INTERVERTEBRAL DISC SYNDROME

C. J. MCENTEE · 2022 · Case ID: 22032821

MIXED

Summary

The veteran, who served from May 1983 to December 1992, including service in Southwest Asia, appeals the denial of service connection for joint pain and the denial of an increased rating for his lumbosacral spine disability. The Board granted a 40 percent rating for the lumbosacral spine disability, effective February 7, 2012, finding that the evidence supported this rating based on flexion limited to 30 degrees, resolving reasonable doubt in the veteran's favor. The Board found that while the veteran experienced pain and functional loss, the evidence did not meet the criteria for a higher rating, specifically unfavorable ankylosis or incapacitating episodes. The Board also denied service connection for joint pain, diagnosed as arthritis and ankle sprains, finding that these conditions did not manifest during service or within the presumptive period, and continuity of symptomatology was not established. The Board gave more weight to VA examinations, particularly one from February 2021, which found the arthritis to be most likely due to age-related changes and obesity, and that there was no medical nexus to service. The veteran's lay statements were found to be inconsistent with service records and later medical history, thus not probative.

Rationale

Flexion limited to 30 degrees; Benefit of the doubt applied; Evidence in equipoise

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5235

Docket No.

15-03 172

Full Decision Text

Citation Nr: 22032821
Decision Date: 06/06/22 Archive Date: 06/06/22

DOCKET NO. 15-03 172
DATE: June 6, 2022

ORDER

Entitlement to a 40 percent rating, but no higher, for lumbosacral strain with degenerative disc disease, arthritis and intervertebral disc syndrome (IVDS), effective February 7, 2012, is granted.

Entitlement to service connection for joint pain, to include as a manifestation of undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C. § 1117, is denied.

FINDINGS OF FACT

1. From the date of claim for increase, February 7, 2012, the Veteran's lumbosacral strain with degenerative disc disease, arthritis and IVDS has more nearly approximated the equivalent of flexion limited to 30 degrees or less, but without the functional equivalent of unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes totaling at least 6 weeks in a 12-month period.

2. Joint pain, diagnosed as arthritis of knees, elbows and hands and bilateral ankle lateral collateral ligament sprain and calcaneal spurs, did not manifest during active service, within one year of service, and was not the result of any established event, injury, or disease during active service, to include exposure to environmental hazardous in the Southwest Asia Theatre of Operations.

CONCLUSIONS OF LAW

1. The criteria for a 40 percent rating, but no higher, for lumbosacral strain with degenerative disc disease, arthritis and IVDS, effective February 7, 2012, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Diagnostic Codes 5235-5243.

2. The criteria for service connection for joint pain, diagnosed as arthritis of knees, elbows and hands and bilateral ankle lateral collateral ligament sprain and calcaneal spurs, to include as a manifestation of undiagnosed illness or other qualifying chronic disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1983 to December 1992, to include service in Southwest Asia.

In March 2017, the Veteran testified during a Board video-conference hearing before a Veterans Law Judge. A transcript of this hearing has been associated with the claims file. In April 2022, the Veteran was notified that the Veterans Law Judge who conducted the hearing was no longer employed at the Board. The Veteran was given an opportunity to testify at another hearing. However, as the Veteran did not respond to the notice within 30 days as requested, the Board assumes that he does not want another hearing and will proceed with the issuance of this decision.

This case has a long procedural history that has been extensively outlined in prior Board decisions. Most recently, the Board remanded this matter January 2021 for further development. As discussed further below, the Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. at 271 (1998).

Entitlement to an increased rating for lumbosacral strain with degenerative disc disease, arthritis and IVDS

The present appeal includes the issue of entitlement to an increased rating for the Veteran's lumbar spine disability. The Veteran filed his current claim seeking an increased rating on February 7, 2012. In a July 2020 rating decision, the agency of original jurisdiction (AOJ) granted a 20 percent rating, effective May 18, 2020. In a subsequent August 2020 rating decision, the AOJ awarded a December 3, 2019 effective date for the 20 percent rating. Most recently, in a March 2022 rating decision, a 40 percent rating for the Veteran's low back disability was granted, March 4, 2022.

