Citation Nr: 21024575 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-45 221 DATE: April 23, 2021 ORDER Entitlement to service connection for a right ankle disability is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a respiratory disability is denied. REMANDED Entitlement to service connection for low back disability is remanded. Entitlement to service connection for traumatic brain injury is remanded. Entitlement to service connection for a headache disability is remanded. FINDINGS OF FACT 1. The Veteran’s right ankle disability is related to his in-service right ankle injury. 2. The Veteran’s right knee disability was caused by his service-connected right ankle disability. 3. The preponderance of the evidence of record is against finding that the Veteran has had a respiratory disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a respiratory disability are not 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 had active duty from June 2000 to June 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2020, the Veteran testified at a video conference hearing before the undersigned. A transcript of the proceeding is of record. The Veteran filed a motion to advance the case on the docket (AOD) based on financial hardship. See statement received December 2020. The Board finds that this is good or sufficient cause to advance the case on the docket. Thus, the AOD motion is granted. Service Connection 1. Entitlement to service connection for a right ankle disability 2. Entitlement to service connection for a right knee disability The Veteran contends that his right ankle disability and right knee disability are due to his injuries during service. Alternatively, he contends that his right knee disability is secondary to his right ankle disability. The Board concludes that the Veteran has a current right ankle disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). November 2001 service treatment records show that the Veteran sprained his ankle. During service, the Veteran was treated for his right ankle in three different records dated in November 2001. The Veteran has a current diagnosis of osteochondral lesion of the talus bone. See July 2020 treatment record. Thus, the question becomes whether the current disability is related to service. On this question there is a probative opinion in favor of the claim. The Veteran’s chiropractor opined that the Veteran’s current right ankle disability was due to an accident in service, and subsequent accidents the Veteran had. He also noted that the Veteran’s right ankle complaints stemmed from activities demanded on him by being in combat and on bad terrain to name a few. He explained that the Veteran’s right lateral talar dome osteochondral defect injury occurred most probably by twisting his ankle or when avoiding harm. The chiropractor noted that the right ankle disability goes hand in hand with his tear of the posterior horn of the lateral meniscus of his right knee, as this injury commonly occurs when the knee is suddenly twisted while the foot is planted on the ground. MRI studies show both of these current diagnoses. The chiropractor noted that both of these diagnoses have progressed into chronic status aggravating him and affecting his activities of daily living. The Veteran testified that his ankle and knee have been bothering him ever since service. He noted seeing a chiropractor since 2006. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current right ankle disability is related to service. The evidence is also in equipoise as to whether the Veteran’s right knee disability is caused or aggravated by his right ankle disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a right ankle disability and right knee disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for a respiratory disability The Veteran contends that he has chronic obstructive pulmonary disease (COPD) that is due to his exposure to burn pits during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Although, the Board concedes that the Veteran was exposed to burn pits and other hazardous exposure during his service in Southwest Asia, the Board concludes that the Veteran does not have a current respiratory diagnosis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The January 2016 examiner evaluated the Veteran and determined that, while he experienced bronchitis and sore throat during service, he did not have a diagnosis of any respiratory disability during the appeal period. VA treatment records and private treatment records do not show treatment for a respiratory disability. The Veteran reported that he has bronchitis once a year which does not require antibiotics. He denied a productive cough during his examination. The Veteran reported exercising two to three times a week by rowing on a stationary rower and rows about 10,000 meters at a time. The Veteran denied any history of asthma or any chronic respiratory disorder. The examiner concluded that the Veteran had no diagnosis of a respiratory condition. The January 2016 examiner explained that no pathology existed to render a diagnosis. The Veteran’s history and physical examination were not consistent with claimed condition of chronic obstructive pulmonary disease (COPD). His service treatment records show only occasional treatment for bronchitis and sore throat. The examiner explained that which respect to the respiratory system, bronchitis and sore throats are self-limited illnesses. The Post deployment screen dated in August 2003 after returning from Iraq did not show any respiratory complaints. Chest x-rays done at the time of the January 2016 VA examination did not show hyperinflated lungs which would be typically seen in COPD. Chest x-rays instead were completely normal. The examiner opined that it was less likely than not that the Veteran’s disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. While the Veteran believes he has a current diagnosis of COPD or a respiratory disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. REASONS FOR REMAND 1. Entitlement to service connection for low back disability is remanded. The Veteran claims that his diagnosed back disability is related to his military service. See September 2015 private treatment record (noting a lumbar disc degeneration diagnosis). In the alternative, he claims that his back disability is due to his right ankle and right knee disabilities. He explained that his right ankle and right knee disabilities caused him to limp which caused low back pain. Per this decision, service connection has been granted for the Veteran’s right ankle and right knee disabilities. The Veteran has not been afforded an examination for his back disability and no opinion has been obtained as to whether the Veteran’s back disability is due to service or caused or aggravated by his service-connected ankle and knee disabilities. For these reasons, this issue must be remanded. 2. Entitlement to service connection for traumatic brain injury is remanded. The Veteran claims that he has a traumatic brain injury (TBI) due to air blast exposure while in Kuwait. During service, he sought treatment after one air blast because he was not feeling well, and one eye was dilated. The Veteran had a TBI consult in December 2015. The physician assistant noted that the Veteran had a mild TBI, but it appeared that he had had a good recovery with no residual effects. See December 2015 VA treatment record. Despite this, an opinion is needed as to whether the Veteran had a TBI diagnosis with residuals at any time during the appeal period. The Veteran has not been afforded a VA examination for his claimed TBI disability. For these reasons, this issue must be remanded. 3. Entitlement to service connection for a headache disability is remanded. The Veteran claims that his headache disability is due to his military service, TBI or other service-connected disabilities. The Veteran is already service-connected for posttraumatic stress disorder. The December 2015 VA physician assistant noted that the Veteran headaches appeared to be related to behavioral health issues. He was encouraged to follow-up with behavioral health for his headaches. The Veteran has not been afforded an examination for his headache disability. An examination is needed to determine if his headaches are caused or aggravated by his service-connected PTSD. The examiner should also determine whether the Veteran’s headaches are symptoms of his service-connected PTSD, or if his headaches are a diagnosed headache disability in and of itself. For these reasons, this issue must be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his back disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s low back disability at least as likely as not related to service? Provide a rationale to support the opinion(s). Is the Veteran’s low back disability at least as likely as not proximately due to service-connected right ankle and right knee disabilities? Is the Veteran’s low back disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected right ankle and right knee disabilities? 2. Schedule the Veteran for a VA examination for his TBI. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is a TBI at least as likely as not related to service, including exposure to air blasts? The examiner’s attention is directed to the December 2015 VA treatment record that notes that the Veteran had a TBI in the past. Provide a rationale to support the opinion(s). The examiner should specifically note whether the Veteran has had a TBI diagnosis or TBI residuals at any time during the appeal period. 3. Schedule the Veteran for a VA examination for his headache disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s headache disability at least as likely as not related to service, including whether it began during service? Provide a rationale to support the opinion(s). Is Veteran’s headache disability at least as likely as not proximately due to his service-connected posttraumatic stress disorder (PTSD)? Is the Veteran’s headache disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected PTSD? (Continued on the next page)   4. If the examiner conducting the headache examination is unable to provide the requested opinions, request an opinion from a clinician who specializes in psychiatric disabilities to provide the opinions above. 5. Readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tahirih S. Samadani, 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.