Citation Nr: 21028081 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-67 077 DATE: May 10, 2021 ORDER Service connection for a bilateral hip disorder is denied. Service connection for a bilateral ankle disorder is denied. REMANDED Entitlement to service connection for right shoulder tendonitis. FINDINGS OF FACT 1. The Veteran served on active duty from September 1984 to July 1987 and from November 1990 to September 1991, including service in Southwest Asia from January to August 1991. 2. An undiagnosed illness or medically unexplained chronic multi-symptom illness (MUCMI) manifested by joint pain of the bilateral hips, bilateral ankles, and/or the right shoulder has not been shown. 3. A current disorder of the bilateral hips is not shown 4. A bilateral ankle disorder was not shown in service, was not shown to a compensable degree within one year of service, and symptoms were not continuous since service; a current bilateral ankle disorder, diagnosed as osteoarthritis, is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. A bilateral hip disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1117, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.317 (2020). 2. A bilateral ankle disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1117, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.309, 3.317 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In January 2021, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. At the hearing, the Veteran requested 90 days to submit additional evidence in support of his appeal. To date, no additional evidence has been received. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a MUCMI. 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). An undiagnosed illness requires that the illness, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(4). There is no burden on a veteran to demonstrate that a medical professional has eliminated all possible diagnoses before the veteran can be compensated for a disability stemming from an undiagnosed illness. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). Service personnel records confirm that the Veteran served in Southwest Asia. Therefore, he is a Persian Gulf Veteran. At the January 2021 hearing, he testified to being exposed to Sarin gas and to oil fires while serving in Kuwait. He also asserted that he and other soldiers were given anthrax shots and nerve agent pills in case SCUD missiles were carrying chemical or biological agents. The threshold question is whether he has a chronic illness manifested by symptoms in the bilateral hips and bilateral ankles. Bilateral Hip Disorder In August 2014, a VA examiner found that the Veteran's hips were normal and rendered no diagnosis. While the Veteran reported developing hip pain and stiffness within a month of his Desert Storm service, those symptoms eventually resolved. A review of treatment notes does not reveal any signs or symptoms related to the hips. At the January 2021 hearing, the Veteran testified to pain on the side of his hips while walking. Pain alone can constitute a disability if it results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, the record fails to show that the claimed hip symptoms resulted in functional impairment. Range of motion testing, including repetitive motion, resulted in no functional loss at the VA examination and treatment notes do not document any complaint, treatment, or diagnosis for bilateral hips. Absent a current diagnosis or functional impairment, there is no disorder for which service connection may be granted. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). Thus, the medical evidence does not support the appeal. Bilateral Ankle Disorder An August 2014 VA ankle examination was clinically normal but noted a finding of osteoarthritis by X-ray. Thus, a current diagnosis is shown. However, because there is an identified diagnosis, by definition, the signs and symptoms do not represent an undiagnosed illness. Therefore, a bilateral ankle disorder is not presumed to be related to Gulf War service. Nevertheless, the Board will consider other theories of entitlement. In this regard, as there is a currently diagnosed disorder of the bilateral ankles, the first element of direct service connection a current disorder is met. As to in in-service incurrence, the service treatment records (STRs) are silent for complaint, treatment, or diagnosis related to the bilateral ankles. In January 2021, the Veteran reported being an ammunition specialist in service and working 16-hour days with a lot of heavy lifting. However, he also testified that he did not seek treatment for the bilateral ankles in service, and that he began to experience aches in the ankles a couple of years after service. As the STRs did not reflect symptoms of or treatment for ankle complaints and the Veteran acknowledged that he did not have ankle problems for a couple years after service, the second element of an in-service incurrence has not been met. Moreover, other than the Veteran's testimony, the evidence does not suggest a nexus between the current disorders and service. At a November 2014 VA ankle examination, he reported bilateral ankle pain and stiffness with weight-bearing in the morning, which the examiner related was common in the general population at large in the Veteran's age group and was complicated by the fact he had poorly-controlled diabetes. The examiner further indicated that there were no diagnosed disorders without pathophysiology or etiology and no disorders related to known or unknown Gulf War exposures. There are no contradictory medical opinions of record. Thus, the third element of service connection a medical nexus is not met. As such, the medical evidence does not support service connection on a direct basis. Next, arthritis is a chronic disease under 38 C.F.R. § 3.309 and presumptive service connection will be considered. However, no chronic disease or injury was shown in service. As noted above, the STRs are silent for complaints of, treatment for, or diagnosis arthritis or any bilateral ankle disorder. Therefore, the medical evidence does not support presumptive service connection on a "chronic disease or injury shown in service" basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. Specifically, the medical evidence shows the initial diagnosis of arthritis by X-ray was in January 2013 and no reports of symptomatology prior to that time. As the Veteran separated from service in September 1991 and symptoms associated with arthritis were not shown for more than 20 years later, the medical evidence does not support service connection on a "continuity of symptomatology" basis. Further, arthritis did not manifest to a degree of 10 percent or more within one year from the date of separation of service. The Veteran separated from service in 1991 but the earliest date associated with arthritis is 2013. This evidence does not support presumptive service connection on a "manifest within one-year from separation" basis. Therefore, presumptive service connection on any basis is not supported by the medical evidence. The Board has considered the Veteran's lay statements that that his disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matter involved. Moreover, other than claiming these disorders due to various toxins and environmental exposures in the Persian Gulf, he has not offered any specific argument in favor of service connection. Competent evidence as to etiology has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND As to the right shoulder, review of the record indicates that a medical opinion is needed. Specifically, a February 2015 VA examiner opined that right shoulder tendonitis was not related to a specific exposure event in Southwest Asia but to repeated mechanical injury. At the January 2021 hearing, the Veteran testified to being an ammunition specialist in service and engaging in repeated heavy lifting both when deployed and during training and that these activities cause soreness in the shoulder. In addition, at the February 2015 VA examination, he reported intermittent right shoulder symptoms since service. As the examiner did not consider whether the current disorder was related to these in-service activities or address the Veteran's reports of pain in the years since service, a remand is needed for another opinion. The matter is REMANDED for the following actions: 1. Undertake appropriate development to obtain outstanding, relevant treatment notes. 2. Direct the claims file to a clinician to address the following: Is it at least as likely as not (50% probability or more) that the Veteran's right shoulder tendonitis is a result of in-service duties as described by the Veteran? The clinician is asked to consider the Veteran's reports of repeated heavy lifting in service both during deployment and training, as well as his description of intermittent pain in the right shoulder since service. The rationale for any opinion expressed must be provided. If the clinician is unable to provide the opinions requested, he or she should explain why. An examination need not be scheduled unless the clinician cannot answer the questions presented without one. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. M. Schaefer, 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.