Citation Nr: 21020723 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-53 432A DATE: April 8, 2021 ORDER Entitlement to service connection for a respiratory system condition is denied. Entitlement to service connection for a back condition is denied. Entitlement to service connection for a bilateral ankle condition is denied. Entitlement to service connection for nose bleeds is denied. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for a sleep disorder is remanded. FINDINGS OF FACT 1. The Veteran’s allergic rhinitis neither had its onset in nor is it otherwise related to his active duty service. 2. The Veteran does not have current sinusitis or nose bleed disabilities. 3. The Veteran’s back condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service event, injury or disease. 4. The Veteran’s bilateral ankle condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory system condition, to include allergic rhinitis, sinusitis and nose bleeds are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a back condition are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a bilateral ankle condition are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for nose bleeds are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1975 to February 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. This matter was previously before the Board in January 2020. At that time, the Board, among other things, remanded the claims for service connection for headaches, a respiratory condition, a sleep disorder, a back condition, a bilateral ankle condition and nose bleeds in order to obtain VA examinations. As the record reflects that adequate VA examinations for the Veteran’s respiratory condition, back condition, bilateral ankle condition and nose bleeds were obtained, the Board finds that there has been substantial compliance with the pertinent remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As explained in the remand portion of this decision, the Board finds the VA examinations for the Veteran’s headaches and a sleep disorder inadequate, requiring further remand. The Veteran’s claim for service connection for bilateral hearing loss was also remanded as part of the January 2020 Board decision. That claim was granted in an August 2020 rating decision. That decision constitutes a full grant of the benefits, and the claim is no longer before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran’s Contentions The Veteran contends that his respiratory condition is related to his exposure to fumes and chemicals in service and that his back and ankle conditions are related to his physical training, duties and participation in sports during active service. Service Connection Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Respiratory System Condition The Veteran’s claim for service connection for a respiratory condition was remanded as part of the January 2020 Board decision to obtain an adequate VA examination that considered the Veteran’s competent reports of symptoms in forming a medical opinion. The Veteran’s claim for service connection for nose bleeds was remanded as inextricably intertwined with the respiratory condition. Following remand, the Veteran was afforded a VA examination for his respiratory condition in October 2020. The October 2020 VA examiner diagnosed the Veteran with allergic rhinitis. The examiner noted that there was no evidence of chronic sinusitis or nose bleeds (epistaxis). The examiner acknowledged the Veteran’s report of continued symptoms, but concluded there was no documented evidence to support a conclusion that his symptoms were related to an acute upper respiratory infection the Veteran experienced in 1976. The examiner noted that the in-service infection had resolved with treatment and that there were no other complaints, treatment or symptoms of sinus problems in service, including on the separation examination. The examiner also noted that the first documented complaints of sinus issues was in 2014, more than 30 years after discharge from service. The examiner explained that allergic rhinitis is the result of the immune system’s reaction when exposed to an allergen and that there was no credible medical evidence linking exposure to fumes and other chemicals to allergic rhinitis. The examiner concluded that the Veteran’s allergic rhinitis was less likely than not incurred in or caused by service. VA and private treatment records confirm that the Veteran has a current disability of allergic rhinitis and confirm that the Veteran did not have chronic sinusitis or epistaxis. Private treatment notes from November 2016 relate the Veteran’s rhinitis to his exposures in service. The Veteran testified and submitted lay statements indicating that he has had sinus symptoms since service that he attributed to his exposure to fumes and chemicals as part of his duties as base security at an overseas military base. The Board finds the opinion of the October 2020 VA examiner entitled to probative weight as it is based on a review of the relevant medical records, consideration of the Veteran’s complaints and provides an adequate rationale. See Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion.). While the Veteran’s private treatment providers suggested a relationship between service and the Veteran’s respiratory condition, they offered no rationale in support of their opinions and did not cite any relevant medical literature suggesting a link between the Veteran’s exposures in service and his respiratory condition. The Board thus finds those opinions entitled to less probative weight. While the Veteran is competent to report his observable symptoms, there is no indication in the record that he is qualified to render an opinion relating his rhinitis to exposures in service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the foregoing, the Board concludes that the preponderance of the evidence weighs against service connection for a respiratory condition, including nosebleeds, and the claims are denied. As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Back Condition The Veteran’s claim for service