Citation Nr: 21061941 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-43 008 DATE: October 5, 2021 ORDER Entitlement to service connection for kidney disease is denied. Entitlement to service connection for a sprain with talus osteochondral lesion of the left ankle is denied. Entitlement to service connection for a sprain with talus osteochondral lesion of the right ankle is denied. REMANDED Entitlement to service connection for neoplasms is remanded. FINDINGS OF FACT 1. The preponderance of the evidence weighs against finding that the Veteran has kidney disease or had any such diagnosis at any time during the appeal period. 2. The preponderance of the evidence weighs against finding that the Veteran's left ankle sprain is etiologically related to active service, to include as due to an in-service injury, event, or disease. 3. The preponderance of the evidence weighs against finding that the Veteran's right ankle sprain is etiologically related to active service, to include as due to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for kidney disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for establishing entitlement to service connection for a sprain with talus osteochondral lesion of the left ankle have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for establishing entitlement to service connection for a sprain with talus osteochondral lesion of the right ankle have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active-duty service with the United States Army from April 1988 to August 1988 and from December 1992 to October 2016. Pursuant to a March 2019 Board decision, this matter was remanded for additional development to include scheduling the Veteran for new VA examinations. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. As to the claim of entitlement to service connection for a neoplasm of uncertain behavior, the Board finds that an additional remand is required as the Regional Office (RO) has yet to comply with the applicable remand directives. The Board observes that a claimant has the right to substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the United States Court of Appeals for Veterans Claims Court (Court) or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see also D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). Per the Board's March 2019 remand decision, the RO was directed to schedule the Veteran for a VA examination regarding her complaints of skin neoplasms of uncertain behavior, as causally related to active service. Review of service treatment records document complaints of skin rashes or hives in June 2006. Post-service treatment records note symptoms. To date, a VA examination has not been scheduled. Accordingly a remand is required. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. 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 duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active-duty service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. §§ 3.303 (a), 3.304 (2020). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of 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 disease or injury incurred or aggravated during service (the medical 'nexus' requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2020). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b) (2020). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for kidney disease The Veteran contends that she is entitled to service connection for kidney disease as causally related to active service. As discussed in more detail below, the preponderance of the evidence is against her claim. In analyzing the Veteran's claim, the threshold inquiry before the Board is whether she 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, while the record confirms diagnostic findings consistent with reduced kidney function in service and again, post-separation, the preponderance of the evidence weighs against finding that the Veteran suffers from chronic kidney disease as causally related to active service, to include as due to an in-service injury, event, or disease. Service treatment records were silent for any disqualifying abnormalities at enlistment in January 1988. A master problem list in September 1996, noted a right ankle sprain. In February 2010, the Veteran reported problems with bursitis and joint pain with swelling. Treatment records dated December 2012 and March 2013, document slight reduced kidney. The Veteran was advised to increase hydration. For the period between March 2008 and April 2012, the Veteran's estimated glomerular filtration rate (eGFR) ranged from 54 to 71. In August 2015, the Veteran was treated for a urinary tract infection (UTI). Prescribed medications included antibiotics, Fluoroquinolones. Hip and ankle pain was also reported with high impact physical activity. A post deployment health assessment, dated August 2015, referenced bilateral ankle pain. One year later, a report of medical assessment referenced foot pain in June 2016. On examination in June 2016, the examiner acknowledged the Veteran's self-reported history of chronic kidney disease, stage 3. During the current examination, there is no evidence of kidney infection or UTI. Previous laboratory studies revealed elevated creatinine levels. However, a complete blood count (CBC) test yielded normal findings. While elevated creatinine levels have been associated with impaired kidney function or kidney disease, no formal diagnosis was rendered. Following the clinical evaluation, the examiner acknowledged a suggestion of chronic kidney disease stage 3, however, the current diagnostic findings fail to show a pathology to support a current diagnosis. Laboratory findings, dated January 2018 and August 2018, revealed an eGFR of 71.3 and 71.6, respectively. The listed