Citation Nr: 21004284 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 20-00 399A DATE: January 26, 2021 ORDER Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression, is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has had a right ankle disability, or pain in the ankle severe enough to cause functional impairment of earning capacity, at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran’s symptoms of anxiety and/or depression had onset in service or are related to an in-service event or service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for an acquired psychiatric disorder, to include anxiety and depression, have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1964 to February 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a December 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in his Form 9, the Veteran appealed the issue of “radiation exposure.” In a November 2020 rating decision, service connection was granted for irritable bowel syndrome with diverticulitis (claimed as diarrhea due to radiation exposure). The Veteran considers this claim resolved. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases, such as arthritis and certain mental disorders such as psychoses. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Entitlement to service connection for a right ankle disability The Veteran seeks service connection for a right ankle disability. He asserts he fractured his right ankle during basic training, has since had a history of ankle pain, and believes he has post-traumatic arthritis. However, diagnosis of an ankle fracture, is not shown in the evidence of record. In fact, the medical evidence does not demonstrate the presence of any current right ankle disability, to include arthritis. Service treatment records demonstrate that the Veteran sought treatment for the right ankle in July 1964. By September 1964, he was doing well and removed from profile for a sprained ankle. Thus, while the service treatment records demonstrate a sprained ankle in 1964, the records do not establish a right ankle fracture. Thereafter, service treatment records show no other complaints, diagnosis, or treatment related to the right ankle. At the separation examination, the right ankle was normal, and the Veteran did not report any symptoms such as pain. The Board recognizes a notation on the separation examination regarding broken bones and that the Veteran had fractured his right foot. It was specifically indicated there were no complications and it was well healed. Regarding foot trouble, the notes stated “fractured in past. No complications and no sequelas.” The December 1963 entrance examination suggests the Veteran may have injured his foot prior to service. It was indicated the injured foot was healed with no complications. Regardless of these details, there is no indication that the Veteran experienced a right ankle fracture during service. To the extent the Veteran’s representative wishes the Board to consider entitlement to service connection for a right foot disability, as insinuated in the December 2020 appellate brief, the Board finds it does not have jurisdiction over such a claim. As the Veteran reported other ailments during service, and ankle problems are the type that a reasonable person would report, if the Veteran was experiencing problems with his right ankle during service the Board would expect that he would have reported these problems to medical professionals after the 1964 treatment for a sprained ankle. During the December 1966 separation examination, evaluation of the right ankle was normal. In a corresponding report of medical history, the Veteran specifically denied having had any problems with his right ankle. If right ankle pain or other symptoms such as weakness were present during service, the Board would expect the Veteran would have responded “yes” when asked about joint pain at separation because a reasonable person would have interpreted the question to include symptoms of right ankle pain. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation, such as foot trouble, and the Board would thus expect the Veteran to have also responded affirmatively to having right ankle symptoms. The VAMC treatment records do not demonstrate any treatment for or diagnosis of a right ankle disability. The Veteran has sought treatment for the left ankle, e.g., August 2009, but not the right ankle. Physical examinations have demonstrated reduced ankle muscle strength but that occurred in the context of treatment for another condition such as knee pain (October 2008) and muscle strength was normal in May 2019. In June 2018, the Veteran was noted to have reduced ankle plantar flexion and dorsiflexion. It appears the care provider was referring to the right ankle. Again, however, the care provider did not record a diagnosis. The care provider also did not indicate any significant functional impairment, After a review of the file, the Board finds that there is no diagnosed right ankle disability and no functional impairment due to right ankle symptoms. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018) (Federal Circuit holding that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity”). As there is no competent evidence of a current right ankle disability, service connection must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. To the extent the Veteran asserts that he was told by clinicians that he has a right ankle diagnosis, the Board finds that these statements do not establish a current disability during or approximate to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). None of the clinical records show such a diagnosis. The Board ultimately assigns greater probative weight to the medical evidence of record, to include opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s report of medical history at separation from service where he denied right ankle problems. