Citation Nr: 21040067 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-43 330 DATE: July 2, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right ankle disability, including right ankle posterior tibial tendonitis, is denied. Entitlement to a separate 20 percent rating for right ankle instability is granted. Entitlement to service connection for Ehlers-Danlos syndrome and mast cell activation disorder, claimed as a low immune condition, is granted. Entitlement to service connection for lumbar degenerative disc disease, claimed as inflammation of the back and body, is granted. Entitlement to service connection for a right-hand disability, including trigger finger, inflammation of the tendons, arthritis, and carpal tunnel syndrome, is granted. Entitlement to service connection for a left-hand disability, including trigger finger, inflammation of the tendons, arthritis, and carpal tunnel syndrome, is granted. Entitlement to service connection for postural orthostatic tachycardia syndrome (POTS), claimed as low blood pressure, is granted. Entitlement to service connection for a sleep disorder, to include as secondary to inflammation of back and body, is denied. REMANDED Entitlement to a compensable rating for chronic bronchitis is remanded. Entitlement to service connection for chronic headaches is remanded. FINDINGS OF FACT 1. The Veteran's right ankle disability is characterized by moderate limitation of motion and moderate instability. 2. It is at least as likely as not that the Veteran's Ehlers-Danlos syndrome and mast cell activation disorder are etiologically related to her active duty service. 3. It is at least as likely as not that the Veteran's lumbar degenerative disc disease is etiologically related to her Ehlers-Danlos syndrome. 4. It is at least as likely as not that the Veteran's disabilities of the right and left hands are etiologically related to her Ehlers-Danlos syndrome. 5. It is at least as likely as not that the Veteran's low blood pressure condition is etiologically related to her Ehlers-Danlos syndrome. 6. The Veteran does not have a current diagnosis of a sleep disorder. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2020). 2. The criteria for entitlement to a separate 20 percent rating for right ankle instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2020). 3. The criteria for entitlement to service connection for Ehlers-Danlos syndrome and mast cell activation disorder have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.9 (2020). 4. The criteria for entitlement to service connection for lumbar degenerative disc disease have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020). 5. The criteria for entitlement to service connection for a right-hand disability have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020). 6. The criteria for entitlement to service connection for a left-hand disability have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020). 7. The criteria for entitlement to service connection for POTS have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020). 8. The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1988 to November 1991 and December 2007 to June 2008. She received the Training Ribbon, National Defense Service Medal, and Air Force Overseas Ribbon. This case comes before the Board on appeal of a June 2014 rating decision. The Veteran's appeal was previously before the Board in December 2018. The Board remanded the service connection claims for nexus opinions and remanded the increased rating claims for updated examinations. Increased Rating for a Right Ankle Disability During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a regulation changes during the course of an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date of the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the application of that regulation can be no earlier than the effective date of the amendment. Id. If the earlier version is more favorable, VA can apply it for the period prior to, and from, the effective date of the amendment. 38 U.S.C. § 5110. In the present appeal, there is no evidence dated on or after the effective date of the revised criteria and the Board cannot apply the revised criteria to a period that predates that criteria's effective date. Accordingly, the Board will evaluate the Veteran's claim under the earlier version of the criteria. The Veteran's right ankle disability has been evaluated as 10 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5271. Under DC 5271, a 10 percent rating is assigned for limited motion of the ankle that is moderate, and a 20 percent rating is assigned for limited motion of the ankle that is marked. Normal dorsiflexion of the ankle is to 20 degrees and normal plantar flexion of the ankle is to 45 degrees. See 38 C.F.R. § 4.71, Plate II. Turning to the evidence, the Veteran underwent a VA examination in May 2014 for her right ankle disability. See June 2014 VA Examination, pp. 21-32. The Veteran reported daily ankle pain, increased pain with standing, and the constant use of custom orthotics. On range of motion testing, the Veteran's plantar flexion was to 45 degrees and dorsiflexion to 10 degrees. The Veteran was able to perform repetitive-use testing with no loss of range of motion. The examiner noted that there was pain on motion, pain on weight bearing, and localized tenderness to the medial aspect of the right ankle. The examiner failed to provide an estimated range of motion during flare-ups or when the ankle is used repeatedly over time but noted that the Veteran experiences increased pain with extended standing. There was no ankylosis or joint instability at the time of the