Disability evaluations are determined
The present appeal includes the issue of entitlement to an increased rating for the Veteran's lumbar spine disability. The Veteran filed his current claim seeking an increased rating on February 7, 2012. In a July 2020 rating decision, the agency of original jurisdiction (AOJ) granted a 20 percent rating, effective May 18, 2020. In a subsequent August 2020 rating decision, the AOJ awarded a December 3, 2019 effective date for the 20 percent rating. Most recently, in a March 2022 rating decision, a 40 percent rating for the Veteran's low back disability was granted, March 4, 2022.

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). As in the instant case, where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where, as here, separate ratings for distinct periods of time based on the facts are for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007).

The General Rating formula for Diseases and Injuries of the Spine provides for the disability ratings under Diagnostic Codes 5235 to 5243, unless the disability rated under Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, for diseases and injuries of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

Under the General Rating formula, ratings are assigned as follows: a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.

Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.

Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine,
(3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

During the pendency of the appeal, the rating criteria evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (November 30, 2020). However, the Veteran's lumbar spine disability is rated under the General Formula for Disease and Injuries of the Spine, which did not change. The Board observes that Diagnostic 5243 for intervertebral disc syndrome was revised to only apply when there is disc herniation with compression and/or irritation of the adjacent nerve root.

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).

A VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Review of the March 2022 VA examination report, which is discussed further below, showed that joint testing for pain on active motion was performed, but joint testing on passive motion was medical contraindicated. The examiner also noted evidence of pain in weight-bearing and nonweight-bearing. The Board finds that this examination meets
§ 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Review of the March 2022 VA examination report, which is discussed further below, showed that joint testing for pain on active motion was performed, but joint testing on passive motion was medical contraindicated. The examiner also noted evidence of pain in weight-bearing and nonweight-bearing. The Board finds that this examination meets the requirements set forth in Correia.

In Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court held that the application of §§ 4.40 and 4.45 permits consideration of an evaluation based on ankylosis, if a claimant's functional loss is consistent with that contemplated by ankylosis, that is, if the demonstrated functional loss is the functional equivalent of ankylosis. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); see also Villareal v. Principi, 18 Vet. App. 13 (2001) (defining ankylosis to mean that "a joint is fixed, or 'frozen' in one position").

After a thorough review of the evidence of record and when resolving reasonable doubt in the Veteran's favor, the Board finds that, as of February 7, 2012, the date of claim for an increased rating, a 40 percent rating is warranted for the Veteran's service-connected low back disability. Importantly, the Veteran was afforded VA examinations in August 2012 and December 2016. However, the May 2019 Joint Motion for Remand (JMR) found that both of these examinations were inadequate as they did not comply with the requirements set forth in Sharp and Mitchell. In this regard, despite the Veteran describing severe pain and functional impairment, neither examiner stated in degrees the Veteran's additional functional loss following repeated use over time or during flare-ups. Thus, given these deficiencies, the Board may not rely on these examinations and they have no probative value.

Subsequently, the Veteran was afforded a VA examination in December 2019, which showed flexion limited to 30 degrees, the criteria for a 40 percent rating under the General Rating Formula. Given the inadequacy of the prior VA examinations, the Board finds that this examination is the most probative as to the Veteran's limitation of motion since the date of claim. The Board acknowledges that VA examinations in January and July 2020 indicated that flexion was to 40 degrees, the criteria for a 20 percent rating, but both VA examiners indicated that the Veteran had difficulty bending over. Importantly, the March 2022 examination again showed flexion limited to 30 degrees. Thus, the medical evidence appears to at least be in equipoise as to the degree of limitation on flexion. Accordingly, when resolving the benefit of the doubt in favor of the Veteran, given the additional functional loss with repetitive use over time and during flare-ups as well as the severe pain described by the Veteran, it would appear that the Veteran's low back disability more nearly approximates range of motion findings of flexion limited to at least 30 degrees, which is the criteria for a 40 percent rating under the General Rating Formula.

