Citation Nr: 21062836 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-18 640 DATE: October 12, 2021 ORDER Service connection for a low back disability is denied. Service connection for a bilateral ankle disability is denied. REMANDED Service connection for migraines is remanded. Service connection for chronic fatigue syndrome is remanded. Service connection for a bilateral hip disability is remanded. Service connection for a neurological disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a low back disability began during active service or are otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a bilateral ankle disability began during active service or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for Service connection for a bilateral ankle disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1975 to September 1995. His service decorations include the Southwest Asia Service Medal with 3 Bronze Service Stars. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision. The Board remanded the claims in August 2019 in order to obtain updated medical records and addendum medical opinions. The Board finds that there has been substantial compliance with the remand directives for the claims for low back and bilateral ankle disabilities. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Low Back Disability The Veteran contends that he has a low back disability that is related to service. VA medical records show the Veteran was diagnosed with a lumbosacral strain with degenerative disc disease in November 2014. Additionally, the Veteran underwent a VA examination in January 2020 which confirmed this diagnosis. These findings illustrate a current diagnosis of a low back disability, fulfilling the first element of a service connection claim. The Veteran's service treatment records show the Veteran injured his back playing basketball in October 1985. Therefore, the second element of a service connection claim, an in-service injury, has been met. In January 2020, the Veteran underwent a VA examination in order to determine the etiology of this disability. The examiner confirmed a diagnosis of degenerative disc disease of the spine. However, the examiner noted that this degeneration was not related to the Veteran's service, namely his back injury sustained in October 1985. The examiner noted that there was no further treatment noted in the Veteran's service record and his back showed normal findings during his separation examination. Further, the Veteran's treatment records are silent for any back issues until November 2014 where degenerative disc disease was noted. On the contrary, an October 2013 note showed the Veteran had no back pain on examination. Therefore, there is no nexus between the Veteran's service and his current back disability. The Board acknowledges the Veteran's own assertions in support of his claim. However, as a layperson without the appropriate medical training and expertise, the Veteran has not demonstrated the competency to opine as to the etiologies in this matter. Furthermore, neither the Veteran nor his representative has presented or identified any additional medical opinion. Bilateral Ankle Disability The Veteran contends that he has a bilateral ankle disability that is related to service. VA medical records show the Veteran was diagnosed with a lateral collateral ligament sprain of both the right and left ankle in 2019. Additionally, the Veteran underwent a VA examination in January 2020 which confirmed this diagnosis. These findings illustrate a current diagnosis of a bilateral ankle disability, fulfilling the first element of a service connection claim. The Veteran's service treatment records note right ankle injuries in March 1977, June 1977, and November 1980, as well as left ankle injuries in November 1987 and January 1988. These in-service injuries fulfil the second element of a service connection claim. In January 2020, the Veteran underwent a VA examination in order to determine the etiology of this disability. The examiner ultimately concluded that it was less likely than not that the Veteran's bilateral ankle disability was related to his active duty service, including the injuries noted in the Veteran's service treatment records. Specifically, the examiner found that the Veteran's ankles were noted as normal on his separation exam. The examiner went on to conclude that the Veteran's current bilateral ankle disability is less likely than not incurred in, or otherwise related to, the Veteran's military service. The Board acknowledges the Veteran's own assertions in support of his claim. However, as a layperson without the appropriate medical training and expertise, the Veteran has not demonstrated the competency to opine as to the etiologies in this matter. Furthermore, neither the Veteran nor his representative has presented or identified any additional medical opinion or other competent evidence that supports the Veteran's claim. REASONS FOR REMAND Migraines and Bilateral Hip Disability As stated previously, the Veteran's claims were previously remanded for further development by the Board. With regards to the Veteran's claims for migraines and a bilateral hip disability, the Board finds that there has not been substantial compliance with the August 2019 remand directives and further remand is needed to correct this error. With regards to the Veteran's claim for headaches, the examiner opined in the January 2020 opinion that the Veteran was negative for chronic headaches upon separation. However, the Veteran's February 1995 separation examination noted headaches. As the examiner relied on an incorrect factual basis in rendering their opinion, remand is required to obtain an addendum opinion. Regarding the claim for a bilateral hip disability, the examiner was asked to specifically address the Veteran's noted in-service hip issues, including, but not limited to, a left hip hematoma sustained in June 1984. The examiner's opinion failed to address this in-service injury, simply stating that the Veteran's hip disability was not chronic in-service, nor was this condition noted during the retirement examination. Remand is required in order to properly address this in-service injury as requested in the August 2019 Board remand. Chronic Fatigue Syndrome A January 2020 VA examination states that the Veteran's fatigue was the result of lack of sleep. Additionally, an October 2020 addendum opinion found the Veteran's fatigue to be most likely a combination of his chronic medical conditions as well as poor sleep hygiene. Additionally, the examiner noted PTSD as one of the Veteran's chronic medical conditions. Therefore, the issue of whether the Veteran's fatigue is secondary to the Veteran's service-connected PTSD has been raised by the record. To date, there is no opinion regarding whether the Veteran's chronic fatigue syndrome is secondary to any of the Veteran's service connected disabilities, including PTSD. An opinion should be obtained on remand. Neurological Disability With respect to the Veteran's claim of service connection for a neurological disability, the claim is inextricably intertwined with the claim for service connection for a bilateral hip disability. In a January 2020 opinion a VA examiner found that the Veteran's diagnosed right lower extremity radiculopathy was more likely than not related to the Veteran's low back and/or hip condition. As the Veteran's right lower extremity radiculopathy is related to the Veteran's bilateral hip disability, this claim is inextricably intertwined with the claim for a bilateral hip disability. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current headache disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including sinusitis headaches documented in June 1978 and a history of occasional headaches documented during a February 1995 separation examination. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current bilateral hip disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including a left hip hematoma sustained in June 1984. 3. Obtain VA medical opinions to determine the nature and etiology of any fatigue disability. The examiner must review the claims file, including previous VA examinations, and should note that review in the report. The rationale for all opinions should be provided. The examiner should explicitly provide the following opinions: (Continued on the next page) (a.) Is it at least as likely as not (50 percent or greater probability) that any fatigue disability is due to or the result of any service-connected disabilities, including PTSD? (b.) Is it at least as likely as not (50 percent or greater probability) that any fatigue disability has been aggravated by any service connected disabilities, including PTSD? JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.