Citation Nr: 21011230 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-05 148 DATE: March 1, 2021 ORDER Service connection for left knee disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. Service connection for right knee disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. Service connection for left ankle disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. Service connection for right ankle disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. Service connection for low back disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. Service connection for lung disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. REMANDED Service connection for joint pain, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 is remanded. FINDINGS OF FACT 1. Symptoms related to the Veteran’s left knee, right knee, left ankle, right ankle, low back, and lung are attributable to diagnosed conditions. 2. No left knee, right knee, left ankle, right ankle, low back, or lung disability manifested during active service or is otherwise related to the Veteran’s period of service. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.317 (2020). 2. The criteria for service connection for right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.317 (2020). 3. The criteria for service connection for left ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.317 (2020). 4. The criteria for service connection for right ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.317 (2020). 5. The criteria for service connection for low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.317 (2020). 6. The criteria for service connection for lung disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.317 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1987 to June 1991. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in October 2019. The Veteran appeared before the undersigned Veterans Law Judge in February 2019 and delivered sworn testimony via video conference hearing. Duties to Notify and Assist Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran offered testimony before the undersigned at a Board hearing in February 2019. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2020); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the October 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Laws and regulations 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, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service- the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2020). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although 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 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2020); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection is granted for Persian Gulf Veterans with a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multisymptom illness that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (a)(1)(i) (2020). 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; or (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 diseases). 38 U.S.C. §§ 1117, 1118 (2012); 38 C.F.R. § 3.317 (a)(2)(i). An undiagnosed illness is a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). Objective indications of chronic disability include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). A medically unexplained chronic multisymptom illnesses is defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that VA determines meets the criteria in paragraph 3.317(a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A medically unexplained chronic multisymptom 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. 38 C.F.R. § 3.317(a)(2)(ii). With claims for service connection under 38 C.F.R. § 3.317, the Veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). The symptom, which is capable of lay observation, is presumed to be related to service, and unlike a claim of direct service connection, VA cannot impose a medical nexus requirement. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Further, lay persons are competent to report objective signs of illness such as joint pain or fatigue. Gutierrez, 19 Vet. App. at 9-10. Undiagnosed pain may be the basis of an award of compensation under 38 U.S.C. § 1117. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98 (August 3, 1998). Nevertheless, consideration must be given to service connection on a direct basis for that diagnosis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Analysis At the February 2019 Board hearing the Veteran indicated that he had first noticed symptoms related to his ankles, knees, and back during boot camp. The Veteran did not go to sick call or seek treatment for these symptoms as it was “frowned upon” and the soldier would be considered weak. He had tried to seek VA treatment for the disorders after service but was “denied” being seen by anyone. The Veteran stated that he was exposed to many harmful substances during service, including burn pits. He did not have shortness of breath during service but started noticing it “more or less when I got out.” As is noted below, the Veteran’s symptoms and problems related to the issues being decided in this decision have all been attributed to known diagnoses, and the presumptive provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 pertaining to undiagnosed illness and multisymptom illnesses are not for application. Ankles, knees, and low back First, the Board finds that there are current disabilities. The September 2020 VA examiner noted diagnoses of left and right ankle lateral collateral ligament sprain, left and right knee strain, and degenerative arthritis of the low back. Second, the Board finds that there was not an in-service injury or disease. The Veteran has provided testimony that he had ankle, knee, and low back problems during and after service, and that he did not report them during service due to his active duty leadership position. The Veteran’s June 1991 service discharge examination, there were normal clinical evaluations of the spine, feet, and lower extremities. In a September 1992 Report of Medical History, more than a year after active duty discharge, the Veteran denied recurrent back pain and trick or locked knee. Although the testimony is competent as it is capable of lay observation, the Board does not find it credible as it conflicts with the other evidence of record and based on hearing demeanor. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Although the Veteran has combat service, his statements regarding continuous symptoms are belied by the evidence of record. Third, the Board finds that the evidence of record does not support a finding that the ankle, knee, and low back disorders are related to service. First, the Veteran has provided testimony that he has had symptoms since service discharge, but as indicated above, the Board finds this testimony competent but not credible. Second, a September 2020 VA examiner opined that these disorders were not related to the Veteran’s active service, noting the lack of in-service complaints, lack of treatment thereafter, the inconsistent medical evidence of record, and the likelihood that the disorders are due to age or repetitive use due ot his occupation as a mail carrier. The Board finds the September 2020 opinions are of great probative value. The opinions contained a comprehensive review of the Veteran’s service and post-service medical records and lay statements and offered a well-reasoned explanation for the opinions provided. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting the central issue in determining probative value is whether the examiner was informed of the relevant facts in rendering a medical opinion). Thus, the evidence does not support a finding of service connection for the ankle, knee, or low back disabilities on a direct basis. The Veteran’s assertion that his ankles, knees, and back disorders are related to service has been considered. The Board, however, finds that this opinion is not competent. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of orthopedic disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation and thus lay testimony may serve to establish a diagnosis); Layno v. Brown, 6 Vet. App. 465 (1994) (layperson is competent to report only that which the person observed). Accordingly, to the extent these lay statements addressed the nexus element, the Board finds that they are not competent and are also outweighed by the VA examiner’s September 2020 opinion. Service connection of the ankles, knees, and low back is not warranted. Lung disorder First, the Board finds that there is a current disability. The September 2020 VA examiner noted a diagnosis of bronchitis. Second, the Board finds that there was an in-service injury or disease. The Veteran has provided testimony that he had exposure to burning oil and “black rain” during his service in the Persian Gulf. ankle, knee, and low back problems during service. Third, however, the Board finds that the evidence of record does not support a finding that the Veteran’s bronchitis or any other respiratory disorder is related to service. No examiner has linked a lung disability to service, and the September 2020 VA examiner opined that the disorder was not related to the Veteran’s active service. The Board finds that the opinion from the September 2020 VA examiner is of significant probative value. The opinion contained a comprehensive review of the Veteran’s service and post-service medical records and lay statements and offered a well-reasoned explanation for the opinions provided. See Prejean, 13 Vet. App. at 448-9; Nieves-Rodriguez, 22 Vet. App. at 302-04. In this regard, the September 2020 VA examiner recounted the Veteran’s exposure history and noted that the Veteran had not had shortness of breath until years following service. The Board notes that such findings comport to the Veteran’s denial of shortness of breath and a chronic cough on his September 1992 Reserves examination. Thus, the evidence does not support a finding of service connection for lung disability on a direct basis. The Veteran’s assertion that his lung disorder is related to service has been considered. The Board, however, finds that this opinion is not competent. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of respiratory disorders. Jandreau, 492 F.3d at 1377 n.4; Barr, 21 Vet. App. at 310; Layno, 6 Vet. App. 465. Accordingly, to the extent these lay statements addressed the nexus element, the Board finds that they are not competent and are also outweighed by the VA examiner’s September 2020 opinion. The Veteran is competent to report that he was exposed to toxic chemicals and had symptoms related to his lung disorder since service. As noted, the Board observes that in a September 1992 Reserves examination (or more than a year following service), the Veteran specifically denied that he had any shortness of breath or a chronic cough. Thus, any such testimony is competent but not credible. See Caluza, 7 Vet. App. at 511. Although the Veteran has combat service, his statements regarding continuous symptoms are belied by the evidence of record. In view of the evidence to the contrary, the Board does not find that the Veteran’s lay statements are sufficient to establish continuity of symptomatology for any lung disorder, and service connection for a lung disorder is not warranted. As the preponderance of evidence is unfavorable to the claims, service connection is not warranted, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND As for the issue of entitlement to service connection for joint pain, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, the Board finds that the evidence of record is insufficient to decide this claim. In particular, it is unclear to the Board if the Veteran has a current diagnosis of fibromyalgia or another systemic joint disability. In this regard, although the Veteran’s VA medical history notes fibromyalgia, the September 2020 VA examiner appeared to state that the Veteran did not have fibromyalgia. Based on the foregoing, another examination with medical opinion is required. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after December 10, 2020. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the appellant which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with the appropriate examination to determine the etiology of his claimed joint pain. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner should state whether the Veteran has a disability manifested by systemic joint pain that is related to his military service, to include his service in the Persian Gulf. The examiner must address the Veteran’s lay statements that his claimed disabilities and/or symptoms began in service. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2020). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN 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.