a neck injury during his ACDUTRA period and service connection is not warranted for this period. With regards to his period of active duty service from September 2004 to August 2005 and from August 2008 to October 2009, the Veteran’s STRs shows an enlistment examination for his ACDUTRA period in March 2001, but there are no entrance examinations for his two periods of active duty service from September 2004 to August 2005 and from August 2008 to October 2009. His STRs shows in-service treatments, pre- and post-deployment health assessments for these two periods of active duty service. However, there remains no entrance examinations for the relevant periods of service. Thus, he is presumed sound during these periods/ Since the presumption of soundness is not rebutted, the issue becomes whether there is a nexus between the current cervical spine disability and active military service. Wagner, supra. Unfortunately, in this regard, the Board finds that the weight of the probative evidence of record fails to establish a nexus for his current cervical spine disability and active military service. An April 2015 VA examiner opined that his cervical spine disability was less likely than not directly related to an injury while he was a service member. The VA examiner noted that x-rays of the neck showed normal changes for his age without evidence of an occult injury and there was a lack of documented injury or ongoing medical care for his cervical spine disability. It was further noted that his condition was mild in nature. The Veteran was provided with another VA examination in January 2020 for his cervical spine. However, that VA examiner further opined that his claimed neck condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner explained that the Veteran denied a neck injury in service. The VA examiner noted he reported his neck pain started due to the “wear and tear” of heavy lifting and gear on tour in 2005 but he denied any specific injuries in service. The Veteran was also not evaluated or treated for his symptoms in service. The VA examiner further noted there was no evidence of a documented injury or diagnosis of cervical spine and that he had a negative cervical spine physical. Prior imaging was also negative for pathology. As such, the VA examiner concluded a nexus has not been established. Similarly, a September 2020 VA examiner opined that his cervical spine disability was less likely than not incurred in service or caused by the claimed in-service injury, event, or illness. The VA examiner explained that a review of the STRs and medical record shows no evidence of a diagnosis, treatment, or symptoms suggestive of a cervical spine complaint, condition, or injury while on any period of active duty or within one year of separation from any period of active duty. The VA examiner noted that his x-ray conducted in July 2020 shows mild multilevel degenerative osteoarthritic changes and slightly progressive mild left neural foramina narrowing at C6-C7. However, the VA examiner stated the x-ray was consistent with normal natural aging and inconsistent with traumatic or repetitive injury. The VA examiner also addressed that while carrying heavy loads are often discussed and opinions rendered in the lay press in association with cervical conditions, there are no medical studies to substantiate these claims. The VA examiner additionally noted that the Veteran has stated in C&P examinations and in his testimony that he injured his neck in a motor vehicle accident in 2002, prior to active duty, which is not disclosed on entrance exams. Nevertheless, the VA examiner stated there is no evidence of any of any complaints during any period of active service that would suggest permanent aggravation of a pre-existing condition. The Board has further considered the Veteran’s lay statement that his cervical spine disability was aggravated by the weight of his Kevlar helmet and other equipment on his head as well as having to lay down in a prone position with his head cocked all the time for hours. While the Veteran is competent to testify as to the symptoms of pain, as to the specific issue in this case, the etiology of his cervical spine disability falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As the Veteran has not demonstrated that he has the required medical knowledge and training to render a medical nexus, the Board finds the VA examiner’s opinions to be more probative. As the Veteran’s diagnosis of mild multilevel degenerative osteoarthritic changes of the cervical spine is a chronic disease, the Board has also considered whether he is entitled presumptive service connection. Unfortunately, the Board finds that it is not warranted. There are no medical evidence indicating a diagnosis of any degenerative osteoarthritic changes of the cervical spine in service or within a year after separation from both of his active duty periods. A review of a June 2006 airborne examination further failed to show a diagnosis of degenerative osteoarthritic changes. More importantly, the Veteran’s x-rays of his cervical spine in April 2015 did not show any degenerative arthritis changes in his neck despite his reports of neck pain. It was not until a July 2020, 11 years after his last period of active duty service, that an x-ray of his cervical spine showed mild degenerative osteoarthritic changes of the neck. As such, because arthritis was not shown in service, and because the record does not indicate that he had characteristic manifestations of such, the provisions of law pertaining to continuity of symptomatology are not for application and he is not entitled to presumptive service connection for a chronic disease. Based on the foregoing reasons, the Board finds that preponderance of the evidence is against a finding that the Veteran’s current cervical spine disability is etiologically related to his periods ACDUTRA or active duty service. Thus, the Board finds that the benefit of the doubt doctrine is inapplicable and his claim for service connection for a cervical spine disability must be denied. 