examination. The Veteran underwent a second VA examination in July 2016. See July 2016 VA Examination, pp. 1-15. The Veteran noted that her right ankle rolls easily but denied flare-ups. On range of motion testing, the Veteran had full dorsiflexion (20 degrees) and full plantar flexion (45 degrees). There was no pain noted on examination, no evidence of pain with weight bearing, and no evidence of crepitus. There was no loss of function or range of motion following repetitive-use testing, but the examiner did not estimate functional loss following repeated use over time. The Veteran exhibited right ankle instability on eversion/inversion but there was no ankylosis. In November 2019, the Veteran underwent another examination of her right ankle. See November 2019 VA Examination, pp. 1-10. The Veteran reported intermittent sharp pain and achy pain with prolonged standing and walking. She further noted that her ankle turned easily, and she had occasional flare-ups when she twisted her ankle. During flare-ups, the Veteran said it is painful to drive, she has a limp, and has a decreased tolerance for prolonged standing or walking. The examiner indicated there was no pain on passive range of motion testing or in non-weight bearing. On range of motion testing, the Veteran's dorsiflexion was to 15 degrees and her plantar flexion was to 40 degrees. The examiner indicated that neither pain, weakness, fatigability nor incoordination significantly limited functional ability with repeated use over time. However, the examiner opined that pain significantly limited functional ability during a flare-up and that the Veteran's dorsiflexion was be limited to 15 degrees and plantar flexion to 40 degrees. The examiner observed moderate talar tilt laxity in the right ankle but no ankylosis. The Veteran reported regular use of a brace. Treatment records and the Veteran's reports show that she complained of right ankle pain and she exhibited laxity and pronation as early as 2011. See June 2016 CAPRI, p. 90; August 2017 CAPRI, p. 28; December 2019 CAPRI, pp. 284, 477; March 2020 CAPRI, p. 26. The Board finds that the evidence preponderates against a finding of entitlement to a rating in excess of 10 percent for a right ankle disability. To warrant a higher rating, the evidence must demonstrate marked limited motion of the ankle. The evidence does not show that the Veteran's right ankle disability has resulted in marked limitation of motion. Instead, the evidence shows that the Veteran's condition has resulted in dorsiflexion limited to 10 degrees, at its worst, and plantar flexion limited to 40 degrees. The Board finds that this constitutes moderate limitation of motion of the right ankle and this level of impairment is contemplated by the current 10 percent rating. Thus, a rating in excess of 10 percent is not warranted. However, the Board finds that a separate rating for right ankle instability is warranted. The evidence shows that the Veteran's right ankle disability causes moderate instability or laxity in addition to limitation of motion. Separate ratings may be assigned for distinct disabilities from the same injury if the symptomatology for the conditions is not duplicative or overlapping; however, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); 38 C.F.R. § 4.14. DC 5271 evaluates limited motion of the ankle but does not contemplate instability or laxity. Therefore, a rating under DC 5271 does not preclude a separate additional rating for ankle instability or laxity. See Esteban v. Brown, 6 Vet. App. 259 (1994). The diagnostic codes relating to the ankle do not contain an appropriate diagnostic code to account for instability or laxity. The Board finds it appropriate to rate this manifestation by analogy using DC 5262 which is used to rate impairment of the tibia and fibula and contemplates corresponding disability of the knee or ankle. See 38 C.F.R. § 4.71a, DC 5262. Under the former criteria for DC 5262, a 20 percent rating is assigned for malunion of the tibia and fibula with a moderate knee or ankle disability. The evidence shows that the Veteran's right ankle instability is of a moderate severity and the Board finds that this manifestation most closely approximates the picture contemplated by the 20 percent rating under DC 5262. Accordingly, a separate rating of 20 percent, and no higher, for right ankle instability is warranted. Service Connection for Ehlers-Danlos Syndrome and Mast Cell Activation Disorder Direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Direct service connection generally requires credible and competent evidence showing: (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 or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The evidence shows that the Veteran has a current disability. Specifically, the Veteran has been diagnosed with Ehlers-Danlos syndrome with mast cell activation disorder. See July 2020 Private Treatment Records, p. 2. The evidence of record shows that the Veteran's disability is a congenital disease (as opposed to congenital defect). See December 2014 Private Treatment Records, pp. 47, 49; July 2020 Private Treatment Records, p. 2. Congenital diseases constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9; O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009); VAOPGCPREC 67-90 (July 18, 1990) (noting that diseases of hereditary origin can be incurred or aggravated in service if their symptomatology did not manifest itself until after entry on duty). Accordingly, the Veteran has a disability for VA compensation purposes and the first element of service connection is established. See Holton, 557 F.3d at 1366. The Veteran has also presented sufficient evidence to