connection for a back condition was reopened as part of the January 2020 Board decision and remanded for to obtain a VA examination as to the nature and etiology of the Veteran’s back condition. The Veteran was afforded a VA examination for his back in February 2020. The VA examiner noted that the Veteran had degenerative arthritis of the spine. According to the Veteran, his back condition was related to a bone marrow aspiration in service, or his duties repelling out of helicopters and his participation in sports while in service. The VA examiner concluded that it was less likely than not that his lumbar spine arthritis was related to service. The examiner noted that other than the bone marrow aspiration in 1979, there was no evidence of a back condition in the Veteran’s service treatment records (STRs) and no medical records for 30 years following service showing a back condition. The VA examiner explained that the Veteran’s current diagnosis of degenerative arthritis was not consistent with the pain related to the 1979 bone marrow aspiration, and that medical literature did not support a relationship between them. The examiner explained that the Veteran’s degenerative arthritis was typically caused by aging, genetics and intrinsic disc loading. STRs confirm that the Veteran underwent a bone marrow aspiration procedure in January 1979. VA and private treatment records, including radiology reports, confirm that the Veteran has mild degenerative arthritis in his back, with complaints of lower back pain. The Veteran testified that his back pain started after the bone marrow test in service and that he self-medicated after his discharge from service. The Board notes that the Veteran’s degenerative arthritis is an enumerated chronic condition under 38 C.F.R. § 3.309(a). The Board must thus resolve whether the Veteran’s back condition is presumptively or directly related to service. The Board finds the February 2020 VA examiner’s opinion to be adequate and highly probative as it is based on an accurate medical history and provides and explanation that contains clear conclusions with supporting evidence. See Rodriguez, supra, at 302-04. Notably, there are no contradictory medical opinions relating the Veteran’s current degenerative arthritis of the back to service. Although the Veteran is competent to report his symptoms, there is no indication in the record that he is qualified to provide a nexus opinion relating his current disability to service. See Jandreau, supra. Accordingly, the preponderance of evidence is against a finding of service connection for a back condition on a direct basis. The Board also finds that the preponderance of evidence is against a finding that the Veteran is entitled to presumptive service connection for his back condition. The disability was not shown as chronic in service, did not manifest to a compensable degree with a presumptive period and was not noted in service with attributable continuity of symptomatology. The January 1979 separation examination did not note any back problems. Private treatment records reflect the Veteran’s complaints of back pain starting in 2013. The evidence of record thus negates any finding that the Veteran was diagnosed with arthritis within the presumptive period or had continuity of symptomatology. Although the Veteran reported that his back pain continued after service, as noted, the first reported treatment for back pain was several decades after service. Although not dispositive, a lack of treatment is a factor that weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that evidence of a prolonged period without medical complaint can be considered, along wither other factors concerning the veteran’s health and medical treatment during and after military service). In sum, the Board finds that service connection for a back condition on either direct or presumptive basis is not supported by a preponderance of evidence. Accordingly, the claim of entitlement to service connection for a back condition is denied. As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bilateral Ankle Condition The Veteran’s claim for service connection for a bilateral ankle condition was remanded as part of the January 2020 Board decision in order to obtain an adequate VA examination that addressed the Veteran’s competent report of symptoms. The Veteran was afforded an updated VA examination in February 2020. The Veteran reported that he injured his ankles as part of his physical training in service, from repelling out of helicopters and from playing sports. The VA examiner noted that the Veteran had chronic collateral ligament sprain in his ankles and degenerative arthritis in his right ankle. The examiner also acknowledged that the Veteran’s STRs included evidence of an acute left ankle sprain and an acute right ankle sprain, with no further evidence of ankle conditions in the STRs. The examiner noted that the Veteran’s separation examination was silent for ankle conditions and that there were no medical records evidencing an ankle condition for 30 years after the Veteran’s discharge from service. The VA examiner concluded that the injuries in service were acute only, that there was no evidence of chronicity of care and that medical literature did not support a finding that acute ankle injuries caused degenerative changes or collateral ligament sprain, and therefore there was no nexus between the Veteran’s current ankle disabilities and service. The Veteran’s STRs confirm that he suffered an inversion injury to an ankle in February 1977 and twisted an ankle while playing basketball in January 1978. VA treatment records confirm the Veteran’s complaints of ankle pain and his claim that he has had symptoms since service. The Veteran testified that he hurt his ankles during active service, and they continued to bother him after his discharge. The Veteran testified that he would self-treat his ankle conditions with wraps or braces and that they continued to deteriorate until he finally sought medical attention. The Board finds the opinion of the February 2020 VA examiner to be entitled to probative