Citation Nr: 21061638 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 15-46 247 DATE: October 4, 2021 ORDER Entitlement to service connection for a left ankle condition is denied. Entitlement to service connection for a right ankle condition is denied. Entitlement to service connection for a bilateral foot condition is denied. REMANDED Entitlement to service connection for arthritis, to include of right hand, spine, and hip, is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a gastrointestinal condition, to include irritable bowel syndrome, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that that the Veteran's current left ankle condition began during active service, or is otherwise related to an in-service event, injury, or disease. 2. The preponderance of the evidence is against finding that that the Veteran's current right ankle condition began during active service, or is otherwise related to an in-service event, injury, or disease. 3. The preponderance of the evidence is against finding that that the Veteran's current bilateral foot condition began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ankle condition have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for a right ankle condition have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for entitlement to service connection for a bilateral foot condition have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1974 to March 1998. In September 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this case in May 2019. Relevant to the issues denied in this decision, that remand directed the agency of original jurisdiction (AOJ) to obtain the Veteran's VA treatment records for the period from November 18, 2015, through the present; afford the Veteran a VA examination as to his claimed bilateral foot conditions; and obtain an addendum opinion as to the Veteran's claimed left ankle and right ankle conditions. Pursuant to the remand, the AOJ obtained the Veteran's updated VA treatment records, afforded the Veteran a VA examination as to his claimed bilateral foot conditions in November 2019; and obtained an addendum opinion as to the Veteran's claimed left ankle and right ankle conditions in November 2019. The November 2019 VA examination and November 2019 addendum opinion provide the information necessary to render a full decision as to the issues. Accordingly, the Board finds that VA at least substantially complied with the May 2019 remand. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for a left ankle condition 2. Entitlement to service connection for a right ankle condition 3. Entitlement to service connection for a bilateral foot condition The Veteran seeks entitlement to service connection for left ankle, right ankle, and bilateral foot conditions. At the September 2018 Board hearing, he testified that his ankles and feet hurt during service, but that he did not seek treatment for the pain because he was in infantry and they were "strictly discouraged from going on sick call for your normal aches and pains or minor injuries." He also contends that the conditions are the result of the cumulative effect of parachute jumps and being part of the infantry. 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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, although the Veteran has current diagnoses of bilateral ankle sprains and bilateral foot strains, the evidence shows that the Veteran was diagnosed with left Achilles tendonitis in September 1978 during his active service, and the Veteran is competent and credible in his reports of in-service foot and ankle pain, parachute jumps, and strenuous activities as an infantryman, the preponderance of the evidence weighs against finding that the Veteran's current ankle and foot disabilities began during service or are otherwise related to an in-service injury, event, or disease. Bilateral ankle X-rays taken at the time of a May 2012 VA examination showed that both ankles were normal in appearance. The May 2012 VA examiner diagnosed the Veteran with bilateral ankle sprains. Aside from the September 1978 in-service diagnosis of left Achilles tendonitis, the record does not show any diagnosis for the ankles prior to the May 2012 VA examination, which was performed more than 14 years after the Veteran's separation from active service. Bilateral foot X-rays taken at the time of a November 2019 VA examination showed no acute abnormality of either foot. The November 2019 VA examiner diagnosed the Veteran with bilateral foot strains. The record does not show any diagnosis for the feet prior to the November 2019 VA examination, which was performed more than 21 years after the Veteran's separation from active service. Although the Veteran is competent to report having experienced symptoms of ankle and foot pain since service, he is not competent to provide a diagnosis in this case or determine that the in-service and post-service symptoms were manifestations of the current ankle sprains and foot strains. The issue is medically complex, as it requires medical knowledge of the cause and progression of specific musculoskeletal conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, his statements are not probative in showing that the currently diagnosed ankle and foot conditions had their onset during his active service or are related to an in-service event, injury, or disease. To determine whether such an etiological connection exists, the Board turns to the competent medical evidence, which in this case consists of opinions provided by the November 2019 VA examiner and a statement provided by S. T., D.O., in August 2018. The November 2019 VA examiner opined that the Veteran's claimed right ankle, left ankle, and bilateral foot conditions were less likely than not incurred in service or caused by an in-service injury, event, or illness. As a rationale for that opinion, the examiner explained that repetitive trauma or impact such as the rigors of military service and parachute jumps can be associated with development of degenerative joint disease years later. However, based on current available evidence, there is no evidence of degenerative disease in the Veteran's ankles and feet. She further explained that review of orthopedic literature reveals no credible, peer reviewed studies that support the contention that remote impact on the ankles and feet can cause symptoms other than degenerative joint disease decades later. The VA examiner's opinion is probative because it is based on an accurate medical history, addresses the Veteran's contention that his current ankle and foot conditions are related to in-service strenuous activities, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Private practitioner S. T., D.O., opined in August 2018 that the Veteran's "multiple joint problems and pain" are "more than likely due to constant overuse of these joints. It is possible that these issues can be associated with twenty-five years of military training and maneuvers performed." The Board finds Dr. T.'s opinion to be not probative because it is not supported by rationale. In addition, Dr. T. is contradictory and equivocal in his language, first stating that the Veteran's conditions are "more likely due to constant overuse" and then stating that "[i]t is possible" that the conditions are related to the Veteran's active service. Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (for a medical opinion to be adequate for decision-making purposes, it must be supported by a rationale and explanation for the conclusion reached). In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claims for entitlement to service connection a left ankle disability, entitlement to service connection for a right ankle disability, and service connection for a bilateral foot disability. Because the preponderance of the evidence is against the claims, the doctrine of reasonable doubt is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for arthritis, to include of the spine and right hand, is remanded. The Veteran seeks entitlement to service connection for arthritis. He did not specify in his claim which joints are in contention, but did assert that his arthritis is due to strenuous activities he participated in during his nearly twenty-four years of active service. The medical treatment records show that an X-ray of the right hand obtained in March 2015 showed mild interphalangeal degenerative changes and mild first carpometacarpal degenerative joint disease. X-rays obtained in September 2015 showed degenerative changes in the cervical spine, lumbar spine, and hip. X-ray and MRIs obtained in August 2016 showed degenerative changes in the cervical spine, thoracic spine, and lumbar spine. The November 2019 VA examiner's opinion suggests that the sort of strenuous activities reported by the Veteran can cause degenerative joint disease years later. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for arthritis because no VA examiner has opined whether the arthritis shown in the record, to include in the Veteran's right hand, cervical spine, lumbar spine, thoracic spine, and hip, is related to his active service. 2. Entitlement to service connection for a right knee condition is remanded. The May 2019 Board remand directed the AOJ to obtain an opinion as to whether the claimed right knee condition may be related to his active service. On remand, the November 2019 VA examiner declined to provide the requested opinion because, "Review of veteran's available records does not show a current diagnosis for his right knee." However, the Veteran has reported that he has pain in his right knee. In addition, at a May 2012 VA examination, the Veteran had reduced right knee extension limited to 120 degrees. Thus, the Veteran's right knee pain is productive of functional limitations that may cause impairment in earnings capacity such that the right knee pain itself constitutes a disability for service connection purposes. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (2018). The issue must be remanded so that an opinion may be obtained. 3. Entitlement to service connection for a gastrointestinal condition, to include irritable bowel syndrome, is remanded. The May 2019 Board remand directed the AOJ to obtain an opinion as to whether the Veteran's reported gastrointestinal symptoms may be diagnosed as irritable bowel syndrome or another functional gastrointestinal disorder, as defined in 38 C.F.R. § 3.317, and, if not, whether the Veteran's current gastrointestinal symptoms are related to his active service, to include in-service complaints of epigastric pain, nausea, and diarrhea, and the in-service diagnosis of gastritis. The November 2019 VA examiner provided a negative opinion, stating that there is no objective medical record evidence to render a diagnosis of irritable bowel syndrome or any functional gastrointestinal disorder and that the record does not show report of symptoms ongoing since service other than those reported by the Veteran at VA examinations. The Board finds that opinion to be inadequate for decision-making purposes. The examiner did not explain why a diagnosis could not be made based on the Veteran's subjective complaints or why objective testing could not be performed to determine whether the Veteran has a diagnosis. In addition, the examiner essentially found the Veteran not credible in his reports of continuous symptoms since service based solely on a lack of contemporaneous medical evidence documenting complaint of or treatment for such symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The issue must be remanded so that an opinion may be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed arthritis, to include the degenerative changes seen in his right hand, cervical spine, thoracic spine, lumbar spine, and hip. The examiner must review the claims file. The examiner is asked to provide a response to the following: Are the degenerative changes or arthritis shown in the record or on examination at least as likely as not (50 percent probability or greater) related to the Veteran's active service, to include parachute jumps and his training as an infantryman? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's right knee pain is at least as likely as not (50 percent probability or greater) related to the Veteran's active service, to include parachute jumps and his training as an infantryman? The examiner is asked to treat the Veteran's right knee pain itself as a disability subject to service connection even if there is no diagnosis associated with that pain. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's reported gastrointestinal symptoms may be diagnosed as irritable bowel syndrome or another functional gastrointestinal disorder. If the examiner determines that a diagnosis may not be rendered based on the Veteran's subjective reports alone, then the examiner should explain what objective evidence is required to make such a diagnosis. If possible, the clinician should conduct any objective testing required to determine a diagnosis. If not, the clinician should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current gastrointestinal symptoms are related to his active service, to include the in-service complaints of epigastric pain, nausea, and diarrhea, and the in-service diagnosis of gastritis. For purposes of this opinion, functional gastrointestinal disorders are defined as a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. See 38 C.F.R. § 3.317(a)(2)(i)(B)(3). In considering the Veteran's statements as to the onset and continuity of his gastrointestinal symptoms, the examiner must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Therefore, the fact that there are no contemporaneous medical treatment records documenting the continuity of symptoms from the Veteran's separation from active service through the present does not, by itself, render the Veteran's statements not credible. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.