Citation Nr: 21062045 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-15 934 DATE: October 6, 2021 ORDER Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left ankle disability is remanded. FINDING OF FACT The weight of the competent and credible evidence is against finding that the Veteran's low back degenerative arthritis manifested in service or within one year of service; and is not etiologically caused by an in-service injury, event or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training in the U.S. Army National Guard from August 1996 to December 1996, and on active duty from October 2004 to January 2006, and from September 2010 to September 2011 with service in Southwest Asia. In addition, the Veteran served in the National Guard until August 2013. This matter comes before the Board of Veterans' Appeals (Board) from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board video conference hearing before the undersigned Veterans' Law Judge in March 2019. A transcript of the hearing has been associated with the claims file. Previously, the claim was before the Board in July 2019 and was remanded for additional development, which has been completed and associated with the claims file. As to the claim for entitlement to service connection for a low back disability, the Board finds there has been substantial compliance with the prior remand directives, and the claim is again before the Board. As to the claims for entitlement to service connection for a right foot disability and a left ankle disability, additional development is warranted and is discussed in greater detail below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. In addition, the Board notes that the Veteran served in the Southwest Asia theater of operations during the applicable time period. 38 C.F.R. § 3.317 (e). Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317 (b). There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification. There must be a minimum of a six-month period of chronicity. There must be no affirmative evidence that relates the illness to a cause other than being in the Southwest Asia Theater of operations during the Persian Gulf War. If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98 (Aug. 3, 1998). For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a)(2)(i). For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). For purposes of this section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Compensation shall not be paid under this section, however, if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317 (c). 1. Entitlement to service connection for a low back disability The Veteran contends that service connection is warranted for a low back disability. The Veteran contends that his current symptoms of low back pain and arthritis are related to service and an in-service injury. Lay statements from a fellow service member reported that during training in July 2009 the Veteran was bounced up and down in the back of a 5-ton vehicle and experienced back pain afterwards and was ordered to light duty. In March 2019 the Veteran testified that while being transported in the back of a 5-ton troop carrier the vehicle hit a stump at a high rate of speed, and he was thrown around the back of the truck and immediately felt low back pain. The Veteran testified to ongoing low back treatment and that his low back pain makes climbing up and down ladders at work difficult. The Veteran testified to daily flare ups of low back pain and regular use of over-the-counter pain medication. The Veteran is competent to describe his current symptoms, in-service events, and the occurrence of ongoing symptoms, and to this extent, these statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Veteran has low back arthritis that began during service, manifested during the applicable presumptive period, or is at least as likely as not caused by an in service, injury or disease. The Veteran has a diagnosis of degenerative arthritis of the spine. The Veteran's service treatment records (STRs) and service personnel records have been associated with the claims file. January 2005 treatment records note reports of low back pain and after examination the Veteran was directed to return to duty and was prescribed use of motrin for 3 days. July 2009 treatment records note the Veteran was seen after riding in a 5-ton truck which hit a bump and resulted in straining his back during an active duty for training exercise. July 2009 treatment records note reports of thoracic and lumbar pain status a post motor vehicle accident. Imaging noted that no fracture or focal destructive process was seen and demonstrated normal height and alignment. Based on the Veteran's statements, testimony and treatment records the Board finds an in-service event and injury. However, the Veteran did not report, nor is there an indication of continued low back symptomology, or a diagnosed disability after the July 2009 incident. In an August 2011 post deployment questionnaire, the Veteran denied any low back abnormalities or symptoms specifically noting only left shoulder discomfort. A private opinion from March 2019 has been associated with the claims file. The Veteran's family practitioner noted that he has been treating the Veteran for ongoing symptoms associated with low back pain. The private opinion notes the Veteran undergoes weekly chiropractic treatment and has ongoing low back pain with occasional bilateral radiculopathy. The opinion noted that it is reasonable that the Veteran's reported injury is either the direct result of or was exacerbated by his military duty. The Board finds this private opinion is entitled to