Citation Nr: 21067872 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 14-22 929 DATE: November 5, 2021 ORDER Service connection for sinus disability, claimed as sinusitis, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317, is denied. Service connection for a right knee disability, claimed as pain, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317, is denied. Service connection for a bilateral ankle disability, claimed as pain, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317, is denied. REMANDED Entitlement to service connection for a headache disability, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 3.317, is remanded. FINDINGS OF FACT 1. The Veteran's currently diagnosed sinus disability has not been attributed to an undiagnosed illness and was not manifest during service or for many years thereafter, and the competent and credible evidence fails to establish an etiological relationship between this disability and his active service, to include service in the Persian Gulf. 2. The Veteran's currently diagnosed right knee disability has not been attributed to an undiagnosed illness and was not manifest during service or for many years thereafter, and the competent and credible evidence fails to establish an etiological relationship between this disability and his active service, to include service in the Persian Gulf. 3. The Veteran's currently diagnosed bilateral ankle disability has not been attributed to an undiagnosed illness and was not manifest during service or for many years thereafter, and the competent and credible evidence fails to establish an etiological relationship between this disability and his active service, to include service in the Persian Gulf. CONCLUSIONS OF LAW 1. The criteria for service connection for a sinus disability have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103 (a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.317. 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103 (a), 5103A; 38C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.317. 3. The criteria for service connection for a bilateral ankle disability have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103 (a), 5103A; 38 C.F.R. §§.159, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1986 to January 1989 and from September 1990 to July 1991, including service in the Southwest Asia theater of operations during the Persian Gulf War from October 1990 to June 1991, with additional service in the Alabama Army National Guard. In June 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In February 2018, the Board remanded the case for further development by the originating agency. In a December 2019 decision, the Board denied service connection for various disabilities, including a sinus disability, a right knee disability, a bilateral ankle disability, and a headache disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). In December 2020, the CAVC granted a Joint Motion for Remand, which vacated and remanded the December 2019 decision, as it pertained to the service connection claims for sinus, headache, right knee, and bilateral ankle disabilities. The case has been returned to the Board for further adjudication. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active service 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. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317; Interim Final Rule, 81 Fed. Reg. 71382 (Oct. 7, 2016). Unlike service connection on a direct basis, the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 do not require competent medical nexus of a link between the qualifying chronic disability and military service. Service connection is presumed unless there is affirmative evidence to the contrary, where the criteria are met. See 38 C.F.R. § 3.317 (c); Gutierrez v. Principi, 19 Vet. App. 1 (2004). The term "Persian Gulf Veteran" means a veteran who, during the Persian Gulf War, served on active military, naval, or air service in the Southwest Asia theater of operations. The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e)(2). The Board notes that the Veteran's service included service in Bahrain in 1991. The term "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal disorders). 38 C.F.R. § 3.317 (a)(2)(i). A medically unexplained chronic multi-symptom 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. See 38 C.F.R. § 3.317 (a)(2). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107 (2012); 38 C.F.R. § 3.102 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. The Veteran claims that he has headache, sinus, right knee, and ankle disabilities that are related to his service, including as due to an undiagnosed illness. At the June 2017 hearing, his representative stated that the Veteran was around a burn pit and exposed to environmental hazards during his service. Military Personnel Records confirm that the Veteran served in Southwest Asia and his assertions of environmental exposures are generally credible. However, the Board notes that the Veteran's reports of sinus problems, right knee pain, and bilateral ankle pain have been found to be related to his currently diagnosed right knee chondromalacia patella and superior patellar enthesopathic spur, bilateral ankle crepitus, bilateral ankle sprain, and acute sinusitis, which examiners have given an etiology for. See May 2019 and June 2021 VA examinations and opinions. As the Veteran's reported sinus problems, right knee problems, and bilateral ankle problems have been attributed to known clinical diagnoses, with known clinical etiology, despite his status as a Persian Gulf veteran, presumptive service connection based upon a qualifying chronic disability due to undiagnosed illness or medically unexplained chronic multisymptom illness is not warranted. See 38 C.F.R. § 3.317. In cases where a veteran applies for service connection under 38 C.F.R. § 3.317, but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C. §§ 38 U.S.C. §§ 1110 and 1131 is warranted. Accordingly, the Board will still consider whether entitlement to service connection can be granted on a direct or presumptive basis. 