ANKLE IMPAIRMENT OF

COLLEEN M. GLASER-ALLEN · 2026 · Case ID: A26038160

MIXED

Summary

The veteran, who served honorably in the United States Marine Corps from July 1993 to July 1997, appeals the denial of a compensable rating for chronic bronchitis and service connection for bilateral lower inflammatory arthritis and a respiratory condition secondary to chronic bronchitis. The veteran also sought an increased rating for service-connected bilateral ankle degenerative arthritis with bursitis and tendinitis. The Board granted an increased rating of 20 percent for both the right and left ankle disabilities, finding the evidence supported marked limitation of motion, resolving doubt in the veteran's favor. However, the claim for chronic bronchitis was denied as the veteran's pulmonary function tests did not meet the criteria for a compensable rating. The claims for bilateral lower inflammatory arthritis and a respiratory condition secondary to chronic bronchitis were denied due to a lack of competent medical evidence establishing a current diagnosis for these conditions. The Board remanded the claims for bilateral ankle sprains, noting the inadequacy of the VA examination which failed to provide a diagnosis or address the veteran's reported history of chronic bilateral ankle sprains and in-service ankle injuries. A new VA examination is ordered to address direct and secondary service connection for the ankle sprains.

Rationale

November 2024 VA ankle examination showed marked limitation of motion; Evidence supports 20 percent rating under DC 5271; Doubt resolved in veteran's favor

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5271

Docket No.

251118-627246

Full Decision Text

Citation Nr: A26038160
Decision Date: 04/23/26 Archive Date: 04/23/26

DOCKET NO. 251118-627246
DATE: April 23, 2026

ORDER

Entitlement to an increased rating of 20 percent, the schedular maximum, for service-connected right ankle degenerative arthritis with bursitis and tendinitis is granted.

Entitlement to an increased rating of 20 percent, the schedular maximum, for service-connected left ankle degenerative arthritis with bursitis and tendinitis is granted.

Entitlement to a compensable rating for service-connected chronic bronchitis is denied.

Entitlement to service connection for right lower inflammatory arthritis is denied.

Entitlement to service connection for left lower inflammatory arthritis is denied.

Entitlement to service connection for a respiratory condition secondary to chronic bronchitis is denied.

REMANDED

Entitlement to service connection for right ankle sprain is remanded.

Entitlement to service connection for left ankle sprain is remanded.

FINDINGS OF FACT

1. The Veteran's service-connected right ankle disability more closely approximates marked limitation of motion.

2. The Veteran's service-connected left ankle disability more closely approximates marked limitation of motion.

3. The persuasive evidence of record indicates that the Veteran's chronic bronchitis was not manifest by FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or DLCO (SB) 66 to 80 percent predicted.

4. There is no competent medical evidence that the Veteran has been diagnosed with a right lower inflammatory arthritis, or similar, condition.

5. There is no competent medical evidence that the Veteran has been diagnosed with a left lower inflammatory arthritis, or similar, condition.

6. There is no competent medical evidence that the Veteran has been diagnosed with a respiratory condition secondary to chronic bronchitis.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an increased rating of 20 percent, the schedular maximum, for service-connected right ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5271.

2. The criteria for entitlement to an increased rating of 20 percent, the schedular maximum, for service-connected left ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, DC 5271.

3. The criteria for a compensable rating for service-connected chronic bronchitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.27, 4.40, 4.45, 4.97, DC 6600.

4. The criteria for entitlement to service connection for left lower inflammatory arthritis have not been met. 38 U.S.C. §§ 503, 1110, 1131, 5107, 7104; 38 C.F.R. §§ 3.102, 3.104, 3.303, 4.3.

5. The criteria for entitlement to service connection for right lower inflammatory arthritis have not been met. 38 U.S.C. §§ 503, 1110, 1131, 5107, 7104; 38 C.F.R. §§ 3.102, 3.104, 3.303, 4.3.

6. The criteria for entitlement to service connection for a respiratory condition secondary to chronic bronchitis have not been met. 38 U.S.C. §§ 503, 1110, 1131, 5107, 7104; 38 C.F.R. §§ 3.102, 3.104, 3.303, 3.310, 4.3.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably on active duty in the United States Marine Corps from July 1993 to July 1997. His awards and decorations include the Southwest Asia Service Medal, the National Defense Service
104, 3.303, 4.3.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

Evidentiary windows

The rating decision on appeal was issued in December 2024. Therefore, the modernized review system, known as the Appeals Modernization Act (AMA), applies. In the November 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Under the Direct Review docket, the Board is authorized to review only the evidence considered by the Agency of Original Jurisdiction (AOJ) at the time of the December 2024 rating decision. The Board may not consider evidence presented outside of the timeframes discussed above. Evidence provided following the December 2024 rating decision on appeal has not been considered by the Board in its decision on the claims. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims of bilateral ankle sprains, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii).