Importantly, of note, the record also documents that the Veteran is required to use a cane regularly for ambulation. Moreover, all of the VA examiners found that the Veteran's low back disability impacted his ability to work due to an inability to sit for periods of time and lift heavy equipment. Further, the Veteran's statements and hearing testimony concerning his severely painful back motion and his inability to do physical activities as well as problems working have been consistent throughout the appeal period. In sum, when looking at the totality of the competent evidence of record, and when considering Deluca, together with 38 C.F.R. § 4.7 and the doctrine of reasonable doubt, a 40 percent disability rating more accurately reflects the level of disability from February 7, 2012. As the evidence does not show that the Veteran met the criteria for a higher rating the year prior to his claim, the appropriate effective date is the date of claim. See 38 C.F.R. § 3.400.

However, the Board finds
's statements and hearing testimony concerning his severely painful back motion and his inability to do physical activities as well as problems working have been consistent throughout the appeal period. In sum, when looking at the totality of the competent evidence of record, and when considering Deluca, together with 38 C.F.R. § 4.7 and the doctrine of reasonable doubt, a 40 percent disability rating more accurately reflects the level of disability from February 7, 2012. As the evidence does not show that the Veteran met the criteria for a higher rating the year prior to his claim, the appropriate effective date is the date of claim. See 38 C.F.R. § 3.400.

However, the Board finds that the evidence persuasively weighs against finding that the Veteran is entitled to disability evaluation in excess of 40 percent at any point during the course of the appeal. A higher disability evaluation of 50 percent is warranted when there is evidence of unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. All of the VA examinations show that there is no objective evidence of ankylosis. Importantly, VA clinical records, while documenting pain and loss of motion, are silent with respect to any findings of ankylosis. On testing, the Veteran still exhibited some motion.

Moreover, the evidence fails to show that the Veteran's ankylosis results in one or more of the following as required to be considered unfavorable: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching as set forth in Note (5). Importantly, the rating criteria clearly state that fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

While the Veteran experiences pain and significant impairment due to his spine disability, he has maintained some degree of motion despite his functional loss. Therefore, a higher disability evaluation based on functional impairment is not warranted. In sum, the evidence demonstrates that the Veteran does not suffer from the functional equivalent of unfavorable ankylosis to warrant a higher rating.

A 100 percent disability evaluation is also warranted if there is evidence of unfavorable ankylosis of the entire spine. Id. However, for the same reasons noted in the preceding paragraph, the Veteran is not entitled to a higher rating as he does not suffer from the functional equivalent of unfavorable ankylosis of the entire spine.

Finally, a 60 percent disability evaluation is also warranted for intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a , Diagnostic Code 5242. The VA examination reports clearly found that the Veteran did not require bed rest. Moreover, VA clinical records are silent with respect to any findings of physician prescribed bed rest. Further, the Veteran and his representative have not specifically identified any treatment records that show incapacitation requiring physician prescribed bed rest for this duration of time. As such, the Board finds that the probative medical evidence demonstrates that a higher disability evaluation is not warranted based on incapacitating episodes.

With respect to any associated objective neurologic abnormalities, the Board observes that the Veteran was awarded separate ratings for radiculopathy of the right and left lower extremities in a July 2020 rating decision. Moreover, these ratings were increased in the March 2022 rating decision. The Veteran has not appealed either decision. However, under Chavis, the Court has acknowledged that under certain circumstances, the Board has jurisdiction over separate neurological ratings awarded during the adjudication of an increased rating claim for the spine without the need of the claimant filing a specific notice of disagreement for the separately awarded neurological ratings. Chavis v. McDonough, 34 Vet. App. 1 (2021) (noting that an increased rating claim for the spine could include neurological ratings as part and parcel, but the Court declined finding that it "always" would).

