Citation Nr: 21015505 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-44 178 DATE: March 17, 2021 ORDER New and material evidence not having been received, reopening the claim of entitlement to service connection for bilateral hearing loss is denied. New and material evidence not having been received, reopening the claim of entitlement to service connection for a respiratory condition, including as due to undiagnosed illness, is denied. An initial rating in excess of 10 percent for the service-connected left ankle disability is denied. REMANDED Entitlement to service connection for a left upper extremity disability, claimed as joint pain, is remanded. Entitlement to service connection for a right upper extremity disability, claimed as joint pain, is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a skin disorder is remanded. FINDINGS OF FACT 1. In May 2009, the Regional Office (RO) denied service connection for bilateral hearing loss and for a lung condition based upon the absence of evidence of a hearing loss disability or a lung condition. 2. The evidence added to the record since May 2009 does not show the presence of a hearing loss disability as defined by VA regulation or the presence of a lung disorder and, therefore, does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for bilateral hearing loss or a respiratory condition. 3. The Veteran’s left ankle disability is manifested by no more than moderate limited motion of the ankle throughout this appeal period. CONCLUSIONS OF LAW 1. New and material evidence has not been presented to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has not been presented to reopen the claim of entitlement to service connection for a respiratory condition, including as due to undiagnosed illness. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for an initial rating in excess of 10 percent for the service-connected left ankle disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from March 2002 to May 2007 with recognized service in Iraq and Kuwait during the Persian Gulf Era. The matters on appeal come before the Board of Veterans’ Appeals (Board) from July 2012 and August 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded by the Board in October 2018 for additional development. The matters are now again before the Board for adjudication. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Bilateral Hearing Loss In May 2009, the RO issued a rating decision denying service connection for bilateral hearing loss. The RO noted the Veteran’s service treatment records were not available at the time of the decision, but denied service connection for bilateral hearing loss since there is no evidence the claimed condition exists. The evidence available and reviewed by the RO included only the Veteran’s claim. The Veteran did not file a notice of disagreement with the May 2009 decision and it became final. He filed this request to reopen the matter of whether service connection is warranted for bilateral hearing loss in July 2013. The evidence received into the record since May 2009 includes additional statements of both the Veteran and his representative, outpatient clinical records, and an October 2019 VA examination report. The Board initially notes that the Veteran and his representative have made statements into the record, but have not provided any argument related to the hearing loss claim. The Board has also reviewed VA and private clinical records, none of which show treatment for a hearing loss disability. The October 2019 VA examination report shows the Veteran having hearing within normal limits in both ears. There was no indication of hearing loss, including as defined by 38 C.F.R. § 3.385. Based upon the foregoing, the Board finds that new and material evidence has not been submitted, and reopening of the claim for service connection for bilateral hearing loss is not in order. Respiratory Condition In February 2009, the Veteran filed a claim for breathing problems. The RO denied the claim for service connection for a lung condition, claimed as breathing problems, in May 2009. The Veteran did not file a notice of disagreement with that decision and it became final. In July 2013, the Veteran, through his representative, filed a claim for service connection for a respiratory condition, including as due to Gulf War Syndrome. Although the Veteran is now claiming a lung (respiratory) disability on the basis of his Gulf War service, new and material evidence is needed. New and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory of entitlement; the mere fact that a veteran alleges different theories of entitlement, from those previously alleged, does not obviate the need to have new and material evidence to reopen his or her claim. See Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008); see also Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006). In the February 2009 decision, the RO noted the Veteran’s service treatment records were not available at the time of the decision, but denied service connection for a lung condition due to a lack of evidence the claimed condition exists. The evidence available and reviewed by the RO included only the Veteran’s claim. The evidence received into the record since