Citation Nr: 21013866 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-28 619 DATE: March 10, 2021 ORDER Entitlement to service connection for left ankle sprain is granted. Entitlement to service connection for right ankle sprain is granted. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as anxiety disorder, is granted. Entitlement to service connection for a respiratory disability, diagnosed as allergic rhinitis, is granted. REMANDED Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee disability is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded. Entitlement to an initial rating of 30 percent for bilateral plantar fasciitis is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for a thoracolumbar spine disability is remanded. FINDINGS OF FACT 1. The Veteran’s left ankle sprain had its onset in service. 2. The Veteran’s right ankle sprain had its onset in service. 3. An acquired psychiatric disorder, diagnosed as anxiety disorder, had its onset in service. 4. The Veteran’s allergic rhinitis had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ankle sprain have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right ankle sprain have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for an acquired psychiatric disorder, diagnosed as anxiety disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.304. 4. The criteria for service connection for allergic rhinitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1991 to November 2011, including service in Iraq from May 2003 to March 2004, from October 2005 to November 2006 and from June 2008 to June 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a December 2020 virtual hearing. The Board notes that the Veteran also perfected an appeal from the September 2013 rating decision seeking service connection for a cervical spine disability. During the pendency of the appeal, a July 2019 rating decision granted service connection for a cervical spine disability, rated 10 percent disabling, effective from August 2, 2012. Hence, the matter is no longer on appeal and will not be addressed herein. Service Connection 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a right ankle disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In this case, the Veteran contends that his left and right ankle disabilities are due to trauma doing air assaults during service and that they have snapped and popped since service. See December 2020 hearing. The Veteran’s service treatment records are silent for complaints or treatment for the left or right ankle. However, the Veteran’s DD Form 214 shows that his decorations and awards include the air assault badge, and that his military education includes air assault training. Post-service treatment records show a diagnosis of bilateral ankle sprain. See August 2012 VA ankle conditions examination. Thus, the Veteran has satisfied the first element of service connection. The Veteran has testified experiencing recurrent left and right ankle pain and popping that had its onset during active service. See August 2012 VA ankle conditions examination; see also December 2020 virtual hearing. The Veteran is competent to report recurrent left and right ankle pain and popping, and the Board does not question the credibility of the Veteran’s reports of recurrent left and right ankle pain and popping. Hence, in light of the competent and credible lay evidence, the Board finds that the Veteran’s diagnosed left and right ankle disabilities became manifested while he was on active duty. As such, the Board concludes that the evidence shows that the disabilities became manifest while the Veteran was on active duty and thus were incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Thus, all three elements necessary to establish service connection have been met. 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. After a review of the evidence of record, the Board finds that service connection is warranted for an acquired psychiatric disorder. In this case, the Veteran contends that his psychiatric disorder is due to active duty service in Iraq. The Veteran’s DD Form 214 shows that he was stationed in Iraq from May 2003 to March 2004, October 2005 to November 2006 and June 2008 to June 2009. The Veteran’s service treatment records include an October 2010 report noting the Veteran’s history of present illness included anxiety. The Veteran has submitted correspondence that he was diagnosed with anxiety during service, and that he presently suffers from anxiety attacks and mood disorder. See November 2017 Veteran statement. He has further testified that his psychiatric symptoms have been a recurrent problem since service. See December 2020 virtual hearing. The Board observes that the evidence of record indicates that the Veteran has a psychiatric disorder, diagnosed as anxiety disorder. See July 2012 VA examination. The Veteran is competent to report symptoms of his psychiatric disorder, diagnosed as anxiety disorder, during service and since that time. The Board finds that the Veteran’s report of such symptoms since his period of service are credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). Resolving any doubt in the Veteran’s favor, in light of the competent and credible evidence, the Board finds that the Veteran’s diagnosed anxiety disorder became manifest while he was on active duty. Accordingly, service connection for an acquired psychiatric disorder, diagnosed as anxiety disorder, is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Clemons v. Shinseki, 23 Vet. App. 1 (2009). Finally, inasmuch as the Veteran testified at the December 2020 hearing that the award of any psychiatric disorder would satisfy his appeal, and this decision does so, there is no need for the Board to consider or address other potential psychiatric disorders. 4. Entitlement to service connection for a respiratory disability (claimed as allergic rhinitis and sinusitis). Every veteran is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. The United States Court of Appeals for the Federal Circuit has distinguished between those cases in which the preexisting condition is noted upon entry into service, and cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Wagner, 370 F.3d at 1345; Horn, 25 Vet. App. at 234; 38 U.S.C. § 1112. “[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.” Wagner, 370 F.3d at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To be “noted” within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute notation of such condition. Id. at 240 (holding that “asthma” was not noted where, although the Veteran checked a box indicating that he had a history of the disease, a clinical evaluation detected no abnormalities of the lungs). However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (holding that “bunions" were noted at induction examination where orthopedic examiner diagnosed “bunions,” despite also stating “no problem [with] feet.”). The Veteran’s service treatment records show that on January 1991 enlistment report of medical history, the Veteran indicated having hay fever and an allergy was noted by the examiner. The September 2013 rating decision on appeal denied service connection for allergic rhinitis on the basis that the disability pre-existed service and clearly and unmistakably was not aggravated beyond its natural progression therein. As indicated above, allergic rhinitis or any respiratory disability was not noted on the report of medical examination but was noted on the report of medical history. As a result, the presumption of soundness applies. Service treatment records also include the Veteran’s complaint in January 1992 of allergies for one week manifested by a runny nose, watery eyes and wheezing. It was