findings were deemed consistent with mildly reduced kidney functioning. A history of pulmonary embolism was also noted with a prescribed course of anticoagulants over a 3 to 4-month period. Pursuant to a March 2019 Board remand decision, an additional VA medical opinion was deemed necessary. On examination in September 2019, no current diagnosis of kidney disease was rendered. During the clinical interview, the Veteran reported an onset of nephritis in the service between 2007 to 2009. The condition was treated with antibiotics and it resolved. A urinalysis revealed substantially normal findings. There was no evidence of renal dysfunction, urolithiasis, a kidney infection, nor any tumors or neoplasms. No functional impact was identified. Following the clinical evaluation, the examiner opined that there was no objective evidence of a current kidney condition. Therefore, an opinion could not be rendered to establish a "nexus" to active service. On review of the record, the Board finds that the evidence does not support a finding that the Veteran suffers from a kidney condition, to include chronic kidney disease, as causally related to active service. While a history of reduced kidney function is acknowledged, diagnostic findings do not support a current diagnosis of kidney disease. Moreover, there is no evidence that the Veteran has received targeted treatment for kidney disease. In fact, the medical evidence confirms that she was advised to increase hydration and was previously prescribed antibiotics to treat a UTI; which resolved. Although the Board recognizes the Veteran's subjective belief that she suffers from kidney disease as causally related to active service, a lay person is not competent to provide a complex medical opinion in the absence of specialized training and medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Accordingly, as no such training has been documented, the Veteran's opinion as to the diagnosis or etiology of kidney disease is afforded little probative weight. Considering the above, the Board finds that medical evidence does not support a conclusion that the Veteran suffers from chronic kidney disease as causally related to active service. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) on reasonable doubt are not applicable. The claim of entitlement to service connection for chronic kidney disease must be denied. 2. Entitlement to service connection for a sprain with talus osteochondral lesion of the bilateral ankles The Veteran contends that she suffers from bilateral ankle sprains as causally related to active service. As discussed in more detail below, the preponderance of the evidence is against her claim. In analyzing the Veteran's claim, the threshold inquiry before the Board is whether she 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, while the Veteran has a current diagnosis of bilateral ankle sprains, the preponderance of the evidence weighs against finding that her condition began during or is otherwise related to an in-service injury, event, or disease. Service treatment records were silent for any disqualifying abnormalities at enlistment in January 1988. A master problem list in September 1996, noted a right ankle sprain. In February 2010, the Veteran reported problems with bursitis, joint pain with swelling, bilateral hip, and ankle pain with increasing physical activity. The same month, a post deployment health assessment noted complaints of bilateral ankle pain. A report of medical assessment, dated June 2016, referenced foot pain. On examination in June 2016, no current diagnosis was rendered. During the clinical evaluation, the Veteran reported an onset of bilateral ankle pain in December 2008. She contends that she has a current diagnosis of osteochondral lesion of the talus and bilateral ankle sprains were indicated. Motrin was prescribed to treat pain. Physical therapy treatments improved her symptoms and surgical intervention was not required. Thereafter, the Veteran experienced intermittent pain with prolonged walking and standing. Worsening symptoms include sharp pain rated as an 8 on a 10-point scale, with a tingling sensation. The Veteran endorsed flare-ups and functional loss, intermittently. Range of motion testing revealed normal findings, bilaterally. There was no evidence of pain on examination, localized tenderness, pain to palpation, or crepitus. No loss of range of motion or functional loss was observed with repetitive use testing. Factors listed as contributing to the Veteran's disability included interference with sitting and standing. Muscle strength testing yielded normal findings. There was no evidence of muscle atrophy or ankylosis. Joint stability testing yielded normal findings. Diagnostic imaging found no evidence of traumatic arthritis. Following the clinical evaluation, the examiner concluded that there is no evidence of a current diagnosis. The examiner acknowledged the self-reported history of bilateral ankle sprains with osteochondral lesions. However, there was no pathology to render a diagnosis. On or about December 2016, the Veteran underwent corrective surgery to treat a bunion on the right foot. In February 2017, diagnostic imaging, confirmed that the Veteran was status post (s/p) right foot chevron osteotomy. Pursuant to a March 2019 Board remand decision, the Veteran was afforded a new VA examination. On examination in September 2019, a current diagnosis of a bilateral ankle sprain was identified. During the clinical interview, the Veteran reported an onset of intermittent sharp pain in the bilateral ankles. Pain was sometimes present while sitting. The Veteran attributes her symptoms to rigorous physical training performed while wearing military boots. Tramadol was prescribed to treat pain. No functional impairment