Citation Nr: 21077253 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-21 702 DATE: December 29, 2021 ORDER Entitlement to service connection for a bilateral elbow disability is denied. Entitlement to service connection for chronic fatigue syndrome is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for a bilateral foot disability is denied. Entitlement to service connection for right knee chondrocalcinosis is granted. Entitlement to service connection for a left knee disability is denied. Entitlement to an initial 10 percent rating from January 9, 2013, through January 14, 2020, for a left ankle disability is granted. Entitlement to an initial 10 percent rating from January 9, 2013, through January 14, 2020, for a right ankle disability is granted. Entitlement to a compensable disability rating pursuant to 38 C.F.R. § 3.324 based on multiple noncompensable service-connected disabilities is denied. REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran does not have a bilateral elbow disability, chronic fatigue syndrome, hypertension, diabetes mellitus, a bilateral foot disability or a left knee disability which is related to service, including as the residuals of a cold weather injury or as a result of exposure to mustard gas. 2. The most probative evidence of record demonstrates that the Veteran's right knee chondrocalcinosis is related to his military service. 3. The record evidence shows that, prior to January 15, 2020, the Veteran's left and right ankle disability was manifested by moderate limitation of motion, including consideration of additional functional loss due to pain. 4. The record evidence shows that, effective January 15, 2020, the Veteran's left and right ankle disability has approximated marked limitation of motion. 5. The record evidence shows that the Veteran is in receipt of at least a compensable rating since the effective date of his disability compensation award for an ankle disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral elbow disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; § 3.303. 2. The criteria for service connection for chronic fatigue syndrome are not met. 38 U.S.C. §§ 1110, 1131, 5107; § 3.303. 3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; § 3.303. 4. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; § 3.303. 5. The criteria for service connection for a bilateral foot disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; § 3.303. 6. The criteria for service connection for right knee chondrocalcinosis have been met. 38 U.S.C. §§ 1110, 1131, 5107; § 3.303. 7. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; § 3.303. 8. The criteria for an initial 10 percent rating from January 9, 2013 through January 14, 2020 for a left ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes (DCs) 5271, 5284. 9. The criteria for an initial 10 percent rating from January 9, 2013 through January 14, 2020 for a right ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, DCs 5271, 5284. 10. There is no legal entitlement to a 10 percent rating for multiple noncompensable service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1975 to June 1976. This case was before the Board previously in February 2019 when it was remanded to the RO for additional development. The Board also finds that there has been compliance with the prior remand directives with respect to the claims adjudicated below. See Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of this appeal, the rating criteria for evaluating musculoskeletal disorders under 38 C.F.R.§4.71a were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. As there is no left or right ankle evidence dated subsequent to February 7, 2021 of record, the Board will be applying the prior versions of the applicable regulations. Entitlement to service connection for a bilateral elbow disability, chronic fatigue syndrome, hypertension, diabetes mellitus, and for a bilateral foot disability The Veteran asserts that he has a bilateral elbow disability, chronic fatigue syndrome, hypertension, diabetes mellitus, and a bilateral foot disability as a result of a cold injury during service while performing field duties at Grafenwöhr, Germany in November 1975. He stated that he had to sleep in his truck for two weeks without heat and adequate coverage which resulted in exposure to severe cold weather. He has also made vague refences to exposure to Mustard Gas but has provided no specifics in that regard. A January 1976 service treatment record indicated that the Veteran had a history of frostbite of the right ear. The Veteran's service treatment records do not note any elbow disability, chronic fatigue syndrome, high blood pressure, or diabetes mellitus. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Following service separation, although the Veteran complained of problems with his boots, no disability of the feet was noted, and the May 2014 VA examiner specifically stated that the Veteran had no cold weather-related injury of the feet. The Veteran did not indicate that he had any of these disorders at the time of his separation from service. There is no medical opinion or medical records attributing any of the claimed disorders to service or any event of service, to include exposure to cold or to Mustard Gas. The Veteran has no expertise or training to determine the cause of his claimed disabilities, and he is not competent to provide evidence as to a complex medical question such as the etiology of diabetes, hypertension, or orthopedic disorders. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). To the extent the Veteran is making any assertions of continuity of symptomatology since service, the Board finds that such statements are not consistent. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the Veteran). In this regard, the Board again observes that the Veteran denied that he had any of the claimed disorders prior to his separation from service. He otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for a bilateral elbow disability, chronic fatigue syndrome, hypertension, diabetes mellitus, and for a bilateral foot disability. In summary, the Board finds that service connection for a bilateral elbow disability, chronic fatigue syndrome, hypertension, diabetes mellitus, and for a bilateral foot disability, including as residuals of cold weather injuries, is not warranted. Entitlement to service connection for a right knee disability and for a left knee disability The Board finds that the evidence of record supports granting service connection for a right knee disability. First, there is current disability (right knee chondrocalcinosis) as noted at the February 2014 VA examination. Second, the Board finds that there was an in-service complaint of right knee problems in August 1975. Examination at that time revealed tenderness over the patella. Third, the Board finds that the evidence of record supports a finding that the Veteran's right knee disability has existed since active service. He provided competent and credible testimony at a DRO hearing of right knee problems since service. See Washington, 19 Vet. App. at 368; Caluza v. Brown, 7 Vet. App. 498, 511 (1995). He is competent to state that he has had right knee problems since service, and his contentions in this regard are credible. Id. The Board observes that the January 2020 VA examiner did not (arguably) specifically dissociate the Veteran's right knee disability from service. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for a right knee disability is warranted. In contrast, the Board finds that the evidence of record does not support granting service connection for left knee disability. Although there is current left knee disability as noted at the February 2014 VA examination, the Board can find no indication of any pertinent left knee complaint other than some tenderness of the "mid shaft" of the left tibia. Third, the Board can find no opinion linking left knee disability to the Veteran's active service, and the January 2020 VA examiner specifically indicated that no such relationship existed. He is not competent to provide evidence as to a complex medical question such as the etiology of his left knee chondrocalcinosis. As for any assertion of continuity of left knee symptomatology since service, the Board observes that he denied that he had any left knee disorder prior to his separation from service. He otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for a left knee disability. In summary, the Board finds that service connection for a left knee disability is not warranted. Increased Ratings Entitlement to an initial compensable ratings prior to January 15, 2020, and greater than 20 percent thereafter for bilateral ankle disabilities A May 2014 rating decision granted service connection for left and right ankle disability and assigned a noncompensable disability rating, effective January 9, 2013, under Diagnostic Code (DC) 5271. An August 2020 rating decision increased the rating for the Veteran's left and right ankle disability to 20 percent, effective January 15, 2020. Prior to January 15, 2020 The findings for the period on appeal include a February 2014 VA examination that revealed left and right ankle plantar flexion to 45 degrees or greater and left and right ankle dorsiflexion to 15 degrees; pain did not further limit dorsiflexion or plantar flexion. There was no diagnosis of left or right ankle arthritis. A February 2017 VA examination revealed left and right ankle plantar flexion to 45 degrees and left and right ankle dorsiflexion to 20 degrees. The February 2014 VA examiner noted that the Veteran's left and right ankles had additional limitation of functional ability due to pain, weakness, and fatiguability. In the same manner, the February 2017 VA examiner noted that the Veteran's left and right ankles had additional limitation of functional ability that resulted in impairment in walking, participating in sports, and ascending stairs. The Board finds that, when considering the Veteran's long-standing complaints of functional impairment in light of the provisions of DeLuca, an initial evaluation of 10 percent for left and right ankle disability for this time period under DC 5271 is warranted. An evaluation in excess of 10 percent for left and right ankle disability for this time period under DC 5271 is not warranted, however. The range of motion and related findings do not show left or right ankle dorsiflexion nor plantar flexion limited to less than half the normal range of motion for each movement. And neither the left or right ankle disability was productive of marked limitation of motion. Further, the Veteran has been able to perform left and right ankle repetitive-use testing with no additional loss of function or range of motion, and left and right ankle strength testing at the VA examinations was noted as being 5/5. The Board next finds that the evidence of record does not support an increased evaluation under DC 5284 prior to January 15, 2020. The VA examinations during this time period do not reflect moderately severe left or right ankle symptoms, and there has been no indication of shin splints, stress fractures, or Achilles tendon rupture. As noted, strength testing of the ankle has been 5/5 with essentially normal range of motion. Accordingly, the preponderance of the evidence weighs against a finding that the left or right ankle disability more nearly approximated a 20 percent evaluation under DC 5284. 