3. Left hip The Veteran further seeks service connection for a left hip disability. Specifically, he asserts he injured his left hip during a firefight in Afghanistan. See July 2019 Board Hearing. Although a bullet hit the Veteran’s Gerber tool on the left hip leaving him with no penetrating wound, he testified that had a swollen and bruised hip and has continued to have pain in the left hip since the incident. Id. Upon review of the Veteran’s medical treatment records and VA examinations, the Veteran has not been diagnosed with a left hip disability. See April 2015 and January 2020 VA examination. However, in considering the holdings in Saunders which stated that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis, the Board finds that the Veteran has a current disability based on his reports of left hip pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Here, in an April 2015 VA examination, the Veteran reported having sharp stabbing pain in the soft tissue which occasionally radiates down the left leg. He also reported sciatic type symptoms of the left second toe. Additionally, during a July 2019 Board hearing, he testified that he continued to experience pain down the back of his left leg. He stated the pain occurs every day but at random times. He also stated that while he takes Motrin for the pain, but it does not seem to help. In a January 2020 VA examination, he also continued to report experiencing intermittent pain, more so, along the buttock region and soft tissue rather than in his left hip joint. While an April 2015 and January 2020 VA examination failed to establish a current left hip diagnosis, given the nature of the injury, a non-penetrating gunshot wound during a firefight, and his competent description of left hip pain since the in-service injury, the Veteran’s left hip pain results in functional impairment. Thus, in resolving any doubt in favor of the Veteran, the Board finds that the Veteran’s left hip pain constitutes a disability for VA compensation purposes. As such, the first element for a service connection claim has been satisfied. The Board further finds that the Veteran sustained an in-service injury to the left hip consistent with his report of engaging in a firefight with the enemy in Afghanistan. As noted in a March 2009 STR, he complained of skin symptoms and pain and bruising of the left hip, musculoskeletal symptoms of the left hip and neurological symptoms described as tingling. The examining physician noted he had a gunshot wound without penetrating wound and a contusion with intact skin surface. As such, the second element has been satisfied. With regards to a medical nexus establishing the Veteran’s left hip disability to service, an April 2015 VA examiner opined that it was less likely than not that the Veteran’s left hip symptoms are directly related to his in-service trauma to the same area. The VA examiner stated he was seen only once for the trauma and that the duration that has passed since the injury without needing medical care argues against a significant ongoing medical problem. While the VA examiner noted that the examination suggested the Veteran had a mild hip abductor syndrome, the VA examiner stated that there was no evidence that it would stem directly from the gunshot wound. Another January 2020 VA examiner further opined that the Veteran’s left hip injury was less likely than not incurred in service. The VA examiner stated his hip pain and contusion due to the in-service injury was only acute. The VA examiner further stated that there was no evidence of a chronic left hip condition documented in his medical record or on examination and that there was no continuity of care for a hip condition. However, upon review of the Veteran’s lay statement and the pertinent medical evidence, the Board concludes that the evidence is at least evenly balanced as to whether his left hip disability was caused by his service. The Veteran has consistently provided competent lay evidence that he sustained an injury during active service in Afghanistan and there is no evidence to show that he lacks credibility. While the April 2015 and January 2020 VA examiner opined that that his left hip condition was less likely than not incurred in or caused by an in-service injury, the VA examiners based their opinions on the absence of continued treatments after separation from service which is impermissible, particularly in the case of a combat veteran. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As such, the Board affords little probative value to the April 2015 and January 2020 VA medical opinions of record. Thus, in applying the benefit of the doubt doctrine, the Board will resolve any reasonable doubt in favor of the Veteran. As such, the Board finds that service connection for a left hip disability is warranted. 4. Right ankle 5. Left ankle The Veteran also seeks service connection for a right and left ankle disability. Specifically, he asserts that he rolled his ankle while running downhill and uphill around their foreman up room base in Afghanistan in 2008 or 2009. See July 2019 Board Hearing. He also asserts that his airborne training in 2006 affects his ankles because he still gets pain in them. He states his ankles are weak and that he is unable to run like normal or how he would like to run. Upon review of the evidence, the Board finds that the Veteran does not have a current diagnosis of a right or left ankle disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s STRs in May 2009 reports a left ankle sprain, however, no diagnosis was rendered at that time. In a September 2012 VA treatment record, the Veteran further reported right ankle pain but no diagnosis was rendered. In an April 2015 VA examination, the VA examiner further reported that he did not have a current diagnosis associated with his bilateral ankle condition and that he has not had a formal diagnosis of either ankle. The VA examiner further noted that review of his records did not show treatment for either ankle. Upon conclusion of the April 2015 VA examination, the VA examiner noted there is no diagnosis to either ankle that currently causes significant symptoms and that x-rays suggest no occult injuries sustained while he was a service member. Additionally, a January 2020 VA examiner also stated there is no evidence of a chronic ankle condition or injury in his medical records or on examination. The VA examiner further stated that x-rays on the date of the VA examination were not clinically indicated and that there was no evidence of degenerative or traumatic arthritis. The Board has considered the Veteran’s left and right ankle pain under the holdings in Saunders. However, a review of the April 2015 and January 2015 VA examination fails to show that his left and right ankle pain causes functional limitation or functional impact on his ability to work. As the Veteran’s claimed disability does not amount to functional impairment of earning capacity, a current disability for VA compensation purposes is not demonstrated. The Board has further considered the Veteran’s lay reports of bilateral ankle pain since his reported in-service ankle sprains. While he may be competent to report subjective symptoms such as pain, he is not competent to render a diagnosis with regards to his bilateral ankle conditions as it requires medical knowledge. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As there is no evidence indicating that the Veteran has a current diagnosis, or that any pain results in any functional or occupational impairment, the Board finds that the first criteria for service connection has not been satisfied. The benefit of the doubt doctrine is inapplicable and the Veteran’s service connection claim for his bilateral ankle disability must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, Associate 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.