However, in this case, the Board finds that the radiculopathy ratings are not part and parcel of the spine rating on appeal here. In this regard, when the Board remanded the claim for further development thereafter in January 2021, the radiculopathy ratings were not indicated as part of the remanded appeal and the Veteran has never indicated a desire for those ratings to be reviewed in the context of this appeal or an expectation that the ratings for his radiculopathy of the lower extremities would be reviewed in the context of this appeal. Moreover, the Veteran has been represented throughout the course of the appeal and the representative has also given no indication that these matters should be considered on appeal. Importantly, the AOJ recently issued a supplemental statement of the case (SSOC) in March 2022, which again showed that these ratings were not part of the appeal. Most recently, the Veteran's representative submitted a brief on his behalf in April 2022 and again, did not give an indication of an expectation that the radiculopathy ratings were on appeal. In sum, given the procedural context of this case, the Veteran has no reasonable expectation that the left and right leg radiculopathy ratings were ever procedurally part of this appeal. The Veteran may still appeal the March 2022 rating decision. Accordingly, the Board will not address the separate ratings awarded for left and right lower extremity radiculopathy as part of this decision.

Further, the Board finds that there has been no finding of any other associated neurological abnormalities to warrant a separate compensable rating. In this regard, all of the VA examiners found no other associated neurological abnormalities. Moreover, the Veteran has not described any other associated neurological symptoms. Thus, an additional separate compensable rating is not warranted for any other neurological symptoms and the Veteran's current symptoms are adequately contemplated under the assigned 40 percent disability rating.

The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. Importantly, the Veteran's statements were contemplated by the Board in awarding a 40 percent back to the date of claim. In sum, the lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.

Based upon the guidance of the Court in Hart cited above, the Board has considered whether a staged rating is appropriate. However, as outlined above, the Veteran has not been entitled to a disability evaluation in excess of 40 percent at any time since the date of claim. As such, staged ratings are not warranted.

The Board also notes that the JMR indicated that the Board previously failed to adequately explain justification for not referring this matter to the Director of Compensation Service for extraschedular consideration. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the Regional Office (RO) is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321 (b)(1)).

The crucial criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations.
. § 3.321 (b)(1)).

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.

If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id.

In this case, the symptoms described by the Veteran outlined above fit squarely within the criteria found in the relevant Diagnostic Codes for the disability at issue. The Veteran has primarily asserted that he experiences pain and functional loss due to his low back disability. Again, a higher rating is only warranted for findings equivalent to ankylosis. In sum, the rating criteria contemplate not only his symptoms, but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted.

In conclusion, the Board finds that a 40 percent rating for the Veteran's lumbosacral strain with degenerative disc disease, arthritis and IVDS is warranted, effective February 7, 2012. However, the evidence persuasively weighs against a rating in excess of 40 percent the low back disability. In denying a higher rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Entitlement to service connection for joint pain, to include as a manifestation of undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C. § 1117

The Veteran contends that his joint pain is a result of his service in the Gulf War, to include a gamma globulin shot and taking pyridostigmine tablets. He reported his joint pain began in 1992 and that he had chronic problems since 1994. He indicated that he experienced pain in his knees, elbows, fingers, and ankles.

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).

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an
. § 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).

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

The Veteran's disabilities of the knees, elbows and hands have been attributed to a known clinical diagnosis of arthritis; and the disabilities of the ankles have been attributed to a known clinical diagnosis of lateral collateral ligament sprain and calcaneal spurs by the December 2019 VA examiner. The examiner also determined that all of these disabilities have a clear and specific etiology and diagnosis. As such, the presumptive regulations pertaining to an undiagnosed illness or other qualifying chronic disability under 38 C.F.R. § 3.317 are not applicable. 38 U.S.C. § 1117; 38 C.F.R. § 3.317.

Thus, the question for the Board is whether the Veteran has a chronic disease of the knees, elbows, and hands that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service.

The Board concludes that, while the Veteran has arthritis of the knees, elbows and hands, which is a chronic disease under 38 U.S.C. § 1101(3), 38 C.F.R. § 3.309(a), it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a).