38 C.F.R. §§ 4.6, 4.7. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for initial 10 percent ratings from January 9, 2013, through January 14, 2020, for a left ankle disability and for a right ankle disability have been met. From January 15, 2020 The findings for this period include a January 15, 2020 VA examination that revealed left and right ankle plantar flexion to 20 degrees and left and right ankle dorsiflexion to 10 degrees. A rating in excess of 20 percent is not available under DC 5271. Although a higher rating of 30 percent is available under DC 5284 for severe symptoms of the foot, the January 15, 2020 VA examiner noted that left and right ankle strength testing was 5/5, and there were no findings of muscle atrophy. Although the Veteran reported the regular use of a cane for ankle support when walking, the January 2020 VA examiner specifically noted the lack of any left or right ankle instability. Further, there was no indication of shin splints, stress fractures, or Achilles tendon rupture. Accordingly, the Board concludes the preponderance of the evidence weighs against assignment of a higher 30 percent evaluation under DC 5284. Entitlement to a compensable disability rating pursuant to 38 C.F.R. § 3.324 based on multiple noncompensable service-connected disabilities. The provisions of 38 C.F.R. § 3.324 pertain to the existence solely of noncompensable service-connected disabilities. As such, once a compensable rating for any service-connected disability has been awarded, the applicability of 38 C.F.R. § 3.324 is rendered moot. See Butts v. Brown, 5 Vet. App. 532 (1993). In this regard, the Veteran (by virtue of the actions taken in this decision) has been in receipt of a 10 percent disability rating since July 31, 2014. Therefore, the Veteran's claim for compensation under 38 C.F.R. § 3.324 from July 31, 2014, is rendered moot. Accordingly, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, peripheral neuropathy of the bilateral lower extremities, GERD, and for a sleep disorder is remanded. The Board finds that the medical evidence of record is not sufficient to adjudicate the peripheral neuropathy claims. Although a VA opinion was obtained in May 2014, this opinion is inconclusive and appears to be different than what was listed in the diagnosis section of the May 2014 opinion report. Thus, the Board finds that the May 2014 opinion is inadequate for VA adjudication purposes and, on remand, another VA examination with a medical opinion should be obtained which addresses this matter. In the same manner, a January 2020 VA examiner appeared to indicate that the Veteran had GERD in service (by virtue of a date of diagnosis listed as during service) but then opined that the Veteran's current GERD was not related to service. Thus, the Board finds that the January 2020 VA opinion is inadequate for VA adjudication purposes and, on remand, another VA examination and opinion should be obtained which addresses this matter. The Veteran asserts that his sleep disorder is related to his GERD and as such the Board will defer consideration of that issue pending the requested development below. Entitlement to a TDIU is remanded. Because adjudication of claims being remanded in this decision will impact adjudication of the TDIU claim, the Board finds that all of these claims are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, adjudication of a TDIU claim is deferred. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Thereafter, provide the Veteran with an appropriate examination to determine the nature and etiology of his peripheral neuropathy of the bilateral upper and lower extremities. The claims file and a copy of this REMAND should be provided for review. Based on a review of the claims file and the results of the Veteran's examination, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that peripheral neuropathy of the bilateral upper extremities and/or peripheral neuropathy of the bilateral lower extremities is related to active service or any incident of service, including as due to in-service cold weather exposure. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each of the Veteran's upper and lower extremities, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for peripheral neuropathy of the bilateral upper extremities and/or for peripheral neuropathy of the bilateral lower extremities, alone, is insufficient rationale for a medical nexus opinion. The clinician also is advised not to review or rely upon a May 2014 opinion in preparing his or her own opinion(s). 3. Provide the Veteran with an appropriate examination to determine the nature and etiology of his GERD. The claims file and a copy of this REMAND should be provided for review. Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that GERD is related to active service. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. If the clinician opines that the Veteran's GERD is related to his active service, then he or she is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected GERD caused or aggravated his sleep disorder. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for GERD and/or for a sleep disorder, alone, is insufficient rationale for a medical nexus opinion. The clinician also is advised not to review or rely upon a January 2020 opinion in preparing his or her own opinion(s). 4. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Nelson 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.