establish the second element of service connection. The Veteran was deployed to Southwest Asia and her post-deployment health assessment shows that she experienced a number of health issues during her deployment and was seen in sick call four times. See July 2016 STR, pp. 17-21. The Veteran's private treatment records establish that Ehlers-Danlos syndrome is congenital in nature and therefore clearly and unmistakably preexisted her service. See December 2014 Private Treatment Records, pp. 47, 49; July 2020 Private Treatment Records, p. 2. However, there is not clear and unmistakable evidence that the Veteran's disability was not permanently aggravated by her active duty service. See July 2020 Private Treatment Records, p. 2; December 2019 VA Examination, p. 4. As such, the presumption of soundness attaches, and the Board finds that there is sufficient evidence to establish the occurrence of an in-service injury. See 38 C.F.R. § 3.304(b). Accordingly, the second element of service connection is established. See Holton, 557 F.3d at 1366. Regarding nexus, the evidence is at least in equipoise. The Veteran submitted an opinion from a non-VA clinician which opined that the Veteran's active duty service aggravated many of the conditions resulting from her Ehlers-Danlos syndrome. See July 2020 Private Treatment Records, p. 2. The examiner explained that physical activity and stress involved in military training and performance would aggravate the Veteran's mast cell activation disorder because of the imbalance of the autonomic nervous system toward a flight-or-fight response. The opinion is provided by a physician that specializes in genetic disorders, including the Veteran's rare disorder, see May 2016 Private Treatment Records, pp. 1-4, and is based on the facts as demonstrated by the record. Thus, the Board finds the opinion to be probative. The evidence regarding nexus is at least in equipoise and the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In resolving all reasonable doubt in the Veteran's favor, the Board finds that the third element of service connection is established. See Holton, 557 F.3d at 1366. Thus, service connection for Ehlers-Danlos syndrome and mast cell activation disorder, claimed as low immune condition, is warranted. Service Connection for Lumbar Degenerative Disc Disease Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran has submitted evidence of a current disability. Specifically, the Veteran has submitted evidence of a diagnosis of lumbar degenerative disc disease and arthropathy. See September 2016 VA Examination, pp. 1-2; September 2016 VA Examination, pp. 1-2; August 2013 Private Treatment Records, pp. 4-6. As explained above, the Veteran is now service connected for Ehlers-Danlos syndrome. Accordingly, the Board finds that the first and second elements of secondary service connection are established. See Wallin, 11 Vet. App. at 512. Regarding the third element of nexus, the most competent medical evidence establishes that the Veteran's arthritis and back pain are complications of her Ehlers-Danlos syndrome. The evidence shows that Ehlers-Danlos syndrome causes joint pain, including back pain, joint hypermobility, and susceptibility to osteoarthritis. See July 2020 Private Treatment Records, p. 2; December 2014 Private Treatment Records, pp. 49, 51, 53. As there is no evidence suggesting otherwise, the Board finds that the evidence regarding nexus is at least in equipoise. When the evidence for and against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. In resolving all reasonable doubt in the Veteran's favor, the Board finds that the third element of secondary service connection is established. See Wallin, 11 Vet. App. at 512. Thus, service connection for lumbar degenerative disc disease, claimed as inflammation of the back and body, is warranted. Service Connection for Disabilities of the Right and Left Hands The Veteran has submitted evidence of a current disability as she has been treated for recurrent intermittent trigger finger and further reports flare-ups of bilateral hand pain. See September 2016 VA Examination, pp. 1-2; August 2013 Private Treatment Records, p. 6. The Veteran is also service connected for Ehlers-Danlos syndrome. Accordingly, the Board finds that the first and second elements of secondary service connection are established. See Wallin, 11 Vet. App. at 512. The Board finds that the evidence regarding nexus is at least in equipoise. The September 2016 VA examiner opined that the Veteran's hand disabilities are likely related to her Ehlers-Danlos syndrome. See September 2016 VA Examination, p. 3. This opinion is consistent with the other evidence provided by the Veteran that shows that Ehlers-Danlos syndrome affects her connective tissue and causes joint pain. See December 2014 Private Treatment Records, p. 53. As there is no opinion to the contrary, the evidence regarding nexus is at least in equipoise. When the evidence for and against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. In resolving all reasonable doubt in the Veteran's favor, the Board finds that the third element of secondary service connection is established. See Wallin, 11 Vet. App. at 512. Thus, service connection for disabilities of the right and left hands are warranted. Service Connection for Postural Orthostatic Tachycardia Syndrome The Veteran has submitted evidence of a current disability that is characterized by low blood pressure. Specifically, the Veteran has been diagnosed with postural orthostatic tachycardia syndrome (POTS) which results in dizziness on standing, sleep disturbances, fatigue, and low blood pressure. See July 2020 Private Treatment Records, p. 