Citation Nr: 21076664 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-47 122 DATE: December 27, 2021 ORDER Service connection for loss of left leg below the knee (previously claimed as a left ankle disability) is granted. REMANDED Service connection for sleep apnea is remanded. Service connection for an acquired psychiatric disability, to include depression, to include as secondary to service-connected loss of left leg below the knee, is remanded. FINDING OF FACT The Veteran's loss of left leg below the knee is related to his in-service left ankle injury that occurred during a period of inactive duty for training. CONCLUSION OF LAW The criteria for service connection for loss of left leg below the knee are met. 32 U.S.C. § 502; 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army Reserves from August 1990 to December 1990, and in the Oklahoma Air National Guard from January 1996 to June 1996, each for purposes of active duty for training (ACDUTRA). He did not otherwise have active federal military service. Yet, the Veteran had additional service in the U.S. Army Reserve and Oklahoma Army and Air National Guard, some of which constituted inactive duty for training (INACDUTRA), between December 1990 and July 2001. Important to this appeal, the Veteran served on INACDUTRA in the Oklahoma Air National Guard from May 6, 1995, to May 7, 1995. This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from separate decisions of the Muskogee, Oklahoma, Regional Office of the United States Department of Veterans Affairs (VA): A July 2013 decision that denied service connection for a left ankle disability; A November 2015 decision that denied service connection for (i) loss if left leg below the knee and (ii) sleep apnea; and A February 2016 decision that denied service connection for depression. Following a May 2019 Board hearing before the undersigned Veterans Law Judge, the Board issued a decision in October 2019 denying all claims for service connection. The Veteran subsequently appealed the Board's decision to the United States Court of Appeal for Veterans Claims (Court). Based on a Joint Motion to Remand, the Court entered an order on October 5, 2020, vacating the Board's October 2019 decision and remanding the appeal back to the Board for readjudication. Following remand from the Court, the Board issued an order in April 2021 remanding each claim for service connection to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain outstanding military service records associated with the Veteran's Reserve and National Guard service, which the VA Regional Office accomplished. The Board also instructed the VA Regional Office to obtain a new VA examination and opinion addressing the etiology of the Veteran's left leg disability and sleep apnea, which the VA Regional Office accomplished. Based on the analysis that follows, remand is again required for the claims for service connection for sleep apnea and acquired psychiatric disorder. Stegall v. West, 11 Vet. App. 268, 271 (1998). Periods of Service Because the Veteran served in the U.S. Army Reserve and Oklahoma Air and Army National Guard, which is relevant to this appeal, the Board provides the following discussion for reference. In order to be entitled to VA disability compensation, an eligible claimaint must be a "veteran." Cropper v. Brown, 6 Vet. App. 450, 452 (1994). A "veteran" is defined as a person who: (1) served in the "active military, naval, or air service," and (2) who was discharged or released therefrom under conditions other than dishonorable. See 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The phrase "active military, naval, or air service" under 38 U.S.C. § 101(24) and 38 C.F.R. § 3.6(a) includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA in which the individual concerned was disabled or died from an injury (but not a disease) incurred or aggravated in line of duty. "Active duty for training" means, among other things, "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C. § 101(22)(A); 38 C.F.R. § 3.6(c). This refers to the two weeks of annual training which each Reservist or National Guardsman must perform each year. "Inactive duty for training" means, among other things, "duty (other than full-time duty) prescribed for Reserves . . . by the Secretary concerned under section 206 of title 37 or any other provision of law." 38 U.S.C. § 101(23)(A); 38 C.F.R. § 3.6(d). This refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. 32 U.S.C. § 502(a). Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Analysis 1. Service connection for loss of left leg below the knee (previously claimed as a left ankle disability) is granted. As explained in the Board's April 2021 remand order, in May 2010, the Veteran underwent amputation of his left leg below the knee, which occurred post-military service. Thus, when he filed his 2012 claim for service connection for a left ankle disability, it should have been considered a claim for service connection loss of left leg below the knee as his left ankle was no longer present. This is important because he has continuously asserted that he experienced a left ankle injury in service, which eventually resulted in amputation. Thus, his claim for service connection for loss of left leg below the knee is directly premised on his left ankle disability. This is to say, the Veteran's loss of left leg below the knee is a continued symptom of his initial left ankle disability. Accordingly, the Board will analyze whether the Veteran's left ankle disability led to his loss of left leg below the knee such that they are the same disability for purposes of VA service connection. First element: A current disability As to the first element of service connection, a current disability, VA recognizes that conditions without a direct diagnosis may still be "disabilities" for purposes of service connection. The U.S. Court of Appeals for the Federal Circuit has held that pain alone may constitute a disability, even without an identifiable underlying pathology. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). A veteran's pain, however, must amount to a functional impairment to constitute a disability. Id. at 1367. "Functional impairment," the Federal Circuit noted, is defined as the inability of the body or a constituent part of it " 'to function under the ordinary conditions of daily life including employment.' " Id. at 1363 (quoting 38 C.F.R. § 4.10). In other words, pain alone can qualify as a disability where it diminishes the body's ability to function, even where it is not diagnosed as connected to a current underlying condition. Id. In this case, the Board finds that the Veteran did have a left ankle disability that resulted in functional limitation prior to its amputation, which included osteochondral lesion of the talus. As discussed later, his left ankle disability progressively worsened to the point where it needed to be amputated. He currently has loss of left leg below the knee. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof The Veteran has consistently asserted that he experienced a left ankle injury during a drill weekend in May 1995 as part of his INACDUTRA. Although the Veteran did not provide an exact date of the injury, the Board finds the evidence of record corroborates his assertion. First, he presented to the Eastern Oklahoma Orthopedic Center in June 1995 stating that in May 1995 he was walking down some stairs and slipped injuring his left ankle. A June 28, 1995, in-service medical treatment record documented treatment of the Veteran's left ankle pain and swelling. A July 1995, in-service medical treatment record also documented treatment of the Veteran's left ankle that he injured in May 1995 when he slipped on stairs. He continued to have medical treatment for his left ankle throughout 1995 and into 2000. Due to his left ankle disability, it was recommended that he be separated from the Oklahoma Air National Guard in 2001. According to the Veteran's military service records, he had one weekend from May 6, 1995, to May 7, 1995, during which he served on INACDUTRA. The Board finds the evidence of record sufficiently supports the Veteran's assertion that during either May 6 or 7, 1995, during his INACDUTRA, he suffered a left ankle injury that continued to manifest as pain, swelling, stiffness, and other symptoms throughout his service and thereafter. His military records, and in-service and post-service medical records, all support his assertions, thus lending to his credibility. This in-service event/injury is the direct basis of his claim for service connection for loss of left leg below the knee. Therefore, the Board finds the second element is satisfied. Third element: A causal link The Veteran submitted a private medical opinion dated December 30, 2015, from Dr. A.G.L. She indicated that she had reviewed the Veteran's orthopedic history in light of his left ankle injury that occurred during his period of INACDUTRA. She opined that the Veteran's left ankle disability, prior to amputation, was sustained as a direct result of his injury during his period of INACDUTRA. She reasoned that there was no evidence that the Veteran had a left ankle injury prior to his military service. His injury in 1995 was consistent with the development of his left ankle disability. The Board finds this opinion credible and probative. Accordingly, the Board finds that the Veteran's left ankle disability, pre-amputation, was related to his military service. Later, he submitted another medical opinion from Dr. A.G.L. dated June 19, 2019, in which she opined that his left ankle disability led to his amputation. She reasoned, after review of his medical history, he sustained an injury to his left ankle during service, which worsened afterwards. He underwent osteochondral allograft transfer surgery in August 2003 and in July 2006 due to the peristent pain. Despite his surgeries, he continued to have persistent pain, which resulted in a below-the-knee amputation on his left leg in May 2010, which she performed. The Board observes that Dr. A.G.L.'s reasoning can be interpreted as stating that the Veteran has had a continuity of symptoms since his initial left ankle injury in service that progressively worsened to the point it needed to be amputated. The Board finds Dr. A.G.L.'s opinion the most probative and credible evidence of record. Her opinion establishes that the Veteran's left ankle disability caused his need for an amputation. Therefore, the third element is satisfied. Accordingly, the Board finds service connection for loss of left leg below the knee is warranted. The Veteran sustained a left ankle injury during a period of INACDUTRA that progressively worsened to the point that amputation was necessary. There is no evidence of an intervening cause that led to the Veteran's amputation. REASONS FOR REMAND 1. Service connection