Citation Nr: 21039944 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 15-44 838 DATE: July 1, 2021 ORDER Service connection for a left ankle disorder is denied. Service connection for a right ankle disorder is denied. Service connection for a cervical spine disorder, diagnosed as degenerative arthritis and degenerative disc disease of the cervical spine (DDD), is granted. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran does not have a current disability associated with the left or right ankle. 3. There are no objective indications of chronic undiagnosed disability associated with the left or right ankle that manifested during service or to a degree of 10 percent or more following service. 4. The Veteran has a current disability of degenerative arthritis and DDD of the cervical spine. 5. Symptoms of the cervical arthritis were continuous after service separation. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle disorder have not been met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 2. The criteria for service connection for a right ankle disorder have not been met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for the cervical spine degenerative arthritis and DDD have been met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1992 to November 1996, October 2001 to March 2002, January 2003 to May 2004, and January 2007 to June 2008. This matter is on appeal from a May 2013 rating decision issued by the Regional Office (RO). The Veteran testified in Phoenix, Arizona, at a Board videoconference hearing in April 2019. The hearing transcript has been associated with the record. The judge who held that hearing is no longer at the Board. These matters were previously before the Board in October 2019. The Board remanded all three issues. The Board remanded the ankle disorder issues to obtain a VA examination and direct service connection opinion, emphasizing that the VA examiner should discuss whether there are objective indications of chronic disability. The Board also remanded the neck disorder issue to obtain a VA examination and direct service connection opinion, and emphasized that the VA examiner should discuss whether the neck disorder is related to an in-service IED explosion in November 2003. A VA examination was conducted in January 2021 and a supplemental statement of the case was issued in January 2021. An April 2021 letter advised the Veteran that the judge who held the April 2019 is no longer with the Board and that he may request a new hearing before another judge. The Veteran was advised that he must return the attached hearing selection form within 30 days or the Board would presume he does not want a new hearing. To date the Veteran has not returned the hearing selection form or provided written notice requesting another hearing; therefore, the Board may proceed in deciding the matter on appeal. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See Allen v. Brown, 7 Vet. App. 439 (1995). The Federal Circuit recently held, however, that the term "disability" as used in 38 U.S.C. § 1110 and § 1131 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." Saunders v. Wilkie, 886 F.3d, 1356, 1368 (Fed. Cir. 2018). Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Laypersons are competent to report objective non-medical indicators of disability. The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). Military personnel records show the Veteran served in Southwest Asia from October 1990 to July 1991; therefore, the Veteran is a "Persian Gulf veteran" (i.e., had active military service in the Southwest Asian Theater of operations during the Gulf War) as defined by 38 C.F.R. § 3.317. A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders that include IBS and dyspepsia) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). 1. Service Connection for a Left Ankle Disorder 2. Service Connection for a Right Ankle Disorder The Veteran contends that the claimed left and right ankle disorders are related to in-service injuries that occurred in December 1993 (right ankle) and November 2007 (left ankle). The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. See Form DD 214. After review of the evidence, the Board finds that the Veteran does not have a current disability associated with the left or right ankle, either by diagnosis or by functional impairment. The Board notes that the record is sparse; however, VA and private treatment records indicate that the Veteran does not have a current disability in the left or right ankle for the entire period on appeal. In the February 2013 VA examination, the VA examiner assessed that the Veteran did not have a diagnosed ankle disability. In the January 2021 VA examination, the VA examiner assessed that the in-service ankle sprains have resolved. As the weight of the evidence shows no current ankle disability of either ankle, either by diagnosis or by functional impairment, the weight of the evidence is against a theory of direct service connection. With regard to presumptive service connection for a qualifying chronic disability as a Persian Gulf veteran, the weight of the evidence is against finding that there are objective indications of chronic undiagnosed disability associated with the left or right ankle that either manifested during service or to a degree of 10 percent or more following service. See February 2013 VA Treatment Records (The VA examiner found that both ankles had full range of motion without pain, that the joints are stable, and there is full strength in both ankles); February 2013 VA Examination (The VA examiner found that the Veteran did not have a current bilateral ankle diagnosis, noting full range of motion, normal muscle strength, and normal stability); January 2021 VA Examination (The VA examiner found that the Veteran did not have a current bilateral ankle diagnosis, noting full range of motion, normal muscle strength, and normal stability). In this case, the medical and lay evidence does not show that the reported pain in the left or right ankle causes functional impairment to be considered a disability. No impairment of normal functioning or reduction in earning capacity due to muscle or joint pain in the left or right ankle has been shown at any time during these claims. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that, to establish the presence of a disability, the evidence will need to show that the pain reaches the level of functional impairment of earning capacity). For these reasons, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claims for service connection for the claimed left and right ankle disorders; therefore, the claims under all service connection theories must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service Connection for a Cervical Spine Disorder The Veteran contends that the November 2003 in-service head injury, which involved an improvised explosive device (IED) and resulted in the service-connected traumatic brain injury (TBI), caused the claimed cervical spine disorder. After a review of the evidence, the Board finds that the Veteran has a current disability of degenerative arthritis and DDD of the cervical spine. See February 2013 VA Examination (DDD of the cervical spine); January 2021 VA Examination (degenerative arthritis of the cervical spine). The evidence is at least in equipoise on the question of whether symptoms of the cervical arthritis were continuous after service separation in June 2008. The record contains both medical and lay evidence that indicates that the Veteran experienced continuous arthritis symptoms in the cervical spine since service separation in June 2008. See generally, April 2009 Private Treatment Records, June 2009 Private Treatment Records, September 2009 Private Treatment Records, April 2010 Private Treatment Records, June 2010 Private Treatment Records, October 2010 Private Treatment Records, December 2010 Private Treatment Records, January 2011 Private Treatment Records, March 2011 Private Treatment Records, July 2011 Private Treatment Records, September 2011 Private Treatment Records, December 2011 Private Treatment Records, February 2012 Private Treatment Records, May 2012 Private Treatment Records, July 2012 Private Treatment Records, September 2012 Private Treatment Records, October 2012 Private Treatment Records, January 2013 Private Treatment Records, February 2013 Private Treatment Records, June 2013 Private Treatment Records, August 2013 Private Treatment Records, April 2014 Private Treatment Records, June 2014 Private Treatment Records, August 2014 Private Treatment Records, October 2014 Private Treatment Records, December 2014 Private Treatment Records, March 2015 Private Treatment Records, June 2015 Private Treatment Records, September 2015 Private Treatment Records, December 2015 Private Treatment Records, April 2016 Private Treatment Records, September 2016 Private Treatment Records, April 2019 Transcript, January 2021 VA Examination. As such, the Board resolves reasonable doubt to find that arthritis symptoms in the cervical spine were continuous after service separation. The Veteran submitted to VA examinations in February 2013 and January 2021. The VA examiner rendered negative medical opinions regarding the cervical spine on the bases of direct service connection. The opinions pertain only to the theories of direct service connection, so are not probative in determining presumptive service connection based on the continuity of symptomatology (38 C.F.R. § 3.303(b)) of arthritis in the cervical spine since service separation. As presumptive service connection is being granted based continuous symptoms since service separation under 38 C.F.R. § 3.303(b), there is no need to discuss entitlement to service connection on any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.