Citation Nr: 23017448
Decision Date: 03/21/23	Archive Date: 03/21/23

DOCKET NO. 10-47 891
DATE: March 21, 2023

ORDER

Entitlement to an increased rating in excess of 10 percent for status post comminuted fracture of the left distal radius (hereinafter "left wrist disability") is denied.

Entitlement to an increased rating of 20 percent from July 9, 2009, for status post fracture of the left distal fibula (hereinafter "left ankle disability")  is granted.

Entitlement to an increased rating in excess of 20 percent for status post fracture of the left distal fibula (hereinafter "left ankle disability") is denied.

Entitlement to special monthly compensation (hereinafter "SMC") under 38 U.S.C. ง 1114 (s) is granted. 

Entitlement to service connection for a low back disability is denied.

Entitlement to service connection for a cervical spine disability is denied.

Entitlement to service connection for a bilateral elbow disability, to include joint pain and arthritis, is denied.

Entitlement to service connection for a bilateral shoulder disability, to include joint pain and arthritis, is denied.

Entitlement to service connection for a right ankle disability, to include joint pain and arthritis, is denied.

Entitlement to service connection for a right knee disability, to include joint pain and arthritis, is denied.

Entitlement to an increased rating for a right hip disability, to include joint pain and arthritis, is denied.

Entitlement to service connection for a right wrist disability, to include joint pain and arthritis, is denied.

Entitlement to service connection for a bilateral foot disability, to include joint pain and arthritis, is denied.

REMANDED

Entitlement to service connection for sinusitis is remanded.

Entitlement to service connection for asthma is remanded.

Entitlement to service connection for bronchitis is remanded.

REFERRED

Entitlement to revision of a 1998 rating decision for failing to grant the reasonably raised claim of service connection for a left wrist residual nonunion of the ulnar styloid based on clear and unmistakable error (CUE) is referred. 

FINDINGS OF FACT

1. The Veteran is currently in receipt of the highest disability rating under Diagnostic Code 5215 for residuals of a left wrist disability and the evidence does not reflect that the Veteran has ankylosis, or functional ankylosis, of the left wrist.

2. The Veteran manifests marked limitation of motion of the left ankle throughout the period on appeal. 

3. The Veteran's left ankle disability did not manifest in ankylosis, to include functional ankylosis during a flare-up, throughout the period on appeal. 

4. The Veteran is in receipt of a 100 percent rating for a service-connected disability, and other separate and distinct service-connected disabilities are independently ratable at 60 percent. 

5. The Veteran's low back disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease.

6. The Veteran's cervical spine disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease.

7. The evidence of record persuasively weighs against finding that the Veteran has had a bilateral elbow disability at any time during or approximate to the pendency of the claim.

8. The Veteran's bilateral shoulder disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease or a service-connected disability. 

9. The Veteran's right ankle disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease or a service-connected disability.

10. The Veteran's right knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease or a service-connected disability.

11. The Veteran's right hip disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease or a service-connected disability.

12. The Veteran's right wrist disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease or a service-connected disability.

13. The Veteran's bilateral foot disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease or a service-connected disability.

CONCLUSIONS OF LAW

1. The criteria for an increased rating in excess of 10 percent for a left wrist disability have not been met. 38 U.S.C. งง 1155, 5107; 38 C.F.R. งง 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a. Diagnostic Codes 5214, 5215.

2. The criteria for an increased rating of 20 percent from July 9, 2009, for a left ankle disability have been met. 38 U.S.C. งง 1155, 5107; 38 C.F.R. งง 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271.

3. The criteria for an increased rating in excess of 20 percent for a left ankle disability have not been met. 38 U.S.C. งง 1155, 5107; 38 C.F.R. งง 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271.

4. The criteria for SMC based under 38 U.S.C. ง 1114 (s) have been met. 38 U.S.C. ง 1114; 38 C.F.R. ง 3.350.

5. The criteria for service connection for a low back disability have not been met.  38 U.S.C. งง 1112, 1113, 1131, 1137, 5107; 38 C.F.R. งง 3.102, 3.303, 3.307, 3.309.

6. The criteria for service connection for a cervical spine disability have not been met.  38 U.S.C. งง 1112, 1113, 1131, 1137, 5107; 38 C.F.R. งง 3.102, 3.303, 3.307, 3.309.

7. The criteria for service connection for a bilateral elbow disability have not been met.  38 U.S.C. งง 1112, 1113, 1131, 1137, 5107; 38 C.F.R. งง 3.102, 3.303, 3.307, 3.309, 3.310.

8. The criteria for service connection for a bilateral shoulder disability have not been met.  38 U.S.C. งง 1112, 1113, 1131, 1137, 5107; 38 C.F.R. งง 3.102, 3.303, 3.307, 3.309, 3.310.

9. The criteria for service connection for a right ankle disability have not been met.  38 U.S.C. งง 1112, 1113, 1131, 1137, 5107; 38 C.F.R. งง 3.102, 3.303, 3.307, 3.309, 3.310.

10. The criteria for service connection for a right knee disability have not been met.  38 U.S.C. งง 1112, 1113, 1131, 1137, 5107; 38 C.F.R. งง 3.102, 3.303, 3.307, 3.309, 3.310.