Timeliness of an appeal

Under the modernized review system, an appeal consists of a properly completed Notice of Disagreement, on a form prescribed by the Secretary, submitted to the Board within one year from the date that the AOJ mailed notice of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.2500, 20.202, 20.203. A question as to the timeliness or adequacy of a Board Appeal request shall be decided by the Board. 38 U.S.C. § 7105.

An extension of the period for filing a Board Appeal request may be granted for good cause. 38 C.F.R. § 20.203. A request for such an extension must be in writing and must be filed with the Board. Id. When an extension is requested after expiration of a time limit, good cause must be shown as to why the required action could not have been taken during the original period and could not have been taken sooner than it was. 38 C.F.R. § 3.109. Whether good cause for an extension has been established will be determined by the Board. 38 C.F.R. § 20.203.

Examples of good cause may include serious illness or injury of the appellant or representative, or the appellant's inability to access mail services due to homelessness, or overseas deployment. Examples that would not constitute good cause include change in representation, change in preference of a review option at the AOJ or among the Board review options, difficulty in obtaining evidence, or discovery of new evidence during a period in which the duty to assist does not apply. 84 Fed. Reg. 138, 155 (Jan. 18, 2019).

The Board recognizes that in the November 2025 VA Form 10182 the Veteran also appealed two deferred exhaustion rating decisions from August 2023 and December 2023, and an exhaustion rating decision from January 2024. Additionally, the Veteran appealed chronic bronchitis, irritable bowel syndrome, and obstructive sleep apnea claims from a December 2023 rating decision. The Veteran also appealed an anxiety claim, bilateral nerve condition claims, and a shortness of breath claim from two August 2023 rating decisions. The Veteran also appealed a hearing loss
a period in which the duty to assist does not apply. 84 Fed. Reg. 138, 155 (Jan. 18, 2019).

The Board recognizes that in the November 2025 VA Form 10182 the Veteran also appealed two deferred exhaustion rating decisions from August 2023 and December 2023, and an exhaustion rating decision from January 2024. Additionally, the Veteran appealed chronic bronchitis, irritable bowel syndrome, and obstructive sleep apnea claims from a December 2023 rating decision. The Veteran also appealed an anxiety claim, bilateral nerve condition claims, and a shortness of breath claim from two August 2023 rating decisions. The Veteran also appealed a hearing loss claim and bilateral ankle claims from an April 2015 rating decision with notification to the Veteran in May 2015. However, each of these rating decisions were issued well over a year prior to the November 2025 VA 10182, making them untimely and not properly appealed to the Board.

The Board notes that no good cause was provided by either the Veteran, or his representative, which would permit the Board to extend the time for filing an appeal. Therefore, the Board will not address those decisions as they were not timely appealed. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.109, 3.2500, 20.202, 20.203.

1. Increased rating of 20 percent, the schedular maximum, for service-connected right ankle degenerative arthritis with bursitis and tendinitis

2. Increased rating of 20 percent, the schedular maximum, for service-connected left ankle degenerative arthritis with bursitis and tendinitis

The Veteran contends that he is entitled to a rating greater than 10 percent for his service-connected bilateral ankle disabilities. See November 2025 VA Form 10182. The Board notes that the Veteran was granted service connection for his bilateral ankle degenerative arthritis disabilities in a February 2024 rating decision and assigned a 10 percent rating for each ankle, effective March 2, 2020.

Legal Criteria

Increased evaluations

Disability evaluations are determined by comparing a Veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

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 for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation under 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding this appeal, the Board will consider whether separate ratings for different periods of time based on the facts found within the record is warranted. This is a practice of assigning ratings referred to as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).

Evidence assessment

In making all determinations, the Board must fully
disability in order to make a more accurate evaluation under 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding this appeal, the Board will consider whether separate ratings for different periods of time based on the facts found within the record is warranted. This is a practice of assigning ratings referred to as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).

Evidence assessment

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flareups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt rule does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

Rating criteria

The Veteran's service-connected bilateral ankle degenerative arthritis disabilities have been rated under DC 5271. 38 C.F.R. § 4.71a; see April 2024 Codesheet. Under DC 5271, a 10 percent rating is warranted for moderate limitation of motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). A 20 percent maximum rating is warranted for marked limitation of motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion).