less probative weight as the private opinion failed to provide a thorough and reasoned rationale for the conclusions reached. The Board has considered the March 2019 private opinion but finds such is entitled to less probative weight. The Veteran was afforded a VA examination in March 2020. The examiner noted degenerative arthritis of the spine. The Veteran reported an in-service injury when he was thrown around in the back of a 5-ton troop carrier when the driver hit a stump. The Veteran reported immediate low back pain, which has continued since. Flare ups were noted with sharp back pain, back spasms, and numbness in his legs. Functional loss was noted with a limping gait, favoring the right side and a normal stride with pain. Range of motion testing was normal, with no pain. Repetitive use testing did not result in any additional loss of motion. No muscle spasms or guarding was noted. Muscle strength testing and a reflex and sensory exam were normal. No ankylosis was noted. X-ray imaging noted arthritis with mild degenerative changes. The examiner noted that the Veteran's back condition does not impact his ability to work. The examiner found that the Veteran's current low back condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran has a diagnosis of mild degenerative arthritis of the spine. The examiner noted that based on a review of the claims file and the Veteran's medical records any currently diagnosed low back condition to include low back arthritis is less likely than not incurred in or caused by an in-service injury or disease including a July 2009 in-service injury. The examiner noted that arthritis does take years to develop, however the most recent X-ray imaging performed in February 2020 noted only mild degenerative changes. Which would be 11 years after the July 2009 in-service injury, and as such the examiner found that the Veteran's current mild degenerative changes would not correspond with the in-service injury in July 2009. Further, the examiner noted that there is no evidence of continuity of the same symptomology since service. VA and private treatment records have been associated with the claims file. These treatment records do not contradict the VA examination and are absent indications between the Veteran's current low back arthritis and an in-service disease or injury. The Veteran's representative in August 2021 correspondence generally contends that service connection is warranted due to an injury in-service. The Board has considered the Veteran's and his representative contentions however, VA benefits may not be granted based on speculative opinions. Rather, opinions must be made by competent professionals and be based on a rationale that is clear to the Board. The Veteran's representative is not competent to provide a medical opinion. Furthermore, even if the representative was found to be a competent source of opinion, evidence favorable to a veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service or a service-connected disability is insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102. That evidence must be both competent and credible. Here, there is no such balance of evidence. After consideration of all the evidence of record the Board finds that the weight of the evidence is against finding that service connection for the Veteran's low back disability is warranted. The Board concludes that service connection for degenerative arthritis is not warranted on a direct basis as the Veteran's current low back disability was not caused by service. The Veteran's reports of the onset of his arthritis in-service warrant low credible and probative weight as they are not consistent with treatment records in-service. While the Veteran reports that his current low back arthritis is related to service, and an in-service injury, the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier and as such the Veteran is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and credible than the lay opinions of record. The competent medical evidence of record including the VA examination in March 2020 is entitled to significant probative weight. The examiner noted mild degenerative arthritis of the spine. The examiner found that the Veteran's current low back condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran has a diagnosis of mild degenerative arthritis of the spine. The examiner noted that arthritis does take years to develop, however the most recent X-ray imaging performed in February 2020 noted only mild degenerative changes. Which would be 11 years after the July 2009 in-service injury, and as such the examiner found that the Veteran's current mild degenerative changes would not correspond with the in-service injury in July 2009. Further, the examiner noted that there is no evidence of a continuity of the same symptomology since service. The Board finds that the opinion was based on an adequate rationale and is not contradicted by other opinions. The Board finds that direct service connection is not warranted as the Veteran's current low back disability is not related to service. The Board notes that STRs note in July 2009 treatment records the Veteran was seen after riding in a 5-ton truck which hit a bump and resulted in him straining his back during an active duty for training exercise. July 2009 treatment records note reports of thoracic and lumbar pain status a post motor vehicle accident. In an August 2011 post deployment questionnaire, the Veteran denied any treatment for his back and mentioned only left shoulder discomfort. Imaging noted no fracture or focal destructive process was seen and demonstrated normal height and alignment. The Board