was identified. Range of motion of the right ankle revealed dorsiflexion limited to 10 degrees and plantar flexion limited to 35 degrees. Range of motion itself does not contribute to functional loss. Pain was observed with dorsiflexion however, it did not contribute to functional loss. There was no evidence of localized tenderness, pain to palpation, crepitus, or pain with weight-bearing. Range of motion of the left ankle mirrored findings noted for the right ankle. No additional loss of function or range of motion was noted with repetitive use testing. The Veteran denied any experience with flareups, to include with repetitive use. Neither pain, weakness, fatigability, or incoordination significantly limits the Veteran's functional ability with repetitive use. No additional factors were listed as contributing to the Veteran's bilateral ankle disability. Muscle strength testing was normal, bilaterally. There was no evidence of muscle atrophy or ankylosis. Joint stability testing yielded normal findings. There was no evidence of shin splints, tendonitis, or fractures. The Veteran denied use of assistive devices. No diagnostic testing was performed in connection with this examination. No functional impairment was observed. Considering the Correia factors, passive motion findings mirrored those of active motion. There is no evidence of pain with passive motion of the right ankle. Following the clinical evaluation, the examiner noted that the Veteran was treated for a sprained ankle in March 2008. At separation, a physical examination made no reference to a chronic ankle condition in October 2016. Accordingly, as the record is silent for any evidence of chronicity, it is less likely than not (less than 50 percent probability) that the Veteran's current diagnosis of bilateral ankle strains was causally related to active service. In making all determinations, the Board has fully considered all medical evidence and lay assertions of record. Generally, the Veteran is presumed competent to report on the onset of current symptoms, their impact on daily living and employment, and such reporting is deemed credible. However, as to the etiology of a particular claimed disability, the issue of causation is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the instant case, there is no evidence that Veteran possesses the required training to diagnose a bilateral ankle condition or opine as to its etiology. To the extent her statements may be credible, the Board ultimately assigns greater probative weight to the medical evidence of record, to include in-service treatment for an ankle sprain and self-reported complaints of intermittent bilateral ankle pain since separation. On review of the record, the Board finds that the evidence fails to show a causal linkage between the Veteran's bilateral ankle condition and active service. Specifically, service treatment records confirm treatment for a right ankle sprain in 1996, and subsequent complaints of ankle pain in 2010 and 2016. The Veteran reports intermittent ankle pain since separation. While the Board notes the Veteran's report of interference with sitting and standing, no functional impairments were observed. Diagnostic imaging has consistently found no evidence of dislocation, fracture, or arthritis. Therefore, an etiological linkage between the Veteran's bilateral ankle condition and active service has not been established. In reaching the above conclusion, the Board has considered the findings of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). While there is no evidence of a current disability for VA rating purposes, a disability can still be found if there is evidence of functional impairment resulting from reported symptomatology of such severity as to result in economic impairment. However, in the present case, there is no evidence of functional impairment to such a degree. As such, a present disability is not demonstrated. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a bilateral ankle condition must be denied. REASONS FOR REMAND 1. Entitlement to service connection for neoplasms is remanded. The Veteran contends that she is entitled to service connection for skin neoplasms of uncertain behavior. In March 2019, the Board remanded the Veteran's claim to schedule a VA examination. To date, that directive remains outstanding. Accordingly, a remand is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's neoplasms of the skin, of uncertain behavior. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. (a) The examiner should identify if a diagnosis of neoplasms of the skin, of uncertain behavior is found and note the evidence in support thereof. (b) Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that neoplasms of the skin, of uncertain behavior was incurred in, caused by, or is otherwise related to any in-service disease, event, or injury. The examiner's attention is specifically called to complaints of skin lesions, hives, and rashes in service. As a part of the examination and/or opinion, the examiner must consider all prior diagnoses in the record and nexus opinions and explain or distinguish any variations in findings and conclusions. The examining physician/specialist should provide information to demonstrate that he or she is qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran's claims file. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information, or evidence would allow for a more definitive opinion. 2. Thereafter, re-adjudicate the Appellant's claim. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case and an adequate opportunity to respond before returning the matter to the Board for further adjudication, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims to be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.