Citation Nr: 21012954 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 10-32 340 DATE: March 8, 2021 ORDER Entitlement to service connection for a left ankle disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), major depressive disorder, and anxiety is remanded. FINDING OF FACT The Veteran does not have a current left ankle disability. CONCLUSION OF LAW The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1993 to July 1999. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. In June 2019, the Board remanded the case to the RO for additional development. The appeal of the Veteran originally included claims for service connection for cervical spine disability, right ankle disability, skin disorder, and headaches. In a September 2020 rating decision, the RO granted service connection for these disabilities. As the benefits sought have been granted, these issues are no longer on appeal. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran testified that she initially injured both ankles during basic training and her ankles have worsened since that time. Service treatment records confirm treatment of the ankles but not at the same time. She first sought treatment for the right ankle in February 1993. She is now service connected for the right ankle. The Veteran sought treatment for the left ankle sometime between December 1994 and March 1995 after she slipped while walking down stairs. The treatment record does not contain an exact date but indicates it was between December 1994 and March 1995 which corresponds to her deployment to Riyadh Air Force Base in Saudi Arabia. Thereafter, there were no complaints, treatment, or diagnosis for a left ankle disability, including physical assessments in April and May 1996. The left ankle was normal at the May 1999 separation examination. Treatment records since separation do not show any complaints, diagnosis, or treatment for a left ankle disability. In January 2020, a VA examiner examined and interviewed the Veteran. He also reviewed the pertinent medical history. The examination demonstrated normal range of motion and no other abnormalities of the left ankle. The examiner specifically noted there was no objective evidence of a left ankle disability upon examination. The examiner concluded that the Veteran had no residuals or current findings related to the left ankle. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination and interview of the Veteran. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). The evidence is against a finding of a left ankle disability at any point during the claims period or shortly prior to the claim being filed. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). While pain can constitute a disability if it results in functional impairment, functional impairment is not present in this case as demonstrated by the VA examination findings. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018); Martinez-Bodon v. Wilkie, No. 18-3721 (Fed. Cir. 2020). As there is no competent evidence of a current left ankle disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board recognizes that service connection can be awarded for an undiagnosed illness or medically unexplained chronic multisymptom illness for Persian Gulf War veterans. 38 C.F.R. § 3.317. However, this requires objective indications of a chronic disability. 38 C.F.R. § 3.317(a). The most probative evidence in this case, the January 2020 VA examination, specifically found that after examination and interview of the Veteran there was no objective evidence of a left ankle disability. As such, service connection cannot be awarded under § 3.317. To the extent the Veteran is asserting she has a current left ankle disability that resulted from service, the Veteran is not shown to have medical education or experience. She is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or provide an opinion as to the specific etiology of a condition as these are medically complex issues. Thus, her lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. Accordingly, the preponderance of the evidence is against the claim for service connection for a left ankle disability and that claim is denied. REASONS FOR REMAND The Veteran filed a service connection claim for PTSD. The Veteran has been diagnosed not only with PTSD, but also major depressive disorder, and adjustment disorder. She has reported several stressors such as witnessing public beheadings in Saudi Arabia and being interrogated by local religious officials who, on at least one occasion, confiscated written material from her. Post-service, she has also reported several instances where she was sexually assaulted during service by superiors and her ex-husband while both were stationed in Germany. The Veteran underwent a VA examination in July 2020 which resulted in the examiner concluding the Veteran had major depressive disorder mixed with anxiety and distress. Unfortunately, the VA examiner’s report does not enable the Board to make a fully informed decision. The examiner found that “[t]he preponderance of medical evidence is not sufficient to presume the Veteran’s current depression is at least as likely as not a result of an in-service stressor related event.” It is unclear to the Board if the examiner was using a preponderance of the evidence standard or an at least as likely as not standard when answering the question. The examiner also did not explain the significance of the lack of documentation of a mental health disorder or treatment for several years after service, one of the reasons cited for the negative opinion. Accordingly, the Board has determined remand is required for another VA examination. The matter is REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to her psychiatric claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current acquired psychiatric disorder had its onset during service or is otherwise related to an in-service injury, event, or disease. If PTSD or another trauma- or stressor-related disorder is diagnosed, the examiner is asked to list all traumatic events contributing to that diagnosis. The record is conflicting on whether the Veteran has PTSD. If PTSD is not diagnosed, the examiner should address whether this is because past diagnoses of PTSD were in error or because the Veteran’s PTSD resolved. See, for example, PTSD diagnoses made by private doctors A.G. in October 2007 and E.H. in October 2012, as well as by a VA psychiatrist on June 26, 2015. If the absence of treatment is given as a reason for a negative opinion, the significance of this fact should be discussed. For example, would it be expected that someone with symptoms would seek treatment? A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 3. If the VA examiner diagnoses PTSD or does not explicitly explain why prior PTSD diagnoses are in error, appropriate development should be taken to verify all stressors identified by the clinicians who have diagnosed the Veteran with PTSD. (Continued on the next page.) It is noted that a disability does not need to be present for the entire appeal period to be considered a disability for purposes of service connection. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell P. Veldenz, 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.