has thoroughly considered the Veteran's lay statements and testimony however, the Board gives more probative weight to the competent medical evidence. In addition, the Board has considered the March 2019 private opinion. However, the Board gives significant probative weight to the March 2020 VA examination. As such the Board finds that the Veteran's current low back disability is less likely than not related to active service. The Board notes that although the Veteran had service in Southwest Asia during the applicable time period, he cannot establish service connection for an undiagnosed illness under 38 C.F.R. § 3.317, because the Veteran's low back disability has a clear and identifiable diagnosis and has not been shown to be undiagnosed or part of a medically unexplained chronic multis symptom illness. As to presumptive service connection the Veteran's degenerative arthritis did not manifest until many years post-service. The Board concludes that while the Veteran has arthritis, which falls within a chronic disease under 38 U.S.C. § 1101 (3)/38 C.F.R. § 3.309(a), however such was not chronic in service nor did this manifest to a compensable degree in service or within the presumptive period, and continuity of symptomatology is not established. The Veteran's arthritis was not noted during service or within one year of separation. See Walker, 708 F.3d 1331. Service records do not support an onset of the Veteran's arthritis in active service. Based on the probative evidence of record the Board finds that the Veteran's arthritis did not manifest within the one-year period after service and service connection is not warranted on a presumptive basis. Private treatment records note degenerative changes of the spine in February 2020, which is over 10 years after his separation from service in 2011. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a low back disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a right foot disability 2. Entitlement to service connection for a left ankle disability The Veteran contends that service connection is warranted for a right foot disability. In addition, the Veteran contends that service connection is warranted for a left ankle disability. The Veteran testified in March 2019 that he injured his right great toe in September 2004 while packing up equipment for his company to prepare for deployment and a bundle of 5 bows (a curved support bar for a tarpaulin over the truck) for a 5-ton vehicle fell on his foot. The Veteran testified that this injury continues to impact his gait and walking speed. In addition, the Veteran reports that his ongoing left ankle symptomology is related to an in-service injury and his service generally. The Veteran testified in March 2019 that while doing hand to hand combat training he twisted his ankle in November 2004 and sprained his ankle and was in an air cast and crutches for a week. The Veteran also testified that after his injury he noticed periods of ankle pain during his deployment and instances of ankle swelling. Previously, the Veteran's claims were before the Board in July 2019 and were remanded for additional development. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted to obtain supplemental VA opinions. VA outpatient treatment records dated in 2016 and 2017 show treatment for right foot and left ankle pain. X-rays obtained in April 2016 show a moderate hypertrophic spur on the head of the first metatarsal of the right foot and a small plantar calcaneal spur but normal osseous structure of the left ankle. As a result of the prior Board remand the Veteran was afforded a VA foot examination in March 2020. The examiner noted that the Veteran did not have a current diagnosis associated with his claimed right foot disability. The examiner noted the Veteran's in-service injury to his right great toe in September 2004. However, the examiner failed to address the Veteran's reports of pain and whether such rises to the level of functional impairment. The examiner noted that Veteran's in-service injury where the Veteran dropped a bow on his right great toe. Further, the examiner provided conflicting information noting no right foot disability, but also noting that the Veteran reports almost no movement in the first joint of his right foot which causes an altered gait and results in his walking differently, and he regularly uses orthotics and over the counter pain medication. The examiner noted reports of pain and flare ups which can impact the Veteran's function. The examiner also noted that pain did not contribute to functional loss as the Veteran had normal range of motion of the right toe. However, the examiner noted pain with weight bearing and on active motion, and the Veteran has a limping gait. VA treatment records note ongoing reports of right foot pain and pain of the right first metatarsophalangeal joint with decreased range of motion. The Veteran reports difficulty bending his toe and increased pain with walking and weight bearing activities. January 2020 VA treatment records and X-ray imaging noted minimal degenerative changes of the right foot. Further, the Veteran reports difficulty climbing up and down ladders at work in part due to his right foot disability. As a result of the prior Board remand the Veteran was also afforded a VA ankle examination in March 2020. The Veteran reported an injury in November 2004. Currently the Veteran reports left ankle pain with prolonged walking, and that he is not undergoing any current treatment or medications. The examiner noted that the Veteran does not have a current diagnosis associated with any claimed left ankle condition. The examiner noted that initial X-rays