The normal range of motion of the ankle is 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a.

The Board notes that the requirements of DC 5271 are disjunctive meaning that only one requirement must be met in order for an increased rating to be assigned. Johnson v. Brown, 7 Vet. App. 95 (1994).

Neither "moderate" nor "marked" are defined within DC 5271. "Moderate" means "tending toward the mean or average amount or dimension" or "limited in scope or
less than 10 degrees plantar flexion).

The normal range of motion of the ankle is 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a.

Neither "moderate" nor "marked" are defined within DC 5271. "Moderate" means "tending toward the mean or average amount or dimension" or "limited in scope or effect." See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character." See www.merriam-webster.com/dictionary/marked.

Evidence and Analysis

Turning to the record, the Veteran was provided a VA ankle examination in November 2024. The examiner noted a continued diagnosis of bilateral tendonitis, bilateral bursitis, and bilateral tendinopathy. The examiner noted an abnormal range of motion with bilateral plantar flexion limited to 35 degrees and bilateral dorsiflexion limited to 15 degrees with pain on both ranges of motion. Repeated use over time indicated reduced range of motion with bilateral plantar flexion limited to 25 degrees and bilateral dorsiflexion limited to 10 degrees. Flareups resulted in additional loss of motion with bilateral plantar flexion limited to 15 degrees and bilateral dorsiflexion limited to 5 degrees. The examiner noted no muscle atrophy, ankylosis, joint instability, or the need for assistive devices.

Probative value is afforded to the November 2024 VA ankle examination. Notably, the examiner offered a definitive examination supported by a detailed rationale which directly contemplates the Veteran's reports of bilateral ankle pain and his current bilateral ankle symptomology. There is no evidence that the examiner misstated any relevant fact in providing the examination which was supported by a comprehensive review of the claims file and related medical research analysis. As such, the Board finds the November 2024 VA ankle examination to be afforded probative value.

There are no additional VA or private bilateral ankle medical examinations of record.

The Board has reviewed the Veteran's treatment records. No medical notes indicate range of motion testing that would either show a less severe range of motion or a worse range of motion. See four January 2015, two February 2015, two April 2015, a May 202, two June 2023, a July 2023, two August 2023, an October 2023, a January 2024, and a September 2024 CAPRI records; see also an April 2020 and July 2023 Medical Treatment Record - Non-Government Facility, and two December 2023 Medical Treatment Record - Government Facility.

In light of the history discussed above, the Board finds that the Veteran's claim for a rating greater than 10 percent must be granted. Here, resolving doubt in the Veteran's favor, this claim for an increased rating must be granted as the evidence of record clearly indicates dorsiflexion at five degrees. The Board finds that the symptomology within the record meets the definitions of marked limitation of motion.

The Board finds that the evidence of record persuasively weighs in favor of the claim for an increased rating of 20 percent, the schedular maximum, for the Veteran's service-connected bilateral ankle degenerative arthritis disabilities. To that extent, the claim is granted. The Board has also considered the application of the remaining Diagnostic Codes in an effort to determine whether a higher rating may be warranted for the Veteran's bilateral ankle disabilities. The evidence does not show dislocation or deformity of the ankle. Moreover, only DC 5270 provides a rating in excess of 20 percent pertaining to the ankle and requires evidence of ankylosis. The evidence consistently indicates the Veteran does not have ankylosis, or fixation, of the bilateral ankles; therefore, a rating higher than 20 percent cannot be assigned. To that extent, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

3. Increased, compensable rating for service-connected chronic bronchitis

The Veteran contends that his service-connected chronic bronchitis warrants a compensable rating. See December 2024 VA Form 10182.

Legal Criteria

The legal criteria for increased ratings
Veteran does not have ankylosis, or fixation, of the bilateral ankles; therefore, a rating higher than 20 percent cannot be assigned. To that extent, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

3. Increased, compensable rating for service-connected chronic bronchitis

The Veteran contends that his service-connected chronic bronchitis warrants a compensable rating. See December 2024 VA Form 10182.

Legal Criteria

The legal criteria for increased ratings and evidence assessment are discussed above.

