Citation Nr: 21007008 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-00 185 DATE: February 8, 2021 ORDER Entitlement to service connection for a left ankle disability, characterized as a left ankle sprain and degenerative joint disease of this joint, is granted. Entitlement to service connection for a respiratory disorder, to include asthma, is denied. REMANDED Entitlement to service connection for a chronic headache disability, to include as secondary to the service-connected bipolar disorder and posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his left ankle disability was incurred during his active service. 2. The preponderance of the evidence is against the establishment of a clinical diagnosis of a respiratory disorder, to include asthma, at any time during, or concurrent with, the current appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ankle disability, characterized as a left ankle sprain and degenerative joint disease of the left ankle, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for entitlement to service connection for a respiratory disorder, to include asthma, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from October 1970 to December 1990. In June 2018, the Board remanded the claims for further evidentiary development. The Veteran requested a hearing before the Board. His requested hearing was conducted in December 2020 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the file. Service Connection A veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. §3.102. Left ankle disability The Veteran contends that he developed a left ankle disability as a result of his active service. The evidence of the record establishes that he has been diagnosed with residuals of a left ankle sprain (see December 2019 VA examination report) and degenerative joint disease of the left ankle (see June 2014 private medical treatment record). Regarding an in-service injury or event, the Veteran asserts that he injured his left ankle twice during service. An undated service treatment record documents his complaints of pain in this joint. Also, in February 1988, he was treated for pain and swelling in his left ankle. A left ankle sprain was diagnosed. Treatment of his left sprained ankle included wrapping and elevation of this joint as well as Motrin. According to post-service medical records, a November 2013 VA examiner provided a negative nexus opinion (between a current left ankle disability and the Veteran’s service) on the basis that that current examination demonstrated no left ankle disability. Also, a December 2019 VA examiner opined that it was less likely than not that the Veteran’s current left ankle sprain residuals were due to his in service injury. While acknowledging the Veteran’s 1988 ankle sprain, this examiner explained that this type of injury is expected to heal fully within a few weeks. The examiner referenced the Veteran’s August 1990 military retirement examination, which did not include any left ankle complaints from the Veteran and which did demonstrate a normal evaluation of his lower extremities. Unfortunately, this examiner did not consider or address a November 2013 medical treatment record regarding the Veteran’s left ankle complaints and the diagnosis of degenerative joint disease. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue"). In this matter, the Veteran is competent to report experiencing symptoms of pain and swelling in his left ankle and to note that he relies on self-treatment, such as elevating his feet and taking medication, for his left ankle problems. In this regard, the Board notes that the Veteran has stated that the last time that he received medical care for his left ankle problems was approximately 9 or 10 years ago. (Indeed, at the time of the last treatment session, the Veteran described experiencing intermittent aching and swelling, particularly when he puts pressure on this joint. He denies any post-service injury to his left ankle. See December 2019 VA Examination Report.) The Board notes that, in the November 2013 treatment record regarding his left ankle, no specific injury to his left ankle was reported. The Veteran reports currently experiencing symptoms similar to those documented during his service. Additionally, the Veteran’s report of self-treatment, which includes elevating his feet and taking medication, is similar to the treatment received during his active service. After a thorough consideration of the evidence of the record, the Board finds the Veteran's statements and testimony as to onset and continuity of symptomatology regarding his left ankle condition to be credible. His statements have been consistent with each other, his service records, and post-service treatment records. Although these symptoms from service cannot with medical certainty be attributed to his current left ankle condition, when thoroughly considering his accounts of symptoms during and after service, the fact that he has had the same diagnosis of a left ankle sprain during and post-service, and the fact that there is no indication of an intercurrent injury, the evidence raises a reasonable doubt as to the initial onset of the Veteran's left ankle condition. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, in resolving all reasonable doubt in favor of the Veteran, the Board finds that his left ankle condition is related to his service. The criteria for service connection for left ankle disability, defined as residuals of a strain and degenerative joint disease of this joint, have been met. A respiratory disorder, to include asthma The Veteran also contends that he developed asthma as a result of his service. Significantly, however, the December 2019 VA examiner determined that the Veteran did not have a clinical diagnosis of asthma or any other respiratory conditions. Pulmonary function testing (PFT) was performed and showed no obstruction in the airways or significant bronchodilator response in the large or small airways. Indeed, lung volumes were normal with no evidence of restriction, air trapping, or hyperinflation. See December 2019 VA Examination Report. There is no other evidence of the record that shows any objective or clinical findings of asthma or any other respiratory conditions. Accordingly, based on this evidence of the record, the Board finds that there is no current respiratory disability during, or concurrent with, the current appeal. Service connection requires a showing of a current disability. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this regard, the Board acknowledges that a November 2013 record indicates that the Veteran had a history of asthma. (At that time, the Veteran reported a history of asthma during his service. See December 2006 Service Treatment Records (STR) – Dental.) Significantly, however, the only evidence regarding a diagnosis of asthma originates from the Veteran’s reports. While the Veteran is competent to report experiencing symptoms, such as trouble breathing, he has not demonstrated the medical expertise required to clinically diagnose himself with asthma or a respiratory condition. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). As explained previously, the August 1990 retirement examination demonstrated that the Veteran’s lungs were normal. Indeed, the December 2019 VA examiner explained that the Veteran’s August 1990 spirometry yielded normal results. Importantly, current diagnostic testing yielded a finding of normal functioning of the lungs. Accordingly, the Board finds that the weight of the evidence is against a finding of service connection for asthma or any other respiratory conditions. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. REASONS FOR REMAND Service connection for a chronic headache disability, to include as secondary to the service-connected bipolar disorder and PTSD After a thorough review of the Veteran's claims file, the Board finds that additional evidentiary development is necessary prior to the adjudication of the claim for service connection for headaches. Specifically, the Veteran contends that he has developed headaches related to his service. At the December 2019 VA examination, the Veteran reported that he believed that stress brought on his headaches. The examiner noted the VAMC Psychiatric Notes that indicated chronic headaches. The Veteran is service connected for an acquired psychiatric disorder, defined as a bipolar disorder and PTSD. Psychiatric treatment records document the Veteran’s complaints of stress in connection with his psychiatric disorder. Additionally, in a June 2014 pharmacy medication management note, the Veteran reported experiencing headache pain and taking divalproex daily for his mood. It was noted that it was uncertain if that medication caused the Veteran’s headaches. As the evidence raises the theory of secondary service connection, the Board finds that a remand is necessary in order to obtain an opinion that addresses whether the Veteran has headaches that are caused or aggravated by his psychiatric disorder. Schroder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). Accordingly, this matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent private treatment records for his headache condition. The Agency of Original Jurisdiction (AOJ) should secure any necessary authorizations to procure any such identified records. If any such identified records cannot be obtained, inform the Veteran of such (as well as the efforts that had been made to obtain them). The Veteran should be notified that he may submit any such records. All efforts to procure identified records should be recorded in the claims folder. 2. Obtain updated VA treatment records. All such available reports should be associated with the Veteran’s claims folder. If any requested records cannot be obtained, the Veteran should be notified of such. 3. Then, refer the Veteran's claims file to a medical professional with appropriate expertise to provide an addendum opinion addressing the nature and etiology of the Veteran’s headaches. If a current VA examination is deemed necessary, one should be scheduled. The claims file and a copy of this REMAND should be made available to the examiner for review. After record review and/or examination, the VA examiner should as clearly and precisely as possible: (a) provide a diagnosis(es) of a chronic headache disability found to be present during the pendency of this appeal. If there are different diagnoses than those currently of record, the examiner should attempt to reconcile the diagnoses with the evidence of record. (b) for any such diagnosed headache disability, is it at least as likely as not (a 50 percent or greater probability) that such disability is caused by the service-connected bipolar disorder and PTSD, including medication taken therefore? (Specifically, the examiner must consider and address whether the medication used to treat the Veteran’s mood—divalproex—in any way causes his headaches? (c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s headaches are aggravated (i.e., worsened beyond the natural progress) by his service-connected psychiatric disorder, including medication taken therefore (divalproex). If the examiner determines that the Veteran’s headaches are aggravated by his psychiatric disorder, the examiner should report the baseline level of severity of the condition prior to the onset of aggravation. If some of the increase in severity of headaches is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. [In this regard, the Board notes that causation and aggravation are independent concepts. Therefore, the examiner must provide separate findings and rationales for causation and aggravation.] In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Then, review the record, conduct any additional development deemed necessary, and readjudicate the claim remaining on appeal. If this benefit remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.