were done at the time of the 2004 injury and were negative. Repeat X-rays done in February 2020 were also negative. The Veteran was seen and treated for a left ankle strain in-service in November 2004 with discomfort and mild tenderness and swelling. The examiner noted that the Veteran's current left ankle symptoms impact his ability to perform occupational tasks in that he has pain with prolonged walking. The examiner noted the Veteran did not have a left ankle disability; however, also noted that the Veteran's symptoms of left ankle pain impact his ability to perform occupational tasks. Further, the examiner failed to fully address the entirety of the Veteran's lay contentions that his current left ankle pain and symptomology is attributed to his in-service left ankle sprain in November 2004, as well as the wear and tear of his two deployments two Southwest Asia. The Veteran testified in March 2019, that while deployed he experienced ongoing left ankle pain and swelling and treated such with over the counter pain medications. The Board notes that the U.S. Court of Appeals for the Federal Circuit has found the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." Saunders v. Wilkie, 886 F.3d 1356, 136768 (Fed. Cir. 2018). Here the Veteran reports pain in his right foot and his left ankle which impacts him climbing up and down ladders at work and in regular use including completing activities of daily living, including prolonged walking. In light of Saunders, a remand is needed to allow a VA examiner to fully address the Veteran's reports of right foot pain, and left ankle pain, as pain alone can serve as a functional impairment and therefore qualify as a disability. The Board finds a remand is warranted for a supplemental VA opinion regarding the Veteran's right foot disability and to fully address direct and presumptive service connection. In addition, the Board finds a remand is warranted for a supplemental VA opinion regarding the Veteran's left ankle and to fully address direct and presumptive service connection. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the Veteran's current right foot and left ankle symptomology and disabilities and whether: Right foot 1. Identify any current right foot disability, to include symptoms of pain, altered gait, and difficulty walking prolonged distances. The examiner should address whether pain results in functional impairment and therefore qualifies as a disability if warranted. (a.) Is it at least as likely as not (a 5 0 percent probability or greater) that the Veteran's right foot disability is caused by an in-service injury, event or disease, including September 2004 injury? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right foot arthritis (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? Left ankle 2. Identify any current left ankle disability, to include symptoms of pain, swelling, altered gait, and difficulty walking prolonged distances. The examiner should address whether pain results in functional impairment and therefore qualifies as a disability if warranted. (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right foot disability is caused by an in-service injury, event or disease, including the November 2004 injury and wear and tear from two Southwest Asia deployments? (b.) If arthritis is found, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's left ankle arthritis (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the March 2020 VA examinations, the examiner noted that the Veteran did not have a current diagnosis associated with his claimed right foot disability. Further, the examiner provided conflicting information noting no right foot disability, but also noting that the Veteran reports almost no movement in the first joint of his right foot which causes an altered gait and results in his walking differently, and he regularly uses orthotics and over the counter pain medication. The examiner noted reports of pain and flare ups which can impact the Veteran's function. The examiner also noted that pain did not contribute to functional loss as the Veteran had normal range of motion of the right toe. However, the examiner noted pain with weight bearing and on active motion, and the Veteran has a limping gait. In addition, the examiner noted that the Veteran does not have a current diagnosis associated with any claimed left ankle condition. The examiner noted that the Veteran's current left ankle symptoms impact his ability to perform occupational tasks in that he has pain with prolonged walking. January 2020 VA treatment records note X-ray imaging in January 2020 noted minimal degenerative changes of the right foot. In addition, attention is invited to the Veteran's March 2019 testimony, reporting that he injured his right great toe in September 2004 while packing up equipment for his company to prepare for deployment and a bow (curved support for a tarpaulin over the bed) for a 5-ton vehicle fell on his foot. The Veteran testified that this injury continues to impact his gait and walking speed. The Veteran reports that his ongoing left ankle symptomology is related to an in-service injury and his service generally. The Veteran testified while doing hand to hand combat training he twisted his ankle in November 2004 and sprained his ankle and was in an air cast and crutches for a week. The Veteran testified that after his injury was worsened during the wear and tear of his two deployments to Southwest Asia when he noticed period ankle pain during his deployment and instances of ankle swelling. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.R. Kardian, 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.