Rating Criteria

The Veteran's service-connected chronic bronchitis has been rated under DC 6600. 38 C.F.R. § 4.97; see December 2024 Codesheet. Under DC 6600, a 10 percent rating is assigned for chronic bronchitis manifested by FEV-1 of 71 to 80 percent predicted, FEV-1/FVC of 71 to 80 percent, or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted. A 30 percent rating is assigned for chronic bronchitis manifested by FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent, FEV-1/FVC of 56 to 70 percent, or DLCO (SB) of 56 to 65 percent predicted. A 60 percent rating is assigned for chronic bronchitis manifested by FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, DLCO (SB) of 40 to 50 percent predicted, or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is assigned for chronic bronchitis manifested by FEV-1 less than 40-percent predicted, FEV-1/FVC less than 40 percent; DLCO (SB) of less than 40-percent predicted, maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by Echo or cardiac catheterization), episode(s) of acute respiratory failure, or requires outpatient oxygen therapy.

When evaluating disability based on PFTs, VA is to use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, VA is to use the pre-bronchodilator values for rating purposes. 38 C.F.R. § 4.96(d)(5).

Post-bronchodilator testing is required unless the pre-bronchodilator testing is normal. 38 C.F.R. § 4.96(d)(4).

When there is a disparity between the results of different PFTs (FEV-1, FVC, etc.), so that the level of evaluation would differ depending on which test result is used, VA is to use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6).

Evidence and Analysis

The Veteran was provided with an in-person December 2024 VA respiratory examination. The examiner noted a diagnosis of chronic bronchitis. The examiner noted that this diagnosis does not require the use of oral or parenteral corticosteroid treatment, does not require the use of inhaled medications, does not require the use of oral bronchodilators, the use of antibiotics, or the need for outpatient oxygen therapy. The examiner noted an October 2023 Pulmonary Function Test (PFT) which found pre-bronchodilatory scores of FVC at 86 percent predicted, FEV-1 at 90 percent predicted, and FEV-1/FVC at 82 percent predicted. The examination did not provide post-bronchodilator scores and did not indicate a reason in the appropriate section. The examiner also noted that DCLO scores were not indicated for this particular Veteran's case. The examiner noted that the score that most accurately reflected the Veteran's level of disability was the FEV-1/FVC score.

There are no additional VA or private examinations of record.

When viewing the record as a whole, the Board finds that probative value must be afforded to the December 2024 VA
) which found pre-bronchodilatory scores of FVC at 86 percent predicted, FEV-1 at 90 percent predicted, and FEV-1/FVC at 82 percent predicted. The examination did not provide post-bronchodilator scores and did not indicate a reason in the appropriate section. The examiner also noted that DCLO scores were not indicated for this particular Veteran's case. The examiner noted that the score that most accurately reflected the Veteran's level of disability was the FEV-1/FVC score.

There are no additional VA or private examinations of record.

When viewing the record as a whole, the Board finds that probative value must be afforded to the December 2024 VA respiratory examination. Notably, the examiner offered a definitive in-person examination which noted symptomology regarding the Veteran's chronic bronchitis. There is no evidence that the examiner misstated any relevant fact within this examination, which was supported by a comprehensive review of the claims file and related medical research analysis. As such, the Board finds the December 2024 VA respiratory examination to be adequate.

Based on the above, the Board finds that a compensable rating is not warranted. The December 2024 VA examiner noted symptoms of chronic bronchitis that do not meet the requirements of a 10 percent rating as discussed above as none of the pulmonary function tests indicate a score lower than 80 percent predicted. Further, there was no indication of symptoms requiring DLCO (SB), maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation, cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episode(s) of acute respiratory failure, or outpatient oxygen therapy. Additionally, the Board finds that post-bronchodilator scores are not necessary here as none of the Veteran's PFT results fell below, even slightly, the criteria for a compensable rating within either the December 2024 VA examination or within the Veteran's treatment record. Therefore, the Board finds that the Veteran's symptomology more closely approximates a non-compensable rating under DC 6600.

The Board is sympathetic to the Veteran's assertions and grateful for his service, but the Board is bound and constrained by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992).

Therefore, the Board concludes that the competent and probative evidence of record persuasively weighs against a finding that the Veteran's chronic bronchitis warrants a compensable rating under DC 6600. As such, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

4. Service connection for left lower inflammatory arthritis

5. Service connection for right lower inflammatory arthritis

6. Service connection for a respiratory condition secondary to chronic bronchitis

The Veteran contends that he has bilateral lower inflammatory arthritis which is due to service and a respiratory condition secondary to service-connected chronic bronchitis. See September 2024 VA Form 21-526EZ.