1. Service connection for a sinus disability, claimed as sinusitis Service treatment records (STRs) show treatment for sinus tenderness and clear nasal discharge in March 1986. Jun 1987 STRs note headaches and sinus problems. Probable upper respiratory infection (URI) was assessed. December 1987 STRs note complaints of congested sinuses, and the Veteran was diagnosed with a cold. An April 1991 redeployment examination indicates a normal clinical evaluation of the Veteran's sinuses. Post-service, private treatment records include a February 1993 report, which indicates treatment for chronic sinusitis. However, a February 2014 report shows that the Veteran denied having any sinus problems. Pursuant to the Board's August 2017 remand, the Veteran was afforded another VA examination with opinion in May 2019. A July 2019 addendum opinion was also submitted. The 2019 examiner determined that the Veteran's claimed sinus disability was less likely than not caused by or related to Gulf War environmental exposure, and not caused by or related to active duty military service. However, in reaching this conclusion, the examiner failed to discuss a March 1986 service treatment record (STR) documenting sinus tenderness. The examiner also failed to discuss the Veteran's repeated contention that he was exposed to burn pits during service. As such, the opinion is inadequate for evaluation purposes. In accordance with the Board's June 2021 remand, the Veteran was afforded another VA examination and medical opinion in June 2021. It was noted that the Veteran was diagnosed with acute sinusitis in 1993, but no current diagnosis of chronic sinusitis was made. The June 2021 VA examiner opined that the claimed sinus condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that STR's showed instances of nasal congestion and symptoms consistent with viral URI in 1986/1987. The examiner also noted that the Veteran reports exposure to burn pits and fumes that he contends caused his sinus trouble. However, the three instances of URI during service and his one isolated chronic sinusitis diagnosis in 1993 and no chronicity thereafter shown in the claims file do not indicate 'chronic sinusitis,' but rather acute sinusitis episodes. The examiner also noted that the Veteran was asymptomatic for the claimed condition examination at that time. The examiner noted further that literature states, acute sinusitis is most commonly due to viruses and is usually self-limiting. Approximately 90% of patients with colds have an element of viral sinusitis. Those with atopy commonly get sinusitis. It can be caused by allergens, irritants, viruses, fungi, and bacteria. The examiner concluded that a nexus has not been established. Service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given that the sinus symptoms in service resolved prior to the Veteran's discharge and the gap of time between service and the first notation of sinus symptoms, the Board does not find the Veteran's accounts of sinus symptoms since service to be credible. As such, the Board finds the June 2021 VA examiner's opinion is supported, and another examination is not necessary. There is no other probative evidence, VA or private, which indicates that the Veteran has a diagnosis of chronic sinusitis, related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of sinusitis, the Board notes that this passage of time weighs significantly against a finding of direct service connection for a sinus disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges the Veteran's assertion that he has sinusitis, due to events during his active service. The Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability. However, the Board finds that in the present case, the Veteran is not competent to provide a nexus between any currently diagnosed sinus disability and his active service or events therein, as it would require medical expertise to say that any currently diagnosed sinusitis, identified after service, is the result of an in-service disease or injury. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of any currently diagnosed sinus disability. 38 C.F.R. § 3.159 (a)(1), (2). For the reasons and basis stated above, the Board finds that service connection for a sinus disability, including sinusitis, is not warranted. In reaching this decision, the Board has considered benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 2. Service connection for a right knee disability STRs include a February 1988 note, which indicates the Veteran sustained a right knee injury while playing basketball. The assessment was rule out femoral patella pain syndrome. However, an April 1991 redeployment examination indicates a normal clinical evaluation of the lower extremities. Post-service, VA treatment records include an October 2018 report, which indicates a complaint of bilateral knee pain. On May 2019 VA knee and lower leg conditions DBQ examination, the Veteran presented with a history of twisting his knees in 1987/1988. Post-service, he sought medical care in approximately 1996/1997. In 2010, he received a cortisone injection from a private orthopedist, but had not returned to the orthopedist since that time. An X-ray examination of each knee indicated a superior patellar enthesopathic spur. The 2019 examiner determined that the Veteran's right knee disability was not caused by or related to Gulf War environmental exposures or military service, and explained that it was most likely caused by or related to his natural age and body mass index (BMI). However, the examiner did not adequately explain why that was the case "given the specifics of the [Veteran's] right knee history and disability." Additionally, the examiner