Service treatment records are silent with respect to any complaints pertaining to the knees, elbows and hands with the exception of an injury to the right thumb for which the Veteran has already been awarded service connection. Further, in a periodic medical history dated in March 1995, the Veteran expressly denied any problems with the knees, hands or elbows. Significantly, x-rays of the elbows in February 1998 were normal. Moreover, x-rays of the hands and knees were normal in August 2012. Importantly, the first x-ray evidence of arthritis of the knees and hands is dated in April 2019 and of the elbows is December 2019, decades after his separation from active service and decades outside of the applicable presumptive period. In sum, there is no objective medical evidence, such as an x-ray, to verify the presence of arthritis within one year of discharge. Moreover, there is no indication that arthritis was present to a compensable degree during the one-year period following the Veteran's discharge from active service.

While the Veteran is competent to report having experienced symptoms of joint pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which does not show that the Veteran was diagnosed with arthritis until many years later. Moreover, as discussed further below, the February 2021 VA examiner found that the Veteran's arthritis was most likely due to age related changes and obesity.

Moreover, the Board finds that the Veteran's reports of inservice problems and continuity of symptomatology are not probative. The lay reports are inconsistent with reports in contemporaneous treatment records, in which he denied relevant symptoms during
of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which does not show that the Veteran was diagnosed with arthritis until many years later. Moreover, as discussed further below, the February 2021 VA examiner found that the Veteran's arthritis was most likely due to age related changes and obesity.

Moreover, the Board finds that the Veteran's reports of inservice problems and continuity of symptomatology are not probative. The lay reports are inconsistent with reports in contemporaneous treatment records, in which he denied relevant symptoms during service. Importantly, again, in the March 1995 medical history, three years after discharge, he still denied any such symptoms. Further, post-service records do not show any complaints of joint pain until many years after service. The absence of post-service findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous symptoms after service separation. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).

That the Veteran's lay assertions are not probative is not due to the fact that they are unaccompanied by contemporaneous medical evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, the lay statements are not probative because they are inconsistent with and directly contradicted by other lay and medical evidence of record, including the Veteran's own statements during service as well as three years after service. See Madden, 125 F.3d at 1481 (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service).

Service connection for the disabilities described as joint pain may still be granted on a direct basis; however, the evidence persuasively weighs against finding that a medical nexus exists between the Veteran's disabilities and an in-service injury, event or disease, to include environmental exposure in the Southwest Asia Theatre of operations. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).

In this regard, the Board found that a September 2012 VA examination that attributed the Veteran's join pain to gout to be inadequate. Most, recently the Board also found that the May 2020 VA etiological opinion was inadequate as the examiner did not appear to consider the Veteran's lay statements and remanded for an addendum opinion.

However, in relevant part, the May 2020 VA examiner did opine that it is less likely than not that the Veteran's musculoskeletal disorders and/or complaints of "joint pain in the knees, elbows, hands/fingers, and ankles" was incurred in or caused by his active military service (and/or use of pyridostigmine or human immune globulin) of 1983-1992. The examiner rationalized that review of the medical literature finds no clinical evidence documenting that non-specific "joint pain", osteoarthritis, bursitis, epicondylitis, ligament strains, trigger finger, healed fracture, patellofemoral pain syndrome and/or heel spurs are in any manner causally related to use remote (decades prior) use of either pyridostigmine or human immune globulin therapy.

The Board finds that as the Veteran's lay statement concerning the onset of symptoms is not relevant to the above opinion. In turn, this opinion with rationale is probative with respect to the Veteran's contention that his joint pain is due to gamma globulin shot and taking pyridostigmine tablets.

Importantly, after reviewing the evidence of record, the February 2021 VA examiner found that the condition claimed was less likely than not
itis, epicondylitis, ligament strains, trigger finger, healed fracture, patellofemoral pain syndrome and/or heel spurs are in any manner causally related to use remote (decades prior) use of either pyridostigmine or human immune globulin therapy.