weight as it is based on a review of the relevant medical records, consideration of the Veteran’s reports of his symptoms, a physical examination and is supported by an adequate rationale. See Rodriguez, supra, at 302-04. Notably, there are no contradictory medical opinions. Although the Veteran is competent to report his observable symptoms, there is no indication in the record that he is qualified to offer an etiological opinion relating his ankle conditions to service. See Jandreau, supra. Accordingly, the preponderance of the evidence is against a finding that the Veteran’s bilateral ankle condition is related to service. The Board acknowledges that the Veteran has been diagnosed with degenerative arthritis of the right ankle, and will thus address whether he is entitled to presumptive service connection based on chronicity. The Board finds, however, that the preponderance of evidence is against a finding that the Veteran is entitled to presumptive service connection for his right ankle arthritis. The right ankle disability was not shown as chronic in service, did not manifest to a compensable degree with a presumptive period and was not noted in service with attributable continuity of symptomatology. Although the Veteran reported that his ankle pain continued after service, the evidence does not support a finding of continuity of symptomatology. The Veteran did not report any ankle problems at the time of his separation examination and the first reported treatment for ankle pain was several decades after service. Although not dispositive, a lack of treatment is a factor that weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that evidence of a prolonged period without medical complaint can be considered, along wither other factors concerning the veteran’s health and medical treatment during and after military service). In sum, the Board finds that service connection for a bilateral ankle condition on a direct basis or for a right ankle condition on a presumptive basis is not supported by a preponderance of evidence. Accordingly, the claim of entitlement to service connection for a bilateral ankle condition is denied. As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for headaches and a sleep disorder is remanded. The Veteran contends that he has chronic headaches since service and that his insomnia started in service. Although the Veteran was afforded VA examinations for these conditions following the January 2020 Board decision, the Board finds those examinations inadequate, requiring further remand. VA treatment records confirm that the Veteran has a current disability of insomnia and the Veteran has consistently reported that his condition started in service. the February 2020 VA examiner concluded, in part, that the Veteran’s condition was less likely than not incurred in or cause by service because there was no evidence of a sleep disorder in service. The Veteran’s STRs include, however, a September 1978 entry indicating that the Veteran complained of insomnia. As the February 2020 VA examiner based the opinion on an inaccurate conclusion, the Board finds the examination inadequate, requiring remand. Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate.) The February 2020 VA examination for the Veteran’s headaches is also inadequate. The VA examiner concluded, in part, that the Veteran’s headaches were not related to service because there was no evidence of a headache diagnosis or symptoms in service. In reaching this conclusion, however, the examiner failed to consider the Veteran’s consistent reports that his headaches started in service and have been chronic since. A medical opinion based on the absence of treatment records without consideration of a veteran’s competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Accordingly, remand is warranted to provide an adequate VA examination for the Veteran’s headache disability. Barr, supra. The matter is REMANDED for the following action: 1. Obtain updated treatment records. 2. After the development in item 1, schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology of the Veteran’s insomnia. The claims file (and a copy of this remand) must be made available to and be reviewed by the examiner and all necessary tests conducted. The examiner is requested to opine as to whether it is at least as likely as not that the Veteran’s insomnia was incurred in or otherwise related to service. The examiner should specifically address the September 1978 service treatment record noting the Veteran’s complaint of insomnia, as well as his reports that the condition has been ongoing since service. 3. After completing the development in item 1, schedule the Veteran for a VA examination to determine the etiology of the Veteran’s headaches. The claims file (and a copy of this remand) must be provided to and reviewed by the examiner as part of the examination and all necessary tests should be conducted. The examiner is requested to opine whether it is at least as likely as not that the Veteran’s headaches were incurred in service or are otherwise related to service? The examiner should specifically address the Veteran’s reports that his headaches started in service and have continue since discharge. The examiners are advised that the Veteran is competent to report symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A complete rationale for the examiners’ opinions should be provided, citing to specific evidence of record and any relevant medical literature, as necessary. If the examiners cannot provide the requested opinions without resorting to speculation, it must be stated, and the examiner must provide the reasons why an opinion would require speculation. The examiners must indicate whether there was any further need for information or testing necessary to provide an opinion. Additionally, the examiners must indicate whether any opinions could not be rendered due to limitation of knowledge in the medical community at large, and not those of the examiner. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, Associate 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.