May 2009 includes additional statements of both the Veteran and his representative, outpatient clinical records, and an October 2019 VA examination report. The Board initially notes that the Veteran and his representative have made statements into the record, but have not provided any argument related to the respiratory disorder claim other than to generally claim the Veteran has a respiratory disorder related to his Gulf War service. The Board has also reviewed VA and private clinical records, none of which show treatment for a respiratory disorder. An April 2016 Gulf War assessment conducted at Walter Reed Medical Center shows an indication that the Veteran has active problems including “Respiratory conditions due to unspecified external agent on 05 April 2016.” The meaning of this statement at the beginning of the record is unclear given there is no treatment for a respiratory disorder in the record. Further, later in the report are the answers to a questionnaire the Veteran filled out which includes a response to the question, “What health effects or symptoms are you currently experiencing that you believe are due to an exposure to chemical warfare agents?” The Veteran’s response was limited to sinus and skin issues; there was no mention of any respiratory issues. Moreover, the physical examination and medical history taken also include no mention of respiratory issues. Thus, this report, while new, is not material as it does not show that the Veteran has a respiratory disorder. The Board also notes that VA concluded in June 2019, after a review of the assessment at Walter Reed and a review of the Veteran’s other records, that he had not had a symptomatic exposure to chemical warfare agents (CWA) or weaponized toxic industrial chemicals (WTIC). The October 2019 VA examination report shows the conclusion that the Veteran does not now have, nor has he ever been diagnosed with a respiratory condition. The examiner noted that the Veteran has no respiratory diagnosis because there are no findings, signs or symptoms to support a diagnosis. This evidence too, while new, is not material. There is no indication of the presence of the claimed disorder. Moreover, there is no evidence of symptoms of the disorder, such that assessing this claim under the regulations related to Persian Gulf related illnesses is not warranted. Based upon the foregoing, the Board finds that new and material evidence has not been submitted, and reopening of the claim for service connection for a respiratory disorder, also claimed as breathing problems and a lung condition, is not in order. Increased Rating – Left Ankle The Veteran was initially service connection for left ankle osteochondritis dissecans status post arthroscopy (left ankle disability) by way of the July 2012 decision on appeal. An initial 10 percent rating was assigned effective September 7, 2011, the date of his claim. The Veteran contends that he is entitled to a higher rating. The Veteran’s left ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5271, for limitation of motion of the ankle. Initially, the Board notes there were recent changes to the regulations pertaining to musculoskeletal disabilities, to include changes to DC 5271. These changes became effective February 7, 2021. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. In this case, DC 5271 was changed in order to provide a definition for moderate and marked limitation of motion of the ankle. Under the former rating criteria, DC 5271 provides a 10 percent rating for moderate limited motion of the ankle, and the maximum 20 percent rating is allowed for marked limited motion of the ankle. Moderate and marked are not defined by these prior rating criteria. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate. “Marked” means “having a distinctive or emphasized character.” See www.merriam-webster.com/dictionary/marked. Under the revised rating criteria, DC 5271 continues to allow a 10 percent rating for moderate limited motion of the ankle and a 20 percent rating for marked limitation of the ankle. The new criteria defines moderate limited motion as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion; and defines marked limited motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s left ankle disability under both the old and new rating criteria. The Board has reviewed the clinical evidence, VA examination reports and all lay statements in coming to this conclusion. The Veteran filed this claim in September 2011. Within the year prior, in April 2010, VA primary care notes show the Veteran reporting constant left ankle pain, after which the Veteran was referred for evaluation by a podiatrist. A VA podiatry clinic record dated in May 2010 shows the Veteran reporting occasional left ankle pain when the weather changes. The physical examination at that time did not include any range of motion findings, but did include the general notation of “good ROM b/l ankle joints, no pain with ROM, no crepitus, no instability.” In November 2011, the Veteran’s wife submitted a statement and indicated the Veteran, due to his ankle disability, cannot run short or long distances, jump rope, or carry a heavy load for long periods of time. She reported that he has limited mobility and left