Legal Criteria

Service connection

Establishing direct service connection generally requires competent evidence showing: (1) the existence of a current 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. 38 U.S.C. §§ 1110, 1131; Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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).

Establishing service connection on a secondary basis requires evidence sufficient to show that: (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310. Secondary causation exists when, but for the service-connected disability, the non-service-connected disability was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain. Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023) (citations omitted). Secondary aggravation exists when the non-service-connected disability not caused by a service-connected disability would be less severe were it not for a service-connected disability. Id. at 1364. For example, secondary aggravation may be established where the natural progression of the non-service-connected disability could have been arrested or improved but for the service-connected disability. Id.

In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319 (2007).

Benefit of the doubt rule

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

Evidence and Analysis

The January 2023 rating decision included favorable findings. Regarding the bilateral lower inflammatory arthritis condition, the AOJ found that the claimed primary disability of bilateral ankle degenerative arthritis is service-connected. Regarding the respiratory condition, the AOJ found that the Veteran's claimed primary disability of chronic bronchitis is service-connected. These findings are binding on the Board. 38 C.F.R. § 3.104.

The AOJ noted in the December 2024 rating decision on appeal that the Veteran did not currently have a diagnosis of, or similar to, bilateral lower inflammatory arthritis, or a diagnosis of a respiratory condition secondary to chronic bronchitis.

The Board has reviewed the Veteran's treatment records and service treatment records. There are no medical treatment records, either VA or private, that indicate an established diagnosis of, or similar to, bilateral lower inflammatory arthritis or a diagnosis of a respiratory condition secondary to chronic bronchitis disability diagnosis of any sort. See four January 2015, two February 2015, two April 2015, a May 202, two June 2023, a July 2023, two August 2023, an October 2023, a January 2024, and a September 2024 CAPRI records; see also an April 2020 and July 2023 Medical Treatment Record - Non-Government Facility, and two December 2023 Medical Treatment Record - Government Facility.

Additionally, the Board notes that VA examinations completed for the ankle and the respiratory conditions in December 2024 did not provide a diagnosis for these claimed conditions. See December 2024 VA ankle and respiratory examinations; see also December 2024 bilateral ankle radiological report.

In the absence of proof of a current disability, there is no valid claim of service connection for the claimed conditions on either a direct or secondary service connection basis. Indeed, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328 (1997); Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). At no time during this period on appeal was competent medical evidence of record regarding a diagnosis of, or similar to, bilateral lower inflammatory arthritis, or a respiratory condition other than chronic bronchitis submitted within either the private or VA treatment record.

As the threshold element of a service connection claim (a current disability) has not been met, service connection for bilateral lower inflammatory arthritis or a respiratory condition secondary to chronic bronchitis must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992).

In reaching this decision, the Board has considered the Veteran's assertions that he has the above claimed conditions. While the Board notes that the Veteran is competent to report the symptoms which he experiences and what he is told by medical providers, there is no evidence of record to suggest that the Veteran has the medical training or expertise to opine on the diagnosis or etiology of the claimed conditions. This is a complex question of nature and medical severity that falls outside the realm of the common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

The Board has also considered the doctrine of reasonable doubt; however, as the most persuasive evidence of record is against the Veteran's claims, the doctrine is not for application. As such, these claims are denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (providing that only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).

REASONS FOR REMAND

1. Entitlement to service connection for left ankle sprain is remanded.

2. Entitlement to service connection for left ankle sprain is remanded.

The Veteran contends that he has a diagnosis of bilateral ankle sprain that is due to service. See September 2024 VA Form 21-526EZ.

Legal Criteria

The legal criteria for direct service connection, secondary service connection, and benefit of the doubt are discussed above.

Evidence and Analysis

The Veteran was provided with an in-person December 2024 VA ankle examination. The examiner did not indicate a diagnosis of ankle sprain but noted diagnoses of bilateral tendinitis, bilateral tendinopathy, and bilateral bursitis. In the remarks section, the examiner specifically noted that the Veteran's bilateral ankle sprains were not provided a diagnosis because there are no findings, signs, or symptoms to support a diagnosis.

Based on the December 2024 VA ankle examination, the examiner provided a December 2024 medical opinion.
See September 2024 VA Form 21-526EZ.

Legal Criteria

The legal criteria for direct service connection, secondary service connection, and benefit of the doubt are discussed above.

Evidence and Analysis

Based on the December 2024 VA ankle examination, the examiner provided a December 2024 medical opinion. The examiner did not provide a direct service connection medical opinion. As it relates to secondary service connection, the examiner opined that the claimed conditions were less likely than not proximately due to or the result of the Veteran's service-connected conditions. As rationale, the examiner noted that there was "no pathology to warrant a diagnosis."

