Citation Nr: 21008537 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-14 164 DATE: February 17, 2021 ORDER Service connection for fatigue has been withdrawn. Service connection for a left knee arthritis is granted. Service connection for eczema is granted. Service connection for a right shoulder disorder is denied. Service connection for a left shoulder disorder is denied. Service connection for a right knee disorder is denied. Service connection for a sleeping disorder, to include insomnia, is denied. REMANDED Service connection for a right ankle disorder is remanded. Service connection for a left ankle disorder is remanded. FINDINGS OF FACT 1. Per July 2019 Board testimony, prior to the promulgation of a decision in the present appeal, the Veteran asked to withdraw the issue of service connection for fatigue. 2. The Veteran is currently diagnosed with degenerative changes in the left knee (arthritis); symptoms of the left knee disorder were chronic in service and continuous since service separation. 3. Eczema was noted at service entrance; the preexisting eczema, which was noted at service entrance, underwent an increase in severity during service beyond its natural progression. 4. The Veteran is currently diagnosed with degenerative changes (arthritis) in the right shoulder (right shoulder disorder); symptoms of the right shoulder disorder were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation; and the current right shoulder disorder did not have its onset during service and is not otherwise etiologically related to service. 5. The Veteran has a current functionally impairing left shoulder disability; the current left shoulder disability did not have its onset during service and is not otherwise etiologically related to service. 6. The Veteran does not have a current right knee disability. 7. The Veteran is currently diagnosed with insomnia; symptoms of insomnia are already compensated under the 50 percent rating awarded for the service-connected unspecified anxiety disorder. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for service connection for fatigue. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a left knee arthritis have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for eczema have been met. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.306. 4. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 7. The criteria for service connection for a sleeping disorder, including insomnia, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from August 2003 to July 2010. 1. Service connection for fatigue is dismissed Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 20.204. Per the July 2019 Board hearing testimony, the Veteran asked to withdraw the issue of service connection for fatigue. As the Veteran has withdrawn the appeal regarding service connection for fatigue, there remains no allegation of errors of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review this issue, and the issue of service connection for fatigue will be dismissed. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 generally requires (1) medical 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 current disability. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1132. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306. In explaining the meaning of an increase in disability, the Court has held that “temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered ‘aggravation in service’ unless the underlying condition, as contrasted to symptoms, is worsened.” Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). The Veteran is currently diagnosed with degenerative changes (as arthritis) in the left knee and right shoulder, which are “chronic diseases” under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 C.F.R. §§ 3.307, 3.309(a). The Veteran filed a VA Form 21-526EZ in November 2014 seeking service connection for shoulder joint pain, knee joint pain, and ankle joint pain, asserting presumptive service connection for the claimed conditions as a Persian Gulf veteran who served in the Southwest Asia theater of operations during the Persian Gulf War. While the Veteran was deployed to Afghanistan during active service, Afghanistan is not included in the Southwest Asia theater of operations; thus, the Veteran is not a “Persian Gulf veteran” (i.e., had active military service in the Southwest Asian Theater of operations during the Gulf War) as defined by 38 C.F.R. § 3.317. See July 2019 Board hearing transcript. Accordingly, the presumptive service connection provisions under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 do not apply. 2. Service connection for left knee arthritis is granted The Veteran generally seeks service connection for a left knee disorder. See November 2014 VA Form 21-526EZ. The evidence shows a current diagnosis of degenerative changes (arthritis) in the left knee. See June 2014 VA treatment record. After a review of all the evidence of record, lay and medical, the Board finds that the evidence is at least in equipoise on the questions of whether symptoms of the left knee arthritis were chronic in service and have been continuous since service separation, to meet the criteria for “chronic” disease presumptive service connection for arthritis. See 38 U.S.C. § 1112 and 38 C.F.R. § 3.303(b). Although service treatment records do not reflect any complaints, symptoms, diagnosis, or treatment for a left knee disorder, the Veteran credibly testified during the July 2019 Board hearing that he suffered left knee pain and swelling during service, and as