Citation Nr: 22018293 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-28 583 DATE: March 28, 2022 ORDER 1. Entitlement to service connection for a right ankle disability is denied. 2. Entitlement to service connection for a left ankle disability is denied. REMANDED 3. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. 4. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. 5. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. FINDINGS OF FACT 1. The evidence persuasively weighs against a finding that the Veteran has a current right ankle disability during the appeal period or proximate thereto, to include symptoms that caused functional impairment that affects earning capacity. 2. The evidence persuasively weighs against a finding that the Veteran has a current left ankle disability during the appeal period or proximate thereto, to include symptoms that caused functional impairment that affects earning capacity. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1987 to December 1987, February 1991 to May 1991, and from May 2002 to June 2003 with additional National Guard service. In March 2021, the Veteran provided testimony in a virtual Board hearing before undersigned Veterans Law Judge (VLJ). In July 2021, the Board remanded the claims for further development. There was substantial compliance with the Board's remand directives to decide the service connection claims for bilateral ankle disabilities on appeal at the present time. See Stegall v. West, 11 Vet. App. 268 (1998). However, additional development is necessary to decide the remaining issues on appeal, which is explained below. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (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. 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. 38 C.F.R. § 3.303(d). 1. & 2. Entitlement to service connection for (1) a right ankle disability and (2) a left ankle disability. The Veteran asserts that service connection for right ankle and left ankle disabilities are warranted because they were incurred in or otherwise a result of service. During the March 2021 Board hearing, the Veteran testified that he made over 150 parachute jumps in service and was constantly ruck marching and training. He reported that the problems with his ankles were "sporadic every now and then something clicks in it," after a day or two of lumping around he would be "good again." The Board has carefully reviewed the evidence of record and finds that the persuasive weight of the evidence is against a finding that the Veteran has either a current right or left ankle disability during the appeal period. Therefore, service connection is not warranted for the claimed bilateral ankle disabilities. The Veteran was provided a VA examination for his claimed ankle disabilities in May 2015. The examiner found that the Veteran did not have a current diagnosis of either ankle. The examiner considered the Veteran's report during the examination that he has intermittent locking of his bilateral ankle, most often his right ankle. The Veteran indicated that he was not being treated for his ankle symptoms. This is consistent with his testimony during the March 2021 Board hearing. The May 2015 examiner indicated that the Veteran did not report flare-ups that impact the function of the ankles nor functional loss or functional impairment of the ankles regardless of repetitive use. Objective findings revealed a normal range of motion, bilaterally, ability to perform repetitive use testing with at least three repetitions, bilaterally, normal muscle strength, no ankylosis, and no instability or dislocation of either ankle. The examiner found that regardless of the Veteran's current employment status, there was no functional impact on his ability to perform any type of occupational task, such as standing, walking, lifting, etc. The examiner also provided the opinion that the claimed left ankle condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. She indicated that that a review of records show a notation of a left ankle injury in 1990 but there was no other medical evidence showing chronicity of the left ankle after 1990. The examiner added that there was no objective evidence showing chronicity of the left ankle as there had been no complaints of treatment of the left ankle. For the right ankle, the examiner provided the opinion that it was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. She noted that there was a sprained right ankle with a normal x-ray in 1991 but chronicity of the right ankle condition could not be established since there is no medical evidence of a right ankle condition since 1991. Specifically, she noted that physical examination in 2001 documented, "recovered from sprained right ankle 1991." Thus, she concluded there is no current objective evidence of chronic right ankle condition. The findings within the May 2015 are consistent with October 2014, November 2014, February 2015 and April 2015 private examinations by Dr. William A. Justiz. In the October 2014 examination report, Dr. Justiz documented that the Veteran's dorsiflexion strength of the ankles was normal. Within the November 2014 examination report, Dr. Justiz found no lower extremity weakness and that the Veteran had 5/5 muscle strength with dorsiflexor and plantar flexor of the ankle. When performing physical examinations in February 2015 and April 2015, Dr. Justiz documented that there was no weakness of the right and left ankles on dorsiflexion or plantar flexion. The Board is aware of the holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the U.S. Court of Appeals for the Federal Circuit explained that where pain alone results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. The Veteran does not contend that that he has experienced functional impairment affecting his earning capacity related to either the left and/or right ankle, and the evidence of record does not show that the Veteran has had such functional impairment. The March 2015 VA examiner found no functional impact on the Veteran's ability to perform any type of occupational task. The Veteran indicated that he was not seeking specific treatment but rather "just go to a regular doctor" and "suck it up... learned