also noted he had come in with complaints before; the assessment was hay fever. In June 1992, he complained of bad allergies; the impression was allergic rhinitis. In January 1998, the Veteran complained of wheezing and chest pain when coughing. Physical examination revealed his lungs were not clear, wheezing, abnormal breath sounds present; the assessment was allergies. In November 2017 correspondence, the Veteran reported he continues to experience a runny nose, post-nasal drip, watery eyes, stuffy nose, among other symptomatology. After a review of the evidence of record, the Board finds that service connection for allergic rhinitis is warranted. Because this disability was not noted upon the Veteran’s entrance into service, it is presumed that he was sound upon entrance. The Board notes that an August 2012 VA examination diagnosed allergic rhinitis. To the extent the VA examiner opined that the Veteran’s current allergic rhinitis preexisted service, it supports a notion that the Veteran’s current allergic rhinitis had its onset in service. As this notion is in accord with the Veteran’s competent, credible report of recurrent symptomatology since service, diagnosed as allergic rhinitis, the Board concludes that service connection for allergic rhinitis is warranted. In reaching this determination, the Board notes that even assuming he had allergic rhinitis prior to service, the evidence does not clearly and unmistakably reflect that the disability was not aggravated by such service. Thus, because he was normal at service entrance with respect to this disability, and since the evidence does not clearly and unmistakably show that his allergic rhinitis both existed prior to service and was not aggravated by service, and he currently suffers from allergic rhinitis, the criteria for service connection have been met. REASONS FOR REMAND 5. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee disability is remanded. The Veteran contends that his right knee disability is related to service, to include due to trauma doing air assaults. Alternatively, he has raised the theory that his right knee disability is secondary to his service-connected left knee disability. See November 2013 notice of disagreement. The Veteran was afforded a VA examination in August 2012 in which he was diagnosed with bilateral knee strains, and it was reported by the Veteran that he injured his right knee in a jet ski accident in Florida in 1992; no nexus opinion was provided. Moreover, the examination did not address the secondary theory of entitlement. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Accordingly, the matter must be remanded for a new examination and opinion as to the etiology of the Veteran’s right knee disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 6. Entitlement to service connection for CFS is remanded. In this case, it is conceded that the Veteran served in Iraq during the Persian Gulf War. Therefore, the Veteran is considered a Persian Gulf Veteran and the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are applicable. The September 2013 decision on appeal failed to discuss these provisions. The Veteran should be provided notice of the applicable law and regulations and the provisions should be considered in the readjudication of the claim. See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board is required to consider all theories of entitlement either by the claim or by the evidence of record, as part of non-adversarial administrative adjudication process). Additionally, a new examination is necessary to address these provisions.   7. Entitlement to an initial rating in excess of 10 percent for GERD is remanded. 8. Entitlement to an initial rating of 30 percent for bilateral plantar fasciitis is remanded. 9. Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. 10. Entitlement to an initial rating in excess of 10 percent for a thoracolumbar spine disability is remanded. At the December 2020 hearing, the Veteran testified that his service-connected disabilities had worsened in severity since the most recent August 2012 VA examinations. Under the circumstances, the Board finds that VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his GERD, bilateral plantar fasciitis, left knee, and thoracolumbar spine disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Thus, the issues must be remanded. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the onset and etiology of his right knee disability. All indicated tests and studies should be conducted, and all findings reported in detail. For each right knee disability diagnosed, the examiner should opine as to whether it is at least as likely as not that such disability: (a) Whether it is at least as likely as not that the Veteran’s right knee disability/functional impairment had its onset or is otherwise related to the Veteran’s active service, to include any conceded trauma doing air assaults. (b) Whether any right knee disability/functional impairment diagnosed is proximately due to his service-connected left knee disability; or (c) Whether any right knee disability/functional impairment diagnosed has been aggravated by his service-connected left knee disability. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Please note that it is not necessary that the service-connected disability be diagnosed or even service-connected at the time the right knee disability/functional impairment is incurred to establish service connection, and reliance on this fact will render any secondary opinion inadequate. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to establish or rule out a diagnosis of chronic fatigue syndrome. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is thereafter asked to address each of the following questions: (a) Is it at least as likely as not that the Veteran has chronic fatigue syndrome? (b) If a diagnosis of chronic fatigue syndrome is ruled out, please state whether the Veteran’s fatigue is due to a known clinical diagnosis, to include whether it is a manifestation of a service-connected disability, to specifically include the Veteran’s service-connected anxiety disorder. 4. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current severity of his GERD. All findings should be reported in detail, including any functional effects associated with the Veteran’s GERD on his occupational ability. 5. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current severity of his bilateral plantar fasciitis. All findings should be reported in detail, including any functional effects associated with the Veteran’s bilateral plantar fasciitis on his occupational ability. 6. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current severity of his left knee and thoracolumbar spine disabilities. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing and (4) in non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is asked to address the following: (a) Please provide an opinion as to the full range of motion of the Veteran’s left knee and thoracolumbar spine disability in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in non-weight-bearing. Please specify range of motion measurements in all areas outlined above. If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). (b) The examiner should describe any pain, weakened movement, excess fatigability, instability of station or incoordination present. (Continued on the next page)   (c) The examiner should state whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. The examiner should provide a detailed rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner should state why that is so. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, 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.