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. The Board has considered the Veteran’s assertions in his Form 9 that he was given strong pain medicine for arthritis and pain in the 1980s because he was too young for a knee replacement and thereafter given Cortizone injections until that was no longer an option. He related that he now has scoliosis and treatment includes physical therapy and wearing custom orthopedic shoes. He also stated that his physical therapist told him that his ankle injury could have contributed to those issues. The service treatment records demonstrate that the Veteran experienced an ankle sprain that resolved during service. Although the record indicates disabilities of the knees and back, the record does not establish a current disability of the ankle or pain to the degree that would limit earning capacity and for this reason, the claim cannot succeed. The Board recognizes that that the Veteran has not been afforded a VA examination in connection with this claim. Pursuant to McClendon v. Nicholson, 20 Vet. App. 79 (2006), an examination is required where there is evidence of a current disability; evidence establishing an in-service event; an indication that the current disability may be related to the in-service event; and insufficient evidence to decide the case. Here, there is sufficient evidence to decide the claim. The records demonstrate that the Veteran experiences pain; however, his complaints have not been related to the right ankle and there is no indication that he has a diagnosis of a disability, which is a necessary element for the grant of service connection. The physical therapist’s comment that the injury sustained in 1964 could have contributed to his knee and back disabilities, does not provide an indication that a current right ankle disability may be related to the in-service event. Given the above, the preponderance of the evidence is against a claim for service connection for a right ankle disability and that claim is denied. 2. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression The Veteran filed a claim for service connection for depression with anxiety. The Board will expand the scope of the claim to encompass any mental health diagnosis raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service connection for an acquired psychiatric disorder, however, requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders. See Martinez-Boden v. Wilkie, No. 18-3721 (Aug. 11, 2020). Service treatment records establish the Veteran never sought treatment for a mental health disorder or symptom. Notably, the separation examination report specifically notes a normal psychiatric evaluation. Thereafter, there are no complaints, diagnoses or treatment of a mental health disorder until the Veteran filed his claim in 2017. There is no competent evidence of a diagnosis of an acquired psychiatric disorder in service or within one year following discharge from service. Accordingly, as psychoses is not shown to be present during service or in the year following separation from service, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a). Notably, the Veteran reported sleep problems and was given a mental health evaluation in May 2008. The provider made an Axis I diagnosis of inability to sleep. The Board finds this diagnosis occurred in the context of the applicable version of the Diagnostic and Statistical Manual of Mental Disorders as required by VA regulations. 38 C.F.R. §§ 3.304 (f), 4.125(a). The Board notes that the VAMC treatment records on some occasions note anxiety as a reported symptom. While the Veteran’s treatment records refer to anxiety, there is no evidence that a diagnosis was made under the diagnostic criteria for the Diagnostic and Statistical Manual of Mental Disorders, either DSM-5 or to its predecessor, DSM-IV. Furthermore, the treatment records indicate any mental health symptoms exhibited by the Veteran relate to either anxiety about his current nonservice-connected medical conditions (October 2017) or sleep problems (May 2008, April 2018). He was diagnosed with obstructive sleep apnea in June 2008. He is not service connected for that condition. It was noted the Veteran’s anxiety was related to daily stressors, to include his wife and pain, and he was prescribed Cymbalta, as well as melatonin to help with sleep. Other medications were tried due to continuing stress-related anxiety. The evidence also includes numerous negative screenings for depression. On his Form 9, the Veteran indicated experiencing anxiety and insomnia. He alleged experiencing pain and ongoing issues that he attributes to the injury that led to a sprained right ankle in 1964. However, he does not allege that his anxiety began during service. While it is clear that the Veteran suffers from anxiety, this symptom has been attributed to current health concerns and stressors. Although the Veteran alleges that the injury that led to his acute right ankle strain in service led to his current painful health conditions, and as a result, his anxiety, the Board does not find this theory supported by the record. The Veteran alleges that he began seeking treatment for his knees and back in the early 1980s, over a decade after separation from service. The evidence is against a finding of continuing treatment for a condition related to service. The Board acknowledges the statement from the Veteran’s representative in the December 2020 appellate brief that remand for an examination is merited. Pursuant to McClendon v. Nicholson, 20 Vet. App. 79 (2006), an examination is required where there is evidence of a current disability; evidence establishing an in-service event; an indication that the current disability may be related to the in-service event; and insufficient evidence to decide the case. Here, there is sufficient evidence to decide the claim. The preponderance of the evidence, viewed as a whole, fails to demonstrate a relationship between the Veteran’s anxiety and service. It is clear from the record that the Veteran’s anxiety is related to present day stressors and non-service connected concerns. Given the above, the preponderance of the evidence is against a claim for service connection for an acquired psychiatric disorder and the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks service connection for hearing loss. He attributes the hearing loss to his military noise exposure as a Hawk Missile Fire Control crewman. In the November 2017 VA examination, the examiner, an audiologist, diagnosed bilateral mixed hearing loss. He could not provide an opinion as to whether the Veteran’s hearing loss is related to service because the severe mixed hearing loss may have an underlying medical cause. Further, there is no separation audiogram to indicate whether the Veteran had any hearing loss in service. The Board interprets the VA examiner’s statements as indicating any opinion was beyond the scope of the VA examiner’s expertise. Therefore, the Board has determined that a new VA opinion should be obtained. Ongoing medical records should also be obtained. The matter is REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his hearing loss claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner with expertise in determining the etiology of mixed hearing loss to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current mixed hearing loss onset during service or is otherwise related to an in-service injury, event, or disease, to include the Veteran’s service as a missile crewman. In offering the opinion, the examiner is asked to consider and discuss whether any medical condition caused the underlying mixed hearing loss (Continued on next page) The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. C.B. Iwanowski Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell P. Veldenz, 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.