to live with everything." See March 2021 Board hearing transcript. The Veteran has also proffered an opinion from Dr. Mark Shoag, who wrote the following: Given that the Veteran was subjected to at least one hundred parachuting jumps, rode in a helicopter for each one of said jumps and that there is a very clear causal connection between parachuting jumps as well as whole body vibration to degenerative conditions within each bodily area that the Veteran now suffers from, it is at least as likely as not that the Veteran's degenerative conditions is therefore, service-connected. Dr. Shoag has noted several disabilities included in the Veteran's medical history, however, he did not include a disability of either the right or left ankles. He indicated that he obtained a history of present illness via a telemedicine system in March 2021, where the Veteran was in attendance and his responses to his questions appeared truthful. Dr. Shoag, stated that he "took issue" to the opinion of the March 2015 examiner for the "simple reason that the examiner clearly did not consider the Veteran's service history," which included being in a helicopter for the duration of his service and accumulating over 100 jumps while in service. He stated that the examiner's opinion, "frankly, failed to see the forest through the trees." The Board finds Dr. Shoag's opinion of diminished probative value with regard to the claimed bilateral ankle disabilities, as the opinion provides only a causal relationship of the Veteran's "degenerative conditions" and service and does not provide evidence of a right or left ankle disability. Dr. Shoag did not provide an in-person physical examination of the Veteran's ankles, while the March 2015 VA examiner provided an objective in-person examination. In the VA examiner's report, she indicated that imaging studies of the ankle have been performed and the results were available, but there was no degenerative or traumatic arthritis documented nor any other significant diagnostic test findings or results. In February 2022 correspondence, the Veteran's representative argued that Dr. Shoag's opinion on service connection for the ankle is sound, well researched, and based on his interview with the Veteran and the records available at the time. He stated that "current diagnoses for these conditions could easily have been obtained via an addendum or new nexus opinion from a VA examiner." Thus, the Veteran's representative is not asserting that Dr. Shoag has provided a diagnosis of either a right or left ankle disability. The representative also argues that VA did not adequately comply with the Board remand instructions and a VA medical examination would have "most definitely provided both the diagnosis and nexus." As mentioned above, the Board finds Dr. Shoag's opinion is of limited probative value as to the Veteran's claimed bilateral ankle disabilities as a causal connection between service and a current left or right ankle disability was not proffered by Dr. Shoag The Veteran's representative maintains that a new VA examination would provide a diagnosis and nexus, however, a new VA examination is not warranted. Since the March 2015 VA examination, particularly since the July 2021 Board remand, the Veteran has not proffered competent evidence of a current bilateral disability, to include pain that causes functional impairment of earning capacity. VA has met its duty to assist in providing the Veteran with an adequate examination in March 2015 and requesting medical records pursuant to the remand directives, although such records were unavailable. Therefore, entitlement to a new VA examination is not warranted. The persuasive weight of the evidence currently in the file is against a finding of a current left and/or right ankle disabilities, to include symptoms that cause functional impairment of earning capacity. In the absence of a showing of functional impairment of earning capacity involving the right and left ankles or a current right ankle and/or left ankle disability, service connection is not warranted. As the evidence persuasively weighs against the claim of service connection for a left ankle disability and a right ankle disability, the benefit-of-the-doubt doctrine is not for application, and the claims are denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102. REASONS FOR REMAND 3. Entitlement to service connection for peripheral neuropathy of the right upper extremity. 4. Entitlement to service connection for peripheral neuropathy of the right lower extremity. 5. Entitlement to service connection for peripheral neuropathy of the left lower extremity. During the March 2021 Board hearing, the Veteran testified that he still had peripheral neuropathy in his lower legs stemming from his back. He also reported that he had more issues in his upper extremities than his lower extremities, but that it was "definitely noticeable" in his lower extremities. The Veteran was afforded a VA examination of the peripheral nerves in March 2015, however, the examiner found no objective evidence or clinical evidence of peripheral neuropathy in his upper or lower extremities. In the March 2021 private opinion from Dr. Shoag, bilateral [lower] and upper extremity neuropathies were included as disabilities in the Veteran's medical history. As the Veteran is now in receipt of service connection for degenerative disc disease of the cervical spine and a lumbar strain, the Board finds that a remand is necessary for a new VA examination to confirm whether the Veteran has diagnoses of upper right extremity and/or bilateral lower extremity peripheral neuropathy / radiculopathy. The matters are REMANDED for the following action: Schedule the Veteran for a VA neurological examination by an appropriate clinician to evaluate whether the Veteran has a diagnosed neurological disorder (or functional impairment) of the right upper extremity and bilateral lower extremities and whether it is caused or aggravated by the service-connected cervical spine and/or lumbar spine disabilities. The examiner should perform all appropriate testing as deemed necessary. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cheng, 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.