Citation Nr: 21031248 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 12-17 170 DATE: May 21, 2021 ORDER Entitlement to service connection for ankle pain, to include an undiagnosed illness due to Gulf War service and exposure therein, is denied. FINDING OF FACT The Veteran's current ankle pain is not shown to be causally or etiologically related to any disease, injury, or incident in service, to include an undiagnosed illness or medically unexplained chronic multi-symptom illness as a result of Persian Gulf War service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral ankle condition have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training with the United States Army from March 1986 to June 1986, and on active duty with the United States Air Force from August 1989 to April 1992, to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran originally filed a claim for service connection of joint and musculoskeletal pain as a result of an undiagnosed illness or his service in the Persian Gulf War. The claim has been recharacterized several times and remanded in June 2014, April 2015, July 2017, April 2018, and June 2020. In April 2018, the Board recharacterized the claim to include bilateral ankle pain and remanded the issue for a VA examination. The Veteran failed to report for his examination and his claim was denied in a subsequent Supplemental Statement of the Case (SSOC). In June 2020, the Board again remanded the claim for service connection to provide the Veteran a VA examination for his ankle condition. As such, the current issue before the Board is whether an ankle condition, claimed as joint pain due to an undiagnosed illness attributable to service in the Gulf War, is related to his active duty military service. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board's 2020 remand directed the RO provide the Veteran with an in-person examination to determine all diagnosable ankle conditions, which was provided in March 2021. As such, substantial compliance has been achieved and the merits of the claim are discussed below. Id. at 271. Service Connection 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). VA has established certain rules and presumptions for chronic diseases such as arthritis. See 38C.F.R. §§ 3.303 (b), 3.307, 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303 (b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309 (a). 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 medically unexplained chronic multisymptom illness (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). Objective indications of a qualifying chronic disability include both signs and symptoms, in the medical sense of objective evidence perceptible to an examining physician, and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). 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). 1. Entitlement to service connection for bilateral ankle condition The Veteran contends he is entitled to service connection for bilateral ankle pain resulting from his military service. Specifically, he asserts his pain is due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117. A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. In this case, a May 1989 enlistment examination notes the Veteran had a fractured left ankle in 1980 with "full recovery, no sequela." See STR, 11/29/2008, pg 8. However, later information called into question this notation. The Board therefore remanded the claim most recently to determine whether there was clear and unmistakable evidence of the preexisting disability. The March 2021 VA examiner reviewed the service treatment records and concluded that there was no preexisting condition. Specifically, the examiner noted that there is no evidence of healed left ankle fracture on recent x-ray imaging. Additionally, the Veteran's entrance physical cites the injury as "broken bones near shin area" and therefore, the injury was more likely proximal to the shin rather than the ankle. Further, the Veteran denied a medical history of fractured or injury on physical examination. Additionally, X-rays taken in March 1997 of the feet and ankles did not reveal fracture or dislocation and no significant arthritic changes were found. The examiner concluded the Veteran did not have an ankle condition or injury prior to service, therefore no aggravation beyond natural progression exists. Accordingly, the Board finds that a left ankle disability did not preexist service, and the Veteran is entitled to the presumption of soundness. In his May 2010 Notice of Disagreement, the Veteran contended that he felt symptoms of constant joint pain ranging from mild to severe after returning from the Gulf War. The Veteran's military personnel record confirms he had active service in Operations Desert Shield and Storm in Saudi Arabia from October 1990 to March 1991 and September 1991 to December 1991. Therefore, he has qualifying service subject to presumptive service connection for Veterans of the Persian Gulf War. 38 C.F.R. § 3.317(e). The Veteran has been provided several VA examinations in relation to his claim for joint pain. He received VA Gulf War examinations in March 1997, January 2010, and November 2015, with addendum opinions provided in April 2010 and September 2014. The Veteran received several VA examinations in November 2015 in relation to his joint pain, including the hips, hands, elbows, shoulders, knees, neck, and fibromyalgia. (Notably, prior Board decisions have addressed all other joints apart from the ankles.) Addendum VA opinions were obtained in August 2017 and June 2019 and the Veteran was provided an ankle examination in March 2021. Upon review of the medical evidence, the Board finds the Veteran does not have an ankle condition subject to presumptive service connection. The Board acknowledges the Veteran's claims for Gulf War Syndrome and fibromyalgia have been denied and he has received other diagnoses for separate joints. The Veteran's 2009 VA examination also reveals no widespread tenderness or pain of the muscle or joints; any tenderness noted was attributable to a specific diagnosis of that joint. The examiner notes the Veteran has been provided diagnoses connected to joint pain, particularly osteoarthritis and degenerative disc disease, and diagnostic imaging supports these conclusions. A November 2015 VA examiner also concludes the Veteran does not have any conditions that are undiagnosable, but rather he has conditions with clear and specific etiology. He opines there is no undiagnosed condition or multi-symptom illness undiagnosed or diagnosed that would be at least as likely as not secondary to specific exposure experienced by the Veteran during service in Southwest Asia. A September 2014 opinion