2. As explained above, the Veteran is now service connected for Ehlers-Danlos syndrome. Accordingly, the Board finds that the first and second elements of secondary service connection are established. See Wallin, 11 Vet. App. at 512. Regarding the third element of nexus, the most competent medical evidence shows that the Veteran's POTS is a complication of her Ehlers-Danlos syndrome. The evidence explains that Ehlers-Danlos syndrome is characterized by dysautonomia which presents as POTS in the Veteran's case. See July 2020 Private Treatment Records, p. 2; December 2014 Private Treatment Records, pp. 49, 51, 53. As there is no evidence suggesting otherwise, the Board finds that the evidence regarding nexus is at least in equipoise. When the evidence for and against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. In resolving all reasonable doubt in the Veteran's favor, the Board finds that the third element of secondary service connection is established. See Wallin, 11 Vet. App. at 512. Thus, service connection for POTS, claimed as low blood pressure, is warranted. Service Connection for a Sleep Disorder The Veteran has not submitted any evidence that she has a separate diagnosed sleep disorder. The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Since the Veteran filed her claim in July 2013, the most competent and credible evidence shows that she experiences sleep disturbances as a result of her service-connected other specified trauma or stressor-related disorder and her now-service connected POTS. See October 2016 VA Examination, pp. 1-4; December 2019 VA Examination, pp. 2, 5; July 2020 Private Treatment Records, p. 2. There is no other evidence of a distinct sleep disorder. In light of the absence of any evidence of a disability, the Board finds that the Veteran does not have a current disability and the first element of service connection has not been established. See Holton, 557 F.3d at 1366. In the absence of a current disability, the evidence preponderates against the claim and there is no reasonable doubt to be resolved. Accordingly, service connection for a sleep disorder must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS FOR REMAND Increased Rating for Chronic Bronchitis The Board previously remanded the Veteran's claim for an updated examination; however, the Agency of Original Jurisdiction (AOJ) did not schedule the Veteran for the requested examination. Because the AOJ did not substantially comply with the Board's directive, the claim must be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a Board remand confers on a claimant the right to compliance with the remand orders). Service Connection for Headaches The Veteran's claim for service connection for headaches was previously remanded for nexus opinion on direct service connection. In December 2019, a VA clinician offered a negative nexus opinion based on the absence of evidence showing a chronic disabling medical diagnosis starting on active duty. See December 2019 VA Examination, p. 2. However, the examiner's opinion does not adequately consider the Veteran's reported and noted headaches and head injuries in service. See October 2016 STR, pp. 59, 81; November 2019 Military Personnel Records, p. 5. Moreover, in July 2020 correspondence, the Veteran pointed out that some of her medical records are missing, including records related to a 1991 assault by her spouse which resulted in a skull fracture and concussion. See July 2020 Correspondence, p. 3. Accordingly, on remand, the Agency of Original Jurisdiction should take appropriate steps to obtain the outstanding service records and a new opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The matters are REMANDED for the following action: 1. Undertake all appropriate action to identify and obtain any outstanding service treatment records, including those related to treatment rendered in August 1991 at Landstuhl Army Medical Hospital. All efforts to obtain the records should be recorded, and a memorandum of any formal findings should be prepared and associated with the claims file. 2. Schedule the Veteran for an examination to ascertain the severity of her chronic bronchitis. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, including the pulmonary function test. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion. The examiner should describe all symptomatology due to the Veteran's service-connected disability. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. After any outstanding service treatment records have been associated with the claims file, obtain a VA opinion on the etiology of the Veteran's headache disability. If deemed necessary by the examiner, schedule the Veteran for an examination. All indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran's documented medical history and assertions. The examiner should offer comments, an opinion and a supporting rationale that addresses: (a.) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's headache disability was incurred in, aggravated by, or is otherwise etiologically related to her active duty service. In providing this opinion, the examiner must consider the Veteran's in-service complaints of head pain, including the August 1991 assault by her spouse, as well as her exposure to environmental hazards in Southwest Asia. See October 2016 STR, pp. 59, 81; November 2019 Military Personnel Records, p. 5; July 2020 Correspondence, p. 3; July 2016 STR, pp. 17-21. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 4. Thereafter, readjudicate the claims on appeal. Idongesit T. Umo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W.V. Walker, 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.