ankle pain. A statement from a friend, also received in November 2011, suggests the Veteran was limited in gym workouts due to left ankle pain. The Veteran was then afforded a VA examination in March 2012. The Veteran continued to describe occasional, acute, flares of pain at a severe level, particularly with cold weather. The Veteran’s left ankle plantar flexion was limited to 30 degrees with painful motion beginning at 30 degrees. The left ankle plantar dorsiflexion was limited to 10 degrees with pain beginning at 10 degrees. The ranges of motion were unchanged after repetitive testing. The examiner described the functional loss as including less movement than normal, excess fatigability, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing and weight-bearing. In a separate area of the report entitled functional impact, the examiner recognized the left ankle disability impacts the Veteran’s ability to work in that it limits his climbing, weight-bearing and balance. The examiner noted that there was no pain on palpation and muscle strength testing was normal. Instability was also normal. The examiner confirmed that the Veteran’s left ankle is not ankylosed. The examiner recognized the Veteran’s left ankle scar, but noted that it is not painful and/or unstable, or covering an area greater than six square inches. The examiner also noted that the Veteran wears a left ankle brace anytime he knows he is doing something physical. Diagnostic testing did not reveal any abnormal findings in the left ankle as it was noted as “unremarkable.” Private records dated in July 2013 show the Veteran again being treated for ankle pain. The physician noted the musculoskeletal physical examination was normal. No range of motion testing was done, and no more specific findings were made. March 2014 private records suggest the Veteran has “Left Ankle Instability (Functional).” He continued to report pain. This physician noted the Veteran’s left ankle range of motion was to 15 degrees of dorsiflexion and 45 degrees of plantar flexion. Physical examination revealed the ankle to be intact and strong with no varus/valgus instability. Because a long amount of time passed without additional examination, the Board remanded this issue in October 2018 for an updated VA examination. The Veteran was more recently examined in August 2019. The Veteran confirmed at this time that he was not under any current treatment for his left ankle, but that he continues to experience swelling and loss of mobility. He reported his disability impacts his ability to move quickly, to carry things, and to go hiking or do things like spring cleaning. The Veteran reported experiencing flare-ups of shooting pain and ankle pops daily. He reported experiencing moderate to severe pain following hard work, long walks, hikes, or standing in lines with sandals. He also indicated hiking can trigger a multi-day flare-up. The Veteran also reported that running even a short distance, carrying weight for a period of time, and working out legs at the gym are limited due to his left ankle symptoms. Physical examination of the ankle revealed dorsiflexion limited to 15 degrees and plantar flexion limited to 35 degrees. The examiner recognized the Veteran was experiencing pain, but noted that it does not result in or cause additional functional loss. This examiner also recognized the presence of mild tenderness or pain on palpation of the entire ankle joint, but no crepitus and no evidence of pain with weight-bearing. The examiner also noted there was no evidence of pain on passive or non-weight bearing testing of the left ankle. Repetitive testing occurred, but the range of motion was unchanged. Muscle strength testing was normal and there was no indication of muscle atrophy. This examiner also confirmed that the Veteran’s left ankle was not ankylosed, and that joint stability testing remained normal. The examiner noted the Veteran was not being examined during a flare-up or after repetitive use over time, but that the examination was medically consistent with the Veteran’s statements describing functional loss. The examiner did estimate that pain during a flare-up would likely limit the Veteran’s dorsiflexion to 10 degrees and his plantar flexion to 25 degrees. An addendum report shows the Veteran’s passive range of motion was 0 to 15 degrees dorsiflexion and 0 to 35 degrees plantar flexion. The Board acknowledges the Veteran’s lay reports of symptoms, as well as the observations of his wife and friend, and that there was functional loss due to pain, including during flare-ups. However, even considering the Veteran’s lay reports of symptoms and functional loss; that he experiences limitations during cold weather and with use when heavy lifting or running, would not result in symptoms more nearly approximating marked limitation so distinctive or emphasized that it would approximate marked limited motion. The Board does recognize the limits the left ankle disability causes and finds they more closely approximate a moderate degree of disability. Moreover, the Board recognizes the Veteran has not been examined since the very recent changes in the rating criteria. However, the Veteran has not reported any worsening of his left ankle disability since the August 2019 examination and that examination did not show motion limited to less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, even when estimating the additional loss during flare-up. Because there has been no additional report of worsening, the Board finds a remand for a new examination is not necessary as the August 2019 range of motion findings likely represent the current severity of the disability. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. There is no evidence that the left ankle disability is ankylosed in any way (DC 5270 and DC 5272), and there is no indication of malunion of the os calcis or astragalus (DC 5273), or astragalectomy (DC 5274). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 10 percent for his service-connected left ankle disability under both the former and new rating criteria. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Following the Board’s October 2018 remand, the Veteran underwent VA examination in August 2019. The examination report entitled Gulf War General Medical Examination appears to show the examiner finding that the Veteran has no diagnosed illnesses without an etiology, and no additional signs or symptoms that may represent an undiagnosed illness or a diagnosed medically unexplained chronic multisymptom illness. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. At the same time, the examiner appears to refer to the individual examination report for the separate disabilities for more information related to diagnosis and etiology. The Board naturally expected to find such information in these separate reports. With regard to the skin disorder claim, the examiner noted the Veteran as having a diagnosis of chronic urticaria with a date of diagnosis listed as 2005, which would have been during the Veteran’s active service. The examiner, however, went on to list several conclusions at the end of the report including a finding that the Veteran’s skin condition is less likely than not related to the Veteran’s active service. There was no explanation as to how the condition could have its onset in service in 2005, but be unrelated to service. Due to this inconsistent finding within the report without any provided rationale, the Board finds this opinion to lack probative value. A remand is required in order to obtain an addendum opinion. Similarly, with regard to the Veteran’s claim for service connection for headaches, the examiner noted the Veteran’s report that he first started experiencing headaches during his tour in Kuwait. Nonetheless, the examiner concluded that the Veteran “has likely developed the condition over the 12 years since he separated from service. His condition is not secondary to his tour of duty in Kuwait. The claimant’s headache condition is a disease with a clear and specific etiology and diagnosis. Therefore, the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.” There was no rationale provided for finding that the Veteran’s headaches developed after service while simultaneously recognizing the Veteran’s report of the onset of headaches during his tour in Kuwait. This opinion, therefore, also lacks probative value and this issue also requires remand for an adequate addendum opinion. The examiner provided essentially the same opinion with regard to the Veteran’s claim of joint pain in his upper extremities. The examination report shows the diagnosis as bilateral shoulder strain with a noted date of diagnosis as 2004, which was within the Veteran’s active duty years. As with the headache claim, the examiner summarily reported that the Veteran “has likely developed the condition over the 12 years since he separated from service. His condition is not secondary to his tour of duty in Kuwait. Therefore, the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.” There was no rationale provided for finding that the Veteran’s right and left shoulder strain developed after service while also reporting an onset during his active service. This opinion, therefore, also lacks probative value and this issue also requires remand for an adequate addendum opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion(s) from an appropriate clinician(s) regarding whether the Veteran’s skin condition, headaches, and right and left upper extremity disabilities are is at least as likely as not related to his active service. The clinician must recognize the Veteran’s reported history of symptoms, and the August 2019 examiner’s noted dates of diagnosis. In particular, the Veteran has reported experiencing skin symptoms since service and the examiner noted the date of diagnosis as 2005, during his active service. The Veteran reported first experiencing headaches during his tour in Kuwait. Further, the August 2019 examiner found the Veteran’s right and left shoulder strains to have been diagnosed in 2004, during the Veteran’s active service. The addendum report should include reasons for any opinion expressed. The rationale provided must consider the Veteran’s reported history of symptoms. If the clinician completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person’s knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. (Continued on the next page)   2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.