did not discuss a February 1988 STR documenting complaints of a right knee injury that resulted in tenderness, edema, and crepitus. As such, the opinion is inadequate for evaluation purposes. In accordance with the Board's June 2021 remand, the Veteran was afforded another VA examination and medical opinion for his right knee in June 2021. The June 2021 VA examiner opined that the claimed right knee condition, diagnosed as chondromalacia patella and superior patellar enthesopathic spur, is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was while STR show one brief encounter for right knee pain, this resolved and was not recurrent per treatment records. Following this encounter, post-discharge records are silent under mention of right knee pain and giving out on examination with Dr. P. in 1996. The examiner also noted that no ortho notes are available to review or make a diagnosis related to the right knee in the most recent primary care physician (PCP) visits to support this claim. Therefore, the examiner concluded that no chronicity exists related to the right knee condition according to the evidence in the claims file, and a nexus has not been established. Service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given that the right knee symptoms in service resolved prior to the Veteran's discharge and the years-long gap between service and the first notation of right knee problems, the Board does not find the Veteran's accounts of right knee problems since service to be credible. As such, the Board finds the June 2021 VA examiner's opinion is supported, and another examination is not necessary. There is no other probative evidence, VA or private, which indicates that the Veteran's right knee disability may be related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of a right knee disability, the Board notes that this passage of time weighs significantly against a finding of direct service connection for a right knee disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that right knee arthritis was initially shown more than one year after the Veteran's discharge from service. The Board acknowledges the Veteran's assertion that his right knee disability is due to events during his active service. The Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability. However, the Board finds that in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed right knee disability and his active service or events therein, as it would require medical expertise to say that the current right knee disability, identified after service, is the result of an in-service disease or injury. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his right knee disability. 38 C.F.R. § 3.159 (a)(1), (2) (2019). For the reasons and basis stated above, the Board finds that service connection for a right knee disability is not warranted. In reaching this decision, the Board has considered benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 3. Service connection for a bilateral ankle disability STRs include a January 1988 clinical note, which indicates a left ankle inversion injury. A July 1988 clinical note indicates an assessment of Grade I left ankle strain. However, an April 1991 redeployment examination indicates a normal clinical evaluation of the lower extremities. Post-service, private treatment records dated in March 2000 indicate that the Veteran sustained a twisting injury to the right ankle while playing basketball. The diagnosis was severe right ankle sprain. On X-ray examination there was considerable soft tissue swelling about the lateral aspect of the ankle. A May 2000 X-ray examination showed that the swelling overlying the lateral malleolus had subsided. VA treatment records dated in August and September 2007 indicate a complaint of left ankle edema. On May 2019 VA ankle conditions DBQ examination the Veteran presented with a history of twisting his ankle in 1987/1988, during which he damaged a ligament. Post-service, he sought treatment from a podiatrist in 2015 to 2017. He stated that he received a cortisone injection in 2015. He was diagnosed with bilateral ankle crepitus. The 2019 examiner determined that the Veteran's bilateral ankle disability was "most likely caused by and related to [his] natural progressive age and BMI." However, the examiner did not support this conclusion with information specific to the Veteran, as opposed to "general, global information." Moreover, the examiner failed to discuss a February 1988 STR noting pain in both legs and mild shin splints; an April 1988 STR noting intense, pulsating left ankle pain and a first degree sprain; and a July 1988 STR noting pain and swelling of the left ankle and possible right ankle sprain. In accordance with the Board's June 2021 remand, the Veteran was afforded another VA examination and medical opinion for his bilateral ankle disability in June 2021. The June 2021 VA examiner opined that the Veteran's claimed bilateral ankle disability, diagnosed as a bilateral ankle sprain, was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that while the Veteran's condition of right ankle injury does show evidence of injury during service in STR's on a few occasions, these were acute and expected to have resolved. The Veteran's post-discharge records indicate that he hurt his right ankle playing basketball in 2000 (approx. a decade following service) and records are silent during that duration. Additionally, the Veteran has not submitted evidence showing chronicity of the claimed bilateral ankle condition since this event. The examiner concluded that a nexus has not been established. Service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given that the bilateral ankle symptoms in service resolved prior to the Veteran's discharge and the years-long gap between service and the first notation of ankle problems, the Board does not find the Veteran's accounts of ankle problems