for sleep apnea is remanded. As part of the Board's April 2021 remand directives, it suggested to the VA Regional Office that a VA examination may be required to address the Veteran's claim for service connection for sleep apnea based on the receipt of any additional military service records. The VA Regional Office did afford the Veteran such an examination based on his assertions that his symptoms of sleep apnea manifested during his periods of ACDUTRA and INACDUTRA. The opinion that was rendered, however, is deficient. The examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by his military service. The only rationale provided for the opinion was, lapse in treatment, unexplained long periods of time between medical care that do not support the claimed condition is directly related to service . . . Therefore, the claimed condition is less likely than not . . . To be sure, this is not a rationale because it tells the Board nothing about why the Veteran's sleep apnea did not occur during his military service periods, to include periods of ACDUTRA and INACDUTRA. The "rationale" consists only of conclusory statements of facts and ellipses, which the Board finds highly unusual. There is a lack of any discussion about the Veteran's symptoms, why a lapse in treatment is meaningful, and there is generally a disregard of the Veteran's lay statements. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that an examiner's opinion relying on the absence of contemporaneous medical evidence "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim of service connection could be proven"); Dalton v. Peake, 21 Vet. App. 23, 3940 (2007) (a medical opinion is inadequate if it does not take into account a veteran's reports of symptoms and history, even if recorded in the course of the examination). Therefore, remand is required to obtain a sufficient VA medical opinion. 2. Service connection for an acquired psychiatric disability, to include depression, to include as secondary to service-connected loss of left leg below the knee, is remanded. As the Board has now granted service connection for the Veteran's loss of left leg below the knee, remand is required to obtain a VA medical examination and opinion addressing whether the Veteran's psychiatric disability is secondary to his loss of left leg, as he asserts. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from the October 2021 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's sleep apnea. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. Within his or her rationale, the examiner should discuss whether the Veteran's cited symptoms are in fact symptoms of sleep apnea or not. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The Veteran's testimony and statements that he experienced snoring, sleeplessness, and headaches during his periods of active military service and during his active/inactive duty for training, which he asserts are symptoms of his sleep apnea that demonstrate its onset in service. (b.) The Veteran's fellow servicemembers' statements of record who stated they observed him snoring and having signs of fatigue in military service. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his sleep apnea, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a sleep apnea or associated symptoms in service or the assertion that an in-service event, injury, or illness led to his current sleep apnea. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. It is not only the continuity of treatment that is relevant, but also the continuity of symptoms regardless of treatment. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. After any additional records are associated with the claims file, obtain a VA examination from an appropriately qualified clinician to provide an opinion addressing the onset and etiology of the Veteran's acquired psychiatric disability. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding: (a.) Please identify all psychiatric disabilities that the Veteran has experienced since the pendency of the claim, since approximately 2016, and those that he currently has. (b.) For each identified psychiatric disability, whether it is at least as likely as not (50 percent probability or more) that such disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. (c.) For each identified psychiatric disability, whether it is at least as likely as not (50 percent probability or more) that such disability was caused by (proximately due to or as the result of) his service-connected loss of left leg below the knee (amputation). (d.) For each identified psychiatric disability, whether it is at least as likely as not (a 50 percent probability or more) that such disability was aggravated by his service-connected loss of left leg below the knee (amputation). The examiner is advised "aggravation" means any increase in the severity of the underlying disability beyond its natural progression. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his psychiatric symptoms, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a psychiatric disability/symptoms in service or the assertion that the Veteran's service-connected loss of left leg below the knee (amputation) led to a psychiatric disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. It is not only the continuity of treatment that is relevant, but also the continuity of symptoms regardless of treatment. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.