also concludes the Veteran does not have "clear conditions in the undiagnosed illness category related to his pain." The Veteran's March 2021 examiner opined his ankle pain is less likely than not caused by an undiagnosed illness or a medically unexplained chronic multi-symptom illness resulting from service in the Persian Gulf. He reasons the Veteran's symptoms are due to separate conditions of the hip and knee and are exacerbated by unrelated tendon tightness, as discussed below. The examiner specifically found that there were no objective signs of a disability. The Veteran's service treatment record reveals a complaint of right foot pain in 1989. However, the August 2017 examiner explains the pain was the result of ill-fitting shoes and Tylenol was provided for treatment. No further complaints of ankle or foot pain are found in service and thus, the issue resolved with no chronicity of symptoms. At his March 1997 Gulf War examination, the Veteran indicated "vague musculoskeletal pain" for several years. X-ray imaging was taken and normal results were found. A neurological examination was also conducted which yielded normal results Additionally, the August 2017 fibromyalgia examiner notes the Veteran was examined in March 1997 with normal results and no indication of tenderness or pain on physical exam. The Veteran later reported symptoms of ankle pain in April 2008 but was noted to have an onset of one week. He was found to have minimal swelling and pain with no bruising and was instructed to follow up if symptoms did not improve. There is no indication the Veteran followed up with ankle pain and there is no further notation of symptoms in his private treatment record. The Board finds the VA opinions highly probative as they are consistent with the remainder of the medical record, were conducted following examination of the Veteran, and were made by several specialized medical professionals with consideration of the specific facts in this case. As there is no diagnosis, the Veteran's signs and symptoms cannot be considered a MUCMI. See 38 C.F.R. § 3.317(a)(2)(ii). Further, diagnostic imaging of the ankles taken in January 2021 revealed normal results with no findings of arthritis. As arthritis has not been shown to be present during service or within a year of separation, service connection for a chronic condition is not presumed. 38 C.F.R. § 3.309(a). Although the Board does not find presumptive service connection is warranted for the Veteran's ankle condition, service connection may still be granted under a direct theory of entitlement. However, the Board finds that the Veteran does not have an ankle disability for VA purposes and therefore direct service connection is note warranted. Of particular note, in some instances, pain alone can qualify as a disability for VA purposes; however, to do so, it must amount to a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). The Veteran's March 2021 examiner opined the Veteran's ankle pain is less likely than not incurred in, caused by, or otherwise related to his service. The examiner notes the medical record does not support a finding the Veteran's subjective complaints result in a condition. He relies on a lack of past injury and current objective evidence, normal diagnostic imaging results, and a lack of treatment for an ankle condition. The examination report notes physical exam of the ankles was non-specific and X-rays revealed normal results with no signs of arthritis. A reviewing radiologist indicates no fractures, suspicious bone lesion, effusion, or acute findings. Rather, he finds alignment and mortise is normal with unremarkable soft tissues. The Veteran reports flare-ups every two months for an hour, such that he is unable to carry more than 10 pounds. However, the examiner notes there are no clinical findings to support this limitation and concludes there is no overall functional impact. He reports having a limitation of 20 minutes for walking, otherwise it becomes too difficult and he begins to move very slowly. The examiner explains that the Veteran's limitation is instead due to his knee and hip pain because he experiences an onset of knee and hip pain which is then followed by the ankle pain. The Veteran reports mild generalized pain in the ankles, described as a "ring around the ankles." The examiner explains this does not fit any physiologic pattern for an ankle injury. The examination report indicates the Veteran's subjective tenderness to the malleolus during the exam has no relationship to the Veteran's alleged condition. The examiner notes the Veteran has tight Achilles tendons that limit his range of motion (ROM) but concludes this is likely due to a sedentary lifestyle and occupation. He indicates the Veteran self-limits his ROM but the examiner was able to achieve higher range in all directions with increased pressure. The Veteran's passive ROM results were better than active, but the examiner noted he could have achieved normal ROM if he applied more pressure. He indicates the Veteran's pain noted upon examination is specifically attributable to his tight Achilles tendons. The examiner ultimately declines to provide any diagnosis for the ankles. Rather, he attributes the Veteran's subjective symptoms to separate conditions of the hip, knee, and Achilles tendon. The Board finds the March 2021 opinion highly probative in conjunction with the several VA opinions of record. The examiner relies on the Veteran's lay statements and description of his symptoms, medical history, service treatment records, and current diagnostic testing. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The examiner addresses several theories of entitlement and provides a full rationale with clear conclusions. The report indicates a full review of the Veteran's record and the opinions include relevant facts and contentions. Further, the March 2021 examiner is a physiatrist who has special knowledge of conditions of the musculoskeletal system, and thus the opinion is highly probative. The Board acknowledges the Veteran's contentions and notes he is competent to report observable symptoms and experiences, however he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. Thorough review of the medical evidence does not reveal an ankle disability for VA purposes. As no contrary medical opinion or significant competent and credible evidence is of record, the Board gives the cumulative VA examinations significant probative weight. Therefore, the preponderance of the evidence weighs against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The claim for service connection must be denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.N. Chapman, 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.