since service to be credible. As such, the Board finds the June 2021 VA examiner's opinion is supported, and another examination is not necessary. There is no other probative evidence, VA or private, which indicates that the Veteran's bilateral ankle disability may be related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of an ankle disability, the Board notes that this passage of time weighs significantly against a finding of direct service connection for a right or left ankle disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges the Veteran's assertion that his bilateral ankle disability is due to events during his active service. The Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability. However, the Board finds that in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed right or left ankle disability and his active service or events therein, as it would require medical expertise to say that the current right or left ankle disability, identified after service, is the result of an in-service disease or injury. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his bilateral ankle disability. 38 C.F.R. § 3.159 (a)(1), (2). For the reasons and basis stated above, the Board finds that service connection for a bilateral ankle disability is not warranted. In reaching this decision, the Board has considered benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. REASONS FOR REMAND 1. Entitlement to service connection for a headache disability is remanded. STRs are void of findings, complaints, symptoms, or any diagnosis related to headaches. An April 1991 redeployment examination indicates a normal clinical neurologic examination. Post-service, private treatment records include a February 2006 report which indicates a complaint of headaches. An October 2011 report indicates a complaint of headaches and a medical history significant for migraines in the Veteran's family. Associated symptoms included rhinorrhea and sinus pressure. The physician diagnosed migraines. VA treatment records include an August 2017 report, which indicates that headaches resolved with preventive propranolol. On May 2019 VA headaches DBQ examination, the Veteran presented with a history of a diagnosis of migraine headaches since October 2011. He stated that he had periodic headaches since approximately 1987/1988 and 1990/1991. Post-service, private treatment records include an October 2011 report, which indicates a complaint of chronic headaches. The 2019 examiner determined that the Veteran's headaches were less likely than not caused by or related to Gulf War environmental exposure, and not caused by or related to active duty military service. However, the examiner did not discuss whether potential exposure to burn pits could have caused the headache disability. As such, the opinion is inadequate for evaluation purposes. In accordance with the Board's June 2021 remand, the Veteran was afforded another VA examination and medical opinion for his claimed headache disability in June 2021. The June 2021 VA examiner opined that the claimed headache disability, diagnosed as migraines, was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that STR's and immediate post-service medical records are silent for the noted diagnosis. The examiner also noted that headaches during service were reported with sinus congestion. The Veteran was first noted in post-discharge medical records in 2006 to have symptoms consistent with migraines. This is many years after separation. The examiner concluded that due to the onset of symptoms being in 2006, a nexus has not been established. The examiner also noted that medical literature indicates that migraines have a strong genetic component, and the risk of migraines in ill relatives is three times greater than that of relatives of non-ill subjects, but there has not been any pattern of inheritance identified. Evidence in the claims file reflects that the Veteran has a family history of migraines. The examiner also noted that the Veteran's statements taken into consideration, including frequent exposures to environmental hazards and burn pits/fuel. However, the examiner did not explain why the Veteran's potential exposure to burn pits and fuel during his active service in the Persian Gulf did not cause his headache disability. As such, the Board finds the opinion incomplete and therefore, inadequate for evaluation purposes. As such, remand to the AOJ for an adequate addendum opinion is warranted. Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain an addendum opinion on the etiology of the Veteran's claimed headache disability. Schedule the Veteran for another in-person examination only if the examiner deems it necessary to render the requested opinion. After reviewing the entire claims file, including this remand, the examiner must address the following questions: 2. Identify the Veteran's objective indications of a disability. See 38 C.F.R. § 3.317(a)(3). 3. By history, physical examination, or laboratory testing, can the Veteran's objective indications of a headache disability be attributed to a known clinical diagnosis? 4. If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness was not incurred during service in the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? 5. If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's disability (1) inconclusive, (2) partially understood, or (3) fully understood? 6. If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed disability was incurred in, or is otherwise related to service? The examiner must specifically discuss the Veteran's testimony and other lay statements regarding exposure to burn pits during service. See e.g., June 2017 Transcript; September 2019 VA Form 21-4138. 2. Readjudicate the Veteran's remaining claim. If the claim remains denied, issue a supplemental statement of the case, and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.