Importantly, after reviewing the evidence of record, the February 2021 VA examiner found that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that extensive review of the medical documentation, to include the previous medical opinion provided on May 8, 2020, does not show objective medical evidence that the Veteran suffered from any acute/chronic conditions related to the bilateral hand/fingers (diagnosed as bilateral first CMC osteoarthritis), bilateral knee (diagnosed as osteoarthritis), and/or bilateral ankle (diagnosed as lateral collateral/deltoid ligament sprain tendonitis) that was caused by or due to his active duty time. In-service medical documentation does not show any injury/trauma, complaints, evaluation, work-up (to include imaging), and/or treatment regarding the bilateral hand/fingers, bilateral knee and/or bilateral ankle.

It should be noted that right hand x-rays were performed in-service as part of a work-up for a hand laceration and that the right hand x-rays were interpreted as normal. It would be expected that if the Veteran had any complaints, he would have made mention of them on the multiple flight physicals and/or any other medical visits he attended in the nine years he was active duty, but he did not, which suggests that there were no issues on his end. The Veteran clearly, per his own report on multiple Report of Medical History documents, did not have any complaints pertaining to bilateral hands/fingers, bilateral knee and/or bilateral ankle during his active duty service. Physical examinations performed at Report of Medical Examination visits, noted below, did not show any abnormal upper/lower extremity findings. Lack of subjective complaints by the Veteran combined with multiple normal physical exams means there were no issues at hand to address by either the Veteran or the medical examiner. While the Veteran is deemed competent to provide a history of symptomatology, he is not capable of diagnosing those symptoms.

Sprains and tendonitis are typically acute conditions that are treated conservatively and resolve over time. Most recent primary care notes dated in December 2020 and August 2019 do not note any subjective complaints and/or physical exam findings regarding the bilateral ankle. The bilateral ankle x-rays performed in December 2019 were normal. The plantar and calcaneal enthesophytes noted on said x-rays are related to the foot and not the ankle joint. The ankle joint is comprised of the tibia, fibula and talus. The Veteran's osteoarthritis is most likely due to a combination of age related changes and obesity. The examiner cited to UpToDate to support their findings.

The examiner also stated that the Veteran does not have a formal diagnosis of chronic fatigue syndrome (CFS). CFS is a diagnosis of exclusion and the Veteran's subjective complaints of fatigue have been attributed to his morbid obesity, lack of physical activity, obstructive sleep apnea, mental health, poor sleep hygiene, hypogonadism, and hypothyroidism; all of which can cause the symptom of fatigue.

The Board recognizes that the VA examiner did not specifically address the Veteran's bilateral elbow arthritis. Nevertheless, as discussed above, there is no medical evidence or credible lay evidence of any elbow problems in service. Importantly, the VA examiner generally addressed the Veteran's arthritis and determined that it was related to his age and obesity. Further, the examiner discussed the Veteran's statements of record, but appeared to indicate that they contradicted the statements made in service where he denied any symptoms. Again, as discussed above, the Board has determined that the Veteran is not credible with respect to the onset date of his symptoms while in service, and pertinent symptomatology since service. In sum, the Board finds that the VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

While the Veteran believes that his disabilities, claimed as joint pain, are related to an in-service injury, event, or
Veteran's statements of record, but appeared to indicate that they contradicted the statements made in service where he denied any symptoms. Again, as discussed above, the Board has determined that the Veteran is not credible with respect to the onset date of his symptoms while in service, and pertinent symptomatology since service. In sum, the Board finds that the VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

While the Veteran believes that his disabilities, claimed as joint pain, are related to an in-service injury, event, or disease, including environmental exposure in the Southwest Asia Theatre of operation, he is not competent to provide a nexus opinion in this case. Again, this issue is also medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, specifically the most recent February 2021 VA opinion.

In sum, the Board finds that the most probative evidence is against the Veteran's claim, and service connection for joint pain, diagnosed as arthritis of knees, elbows and hands and bilateral ankle lateral collateral ligament sprain and calcaneal spurs, to include as due to an undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C. § 1117, is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent, probative evidence persuasively weighs against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

C. J. McEntee

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J.N. Moats

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.

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