a field medical service technician, he would frequently self-treat left knee symptoms he experienced during service. A September 2019 lay statement from D.N., whom the Veteran served with as a Hospital Corpsman, is consistent with the Veteran’s July 2019 Board testimony that members working in the medical clinic frequently provided informal medical care to one another, and that D.N. had personally treated the Veteran in both clinical and non-clinical settings. Additionally, a March 2010 Report of Medical History reflects the Veteran reported that his left knee had locked up, causing the Veteran to fall, and that he was unable to mobilize the left knee for more than 30 minutes. Post-service VA treatment records reflect the Veteran sought treatment for left knee pain in April 2014 and reported that left knee pain had developed over the years while he was serving on active duty. X-rays of the left knee in April 2014 revealed degenerative changes in the patellofemoral joint and medial compartment. During the July 2019 Board hearing, the Veteran testified that he continued to experience left knee symptoms since service separation, he continued to self-treat left knee symptoms with over-the-counter medication and icing the affected areas. The foregoing evidence pertains to chronic symptoms in service and continuous symptoms of left knee arthritis since service separation. The Veteran’s statements are competent, credible, and probative. Resolving reasonable doubt in the Veteran’s favor, the Board finds that, based on evidence of chronic symptoms in service and continuous post-service symptoms of left knee arthritis, presumptive service connection for left knee arthritis is warranted under 38 C.F.R. § 3.303(b). 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As the criteria for presumptive service connection for a left knee disorder based on continuous post service symptoms (38 U.S.C. § 1112 and 38 C.F.R. § 3.303(b)) are met, all other theories of service connection are rendered moot, with no remaining questions of law or fact to be decided. 38 U.S.C. § 7104. 3. Service connection for eczema is granted The Veteran generally contends that preexisting eczema was aggravated during service. See July 2019 Board hearing transcript. The evidence shows that eczema preexisted service, as it was “noted” at service entrance. During the July 2019 Board hearing, the Veteran testified that he had eczema prior to service and that he had alerted service officials upon entering service; thus, the presumption of sound condition as it relates to eczema is not applicable. Because preexisting eczema was “noted” upon entrance to active service, service connection may be granted only if it is shown that eczema was aggravated by service, that is, if the preexisting eczema was worsened in severity beyond its natural progression during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. After consideration of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the preexisting eczema was aggravated by service. On the October 2002 service enlistment examination report, the Veteran’s skin was found to be normal. On the corresponding October 2002 Report of Medical History, the Veteran reported suffering from eczema all his life. The Veteran was referred for a dermatology consultation and a December 2002 service treatment record reflects the right and left upper extremities were found to have faint erythema and slight scaling on the dorsal aspects of both hands and a few tiny patches on the distal forearms; examination of the buttocks, right and left lower extremities, and feet revealed no abnormalities. The diagnosis was very mild eczematous dermatitis in the upper extremities that affected less than two percent of the body surface area. During the July 2019 Board hearing, the Veteran credibly testified that he only experienced eczema as a child and the rash was limited to the areas near his elbows; however, during service, the eczema was exacerbated and the rash developed all over his body with more frequency and severity than had occurred prior to service. The Veteran’s Board hearing testimony is consistent with the history recorded a March 2006 service treatment record. The March 2006 service treatment record shows the Veteran reported a life long history of eczema that was usually controllable, but since he had arrived to the duty station in California he had experienced almost continual eczema rashes on the chest, arms, and back that had not responded to over the counter cortisone ointments. For the foregoing reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the preexisting eczema underwent an increase in severity during service beyond its natural progression, that is, the preexisting eczema was aggravated by service; therefore, the criteria for service connection for eczema, based on aggravation in service, have been met. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. 4. Service connection for a right shoulder disorder is denied The Veteran asserts that a right shoulder disorder is the result of a right shoulder injury sustained during service. Specifically, the Veteran contends he was doing bench presses and dropped the barbell on his right shoulder, which has affected his range of motion since then. See July 2019 Board hearing transcript. The evidence shows a current diagnosis of degenerative changes (arthritis) in the right shoulder. See June 2014 VA treatment record. The chronic disease presumptive service connection questions for the Board are whether the chronic disease (arthritis) manifested chronic symptoms in service, continuous symptoms since service, or to 10 percent within one year of separation from active service in July 2010. After a review of all the evidence, the Board concludes that, while there is a current diagnosis of arthritis in the right shoulder, which is a chronic disease under 38 C.F.R. § 3.309(a), the weight of the lay and medical evidence shows that symptoms of arthritis were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service separation. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service treatment records do not reflect any in service injury, complaints, symptoms, diagnosis, or treatment for arthritis or any right shoulder problems. A March 2010 service separation examination found the Veteran’s upper extremities and other musculoskeletal systems to be clinically normal. While the Veteran endorsed symptoms or a history of a painful shoulder, elbow, or wrist on the corresponding March 2010 Report of Medical History, he only reported a history of wrist pain rather than shoulder symptoms. As such, the evidence weighs against finding chronic symptoms of arthritis in the right shoulder during active service. The lay and medical evidence weighs against a finding of continuous symptoms of arthritis in the right shoulder since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either “chronic” in-service or “continuous” post service symptoms. As discussed above, neither service treatment records nor the service separation examination report indicated any history or findings for arthritis in the right shoulder, and the Veteran did not report a history or current complaints of shoulder symptoms at service separation. The earliest evidence of arthritis is not indicated until April 2014, nearly four years after service separation and nearly three years outside of the applicable presumptive period, where a VA treatment record shows X-rays revealed minimal degenerative changes in the right shoulder. On the question of direct service connection, the Board finds that the weight of the evidence shows that arthritis in the right shoulder did not have its onset during active service and is not otherwise etiologically related to active service. The weight of the evidence is against finding that the right shoulder disorder is causally related to service. The weight of the evidence shows that the right shoulder disorder had its onset after active service and that arthritis in the right shoulder was not diagnosed until 2014. Further, the record does not contain a competent opinion establishing a nexus between the current right shoulder disorder and active service. For the forgoing reasons, the Board finds that the weight of the evidence is against the claim for service connection for a right shoulder disorder under all theories, and the claim must be denied. 5. Service connection for a left shoulder disorder is denied The Veteran generally seeks service connection for a left shoulder disorder. See November 2014 VA Form 21-526EZ. During the July 2019 Board hearing, the Veteran testified that he did not suffer a specific left shoulder injury during service, but instead experienced general “wear and tear” of the left shoulder during active duty. At the outset, the Board finds that the Veteran has left shoulder pain that results in functional loss of the left shoulder, that is, has a functionally impairing left shoulder disability. A May 2016 VA treatment record reflects left shoulder pain and that examination of the left shoulder revealed decreased range of motion to abduction and external rotation due to pain. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018) (holding that pain can qualify as a disability where there is evidence of functional impairment of earning capacity). After a review of all the lay and medical evidence of record, the Board finds that the current functionally impairing left shoulder disability did not have its onset during service, and is not otherwise etiologically related to active service. Service treatment records do not contain any complaints, symptoms, findings, diagnoses, or treatment for left shoulder problems. Instead, a March 2010 service separation examination found the Veteran’s upper extremities and other musculoskeletal systems to be clinically normal. As discussed above, the Veteran endorsed symptoms or a history of a painful shoulder, elbow, or wrist on the corresponding March 2010 Report of Medical History, but explained during the examination that he was only reporting a history of wrist pain. Finally, the evidence of record does not contain any competent opinion of nexus between the current left shoulder disability and an injury, disease, or event during service. Thus, the Board finds that the current left shoulder disorder is not etiologically related to active service, and the criteria for service connection for a left shoulder disorder have not been met. 6. Service connection for a right knee disorder The Veteran generally seeks service connection for a right knee disorder. See November 2014 VA Form 21-526EZ. During the July 2019 Board hearing, the Veteran testified that he did not suffer a specific right knee injury during service, but instead experienced general “wear and tear” of the right knee during active duty. The determinative question in this case is whether the Veteran now has a right knee disability. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a right knee disability. The evidence shows no current diagnosis of right knee disability or functionally impairing disability in the right knee. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018) (holding that pain can qualify as a disability where there is evidence of functional impairment of earning capacity). A June 2014 VA treatment record reflects the Veteran reported a history of chronic knee pain but denied any recent trauma. Examination of the right knee revealed normal flexion and extension, without evidence of effusion, crepitus with movement, or valgus laxity. The June 2014 VA treatment did not result in a diagnosis of a right knee disability, and VA and private treatment records do not reflect any further complaints, symptoms, diagnosis, or treatment for any right knee pain or problems. The general history of having some knee pain, in the factual context of this case that includes full and painless motion and no indications of functional limitations that are impairing, shows no current right knee disability. In the absence of a current disability, service connection for a right knee disorder must be denied. 7. Service connection for sleep disturbance is denied The Veteran generally seeks service connection for a sleeping disorder. See November 2014 VA Form 21-526EZ. After a review of all the lay and medical evidence of record, the evidence shows no current diagnosis of any sleep disorder that is not already recognized and compensated as part of the service-connected anxiety disorder. A May 2016 VA treatment record reflects a history of insomnia, which has been assessed to be a symptom of an acquired psychiatric disorder (unspecified anxiety disorder), which is already service connected and compensated. See Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). In this case, the Veteran is in receipt of a 50 percent disability rating for the service connected unspecified anxiety disorder under 38 C.F.R. § 4.130, Diagnostic Code 9413, which already compensates the Veteran for the described symptoms of “chronic sleep impairment.” An April 2015 rating decision granted service connection for unspecified anxiety disorder and assigned a 30 percent initial disability rating, specifically listing “chronic sleep impairment” as a fact found to support the 30 percent disability rating assigned to rate (compensate) for the service-connected anxiety disorder. The disability rating assigned for the service-connected unspecified anxiety disorder has since been increased to a 50 percent rating by a July 2017 rating decision. For this reason, a separate compensable rating now for the claimed symptom of chronic sleep impairment manifested as insomnia would violate the rule against pyramiding under 38 C.F.R. § 4.14 because it would be rating (compensating) the same symptom of insomnia twice – as chronic sleep impairment rated (compensated) in connection with the service-connected unspecified anxiety disorder and separately as insomnia for which the Veteran is currently appealing for service connection. Accordingly, the Board finds that the insomnia has been attributable to the service-connected unspecified anxiety disorder, for which the Veteran has already been granted service connection and has been compensated. As such, the appeal for service connection for a sleeping disorder to include insomnia, or for a separate rating for insomnia, must be denied. REASONS FOR REMAND 8. Service connection for a right ankle disorder is remanded. 9. Service connection for a left ankle disorder is remanded. The Veteran generally seeks service connection for right and left ankle disorders. November 2014 VA Form 21-526EZ. During the July 2019 Board hearing, the Veteran testified that he had rolled both ankles on several occasions during service and during service had sustained a hairline fracture in the left ankle around the end of 2009 or the beginning of 2010. A May 2004 service treatment record reflects the Veteran had complained of left ankle pain, and a March 2010 Report of Medical History shows the Veteran endorsed a history of pain in the ankles and reported that the ankles would give out at times or hurt enough to prevent him from using them. The evidence also shows that the Veteran is currently diagnosed with right and left ankle instability. See August 2019 private treatment record. The Veteran has not been provided with a VA examination of the ankles or medical opinion on the question of whether the current right and left ankle instability is related to the in-service ankle injuries or events during service. As such, remand is needed for a VA examination and nexus opinion to be provided. The matter is REMANDED for the following action: Request the appropriate VA examination to assess the claimed right and left ankle disorders. After a review of the relevant history in the case, history from the Veteran, and examination of the Veteran, the VA examiner should provide the following opinions: a) Is it at least as likely as not (i.e. 50 percent probability or greater) that the current right ankle instability had its onset during active service, or is otherwise etiologically related to active service? b) Is it at least as likely as not (i.e. 50 percent probability or greater) that the current left ankle instability had its onset during active service, or is otherwise etiologically related to service, including to the left ankle pain treated during service? A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran’s medical history and the relevant medical science as applicable to this claim. The VA examiner should not premise an opinion based only on a lack of evidence of chronicity of care. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Choi, 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.