The Board finds the December 2024 VA ankle medical opinion inadequate as it noted no pathology to warrant a diagnosis. However, the Veteran's VA treatment record notes a February 2023 medical note that indicates a history of chronic bilateral ankle sprain. A December 2014 medical note also indicates recurrent ankle sprain. See September 2024 CAPRI record. Additionally, the Veteran service treatment records indicate a left ankle sprain during service in December 1996 April 1997. See November 2014 STR-Medical. Thus, the December 2024 medical opinion was based on an inaccurate factual premise regarding secondary service connection. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). Additionally, the VA examiner did not provide a direct service connection medical opinion. Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (a medical examiner must provide a rationale that relates to a Veteran's "particular medical condition and circumstances"). As such, the October 2024 VA ankle medical opinion is inadequate.

There are no other private or VA examinations or medical opinions of record.

While the Board regrets the additional delay this remand brings, there are no adequate medical opinions regarding direct or secondary service connection of record and the AOJ's failure to obtain an adequate medical opinion is a pre-decisional duty to assist error. 38 U.S.C. § 5103A; 38 C.F.R. § 20.802. The Board finds this claim must be remanded to correct the pre-decisional duty to assist error and to obtain an adequate VA medical opinion.

In providing this remand, the Board makes no determination, express or implied, regarding the credibility of any statements within the record. Smith v. Wilkie, 32 Vet. App. 332 (2020).

The matters are REMANDED for the following action:

Please schedule the Veteran for an in-person examination and medical opinion with a NEW clinician regarding the nature and etiology of the Veteran's bilateral ankle sprains to include as secondary to bilateral ankle degenerative arthritis with bursitis and tendinitis. The entire claims file, including this remand, must be made available to the clinician and have been reviewed by the clinician in conjunction with this request.

For the purpose of providing the opinion requested, please acknowledge, and discuss:

(a.) Acknowledge that the clinician has reviewed the medical treatment record indicating a history of chronic bilateral ankle sprains.

(b.) Whether it is at least as likely as not (meaning approximate balance or is nearly equal) that the Veteran's bilateral ankle sprains were incurred in or due to the Veteran's service to include during training events and/or during deployments.

(c.) Whether it is at least as likely as not (meaning approximate balance or is nearly equal) that the Veteran's bilateral ankle sprains were incurred secondary to the Veteran's service-connected bilateral ankle degenerative arthritis with bursitis and tendinitis.

(d.) Whether it is at least as likely as not (meaning approximate balance or is nearly equal) that the Veteran's bilateral ankle sprains were aggravated or worsened by the Veteran's service-connected bilateral ankle degenerative arthritis with bursitis and tendinitis.

(e.) Adequately address all lay, spouse, and buddy statements of record including any statements, either orally or in writing, made as part of this new in-person medical opinion. A mere indication that the lay statements of record have been reviewed is not sufficient. Should the statements of record or the statement provided as part of the VA medical opinion be discounted, a fully explained medical reasoning for discount
service-connected bilateral ankle degenerative arthritis with bursitis and tendinitis.

(f.) Consistent with Lynch v. McDonough, 21 F.4th 776, 781-82 (2021), the clinician is advised that the term "at least as likely as not" means that the likelihood is at least approximately balanced or nearly equal, if not higher.

The term "aggravation" means any incremental increase in disability or any additional impairment of earning capacity of a disability, regardless of permanence, at any time during the period on appeal. If aggravation is found, please identify, to the extent possible, the baseline level of disability prior to the aggravation.

The examiner is advised that the Veteran is competent to report symptoms and injuries, as well as diagnoses provided to him by physicians, and that his or her reports (lay observations) must be considered in formulating the requested opinion.

If the Veteran's statements are discounted, the examiner should provide a full, medically explained reason for doing so. The Veteran's statements or lay statements may not be discounted solely on the basis of the lack of confirmation in the medical or service records.

The examiner may not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions.

A complete and fully explanatory rationale must be provided for any and all opinions expressed. If the examiner finds that the requested opinion cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training.

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When responding, regardless of whether favorably or unfavorably, it is essential the examiner provide rationale preferably citing to evidence in the file and/or accepted medical authority in order to support the conclusions asserted. An unsupported medical opinion will carry negligible probative weight.

Colleen M. Glaser-Allen

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Daniel Stephens, 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.

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