11. The criteria for service connection for a right hip disability have not been met.  38 U.S.C. งง 1112, 1113, 1131, 1137, 5107; 38 C.F.R. งง 3.102, 3.303, 3.307, 3.309, 3.310.

12. The criteria for service connection for a right wrist disability have not been met.  38 U.S.C. งง 1112, 1113, 1131, 1137, 5107; 38 C.F.R. งง 3.102, 3.303, 3.307, 3.309, 3.310.

13. The criteria for service connection for a bilateral foot disability have not been met.  38 U.S.C. งง 1112, 1113, 1131, 1137, 5107; 38 C.F.R. งง 3.102, 3.303, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1980 to April 1980 and from July 1980 to July 1983.

This is a complex case with a long procedural history, which has been outlined extensively in previous Board of Veterans' Appeals (Board) remands and decisions. Accordingly, the Board will only discuss the most recent and pertinent procedural history.

The Veteran appealed a June 2018 Board decision that denied service connection for back, neck, sinusitis, asthma, bronchitis, arthritis, and joint pain disabilities, among other claims, to the United States Court of Appeals for Veterans Claims (Court). In a May 2019 Order, the Court vacated and remanded the Board's decision as to the appealed issues, for proceedings consistent with a Joint Motion for Remand. In March 2021, the Board remanded service connection for a back disability for further development but denied service connection for the neck, asthma, bronchitis, sinusitis, arthritis, and joint pain disabilities. In that same decision, the Board denied an increased rating higher than 10 percent for a left wrist disability; and granted a 10 percent disability rating prior to March 26, 2019, and 20 percent thereafter for the left ankle disability.

The service connection claim for a back disability was again remanded in July 2021 and November 2021 for additional development to include obtaining adequate VA medical opinions. The Veteran appealed the Board's March 2021 decision pertaining to the denials of the above-listed issues to the Court. 

In a December 2021 Order, the Court vacated and remanded the March 2021 Board's decision as to the appealed issues. Regarding the neck claim, the Court determined that the Board erred in relying on an inadequate neck examination that did not consider and discuss the lay statements of continuing neck pain since service. With regards to the issue of service connection for arthritis and joint pain, the Court determined that the Veteran's statements at the January 2014 DRO hearing, reflected an intent to seek service connection for arthritis and joint pain of those other joints, and the Board was required to address them rather than just considering "general joint pain";  and that on remand, the Board must address whether the Veteran is entitled to service connection for arthritis and joint pain of the right ankle, feet, knees, right wrist, elbows, shoulders, and hips. The Court also noted that the Board failed to address the bilateral foot diagnoses that were reasonably raised as being within the scope of the Veteran's claim on appeal for symptoms of arthritis and joint pain. 

The Court further determined that the Board failed to comply with the previous joint motion for remand (JMR), which directed the Board to address the Veteran's December 2012 argument that his arthritis and joint pain is secondary to his service-connected left wrist disability. With regards to the Veteran's service connection claims for bronchitis, sinusitis, and asthma, the Court determined that the Board erred when it relied on the August 2017 VA examiner's opinion that the Veteran's in-service bronchitis resolved in April 1981 with no complaints. The Court stated that the opinion was inadequate because it failed to address the service treatment records (STRs) of recurrent respiratory and ENT complaints, to include in April 1981.With regards to the increased rating claims for a left ankle disability, the Court remanded for the Board to address whether the Veteran is entitled to higher ratings under Diagnostic Code 5262 and DC 5720 (which contemplates ankle ankylosis) based on lay evidence of the impact of flare ups on the Veteran's left ankle disability. With regards to the increased rating claim for a left wrist disability, the Court remanded for the Board to address the Veteran's lay evidence and to determine whether he is entitled to a rating under DC 5214 for ankylosis of the left wrist. 

The matter returned to the Board for actions consistent with the Court's Order in July 2022, and the Board remanded all issues for further development, to include obtaining updated treatment records and VA examinations and/or opinions. 

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

The record contains various statements and contentions that the Veteran's multiple physical and mental disabilities, some service connected and some not, pose challenges in employment. For example, the Veteran filed for social security benefits in 2010 for diabetes, neuropathy, back injury, and arthritis. With the exception of osteoarthritis of the left hip, the Veteran is not service connected for any of the listed disabilities. However, the Board will address whether entitlement to a total disability due to individual unemployability (TDIU) is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  

The evidence also shows that the Veteran was employed throughout most of the appeal period. While incarcerated until 2010, the Veteran held employment within the correctional system. From 2012 until at least April 2017, the Veteran reported owning a janitorial business. While he has reported that his physical impairments affect his work in this capacity at various times in the record, there is no indication that his service-connected tinnitus, left wrist, left ankle, left hip, left knee, hepatitis C, and abdomen scar render him unable to maintain his business.

Moreover, he is in receipt of a combined 100 percent rating as of February 2017 and has a 100 percent rating for hepatitis C from that date. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994) (citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990)). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period).

However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. ง 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. at 280 (analyzing 38 U.S.C. ง 1114 (s)); see also 75 Fed. Reg. 11,229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). 

There is no indication in the record that the Veteran is unable to secure and maintain substantially gainful employment by reason of his service-connected disabilities, either prior to 2017 or after (without consideration of his hepatitis C) nor does the Board find such Thus, while acknowledging the noted occupational impairments throughout the record, the Board finds that entitlement to a TDIU is not raised by the record. 

Finally, the Board notes that in a July 2019 written brief presentation, the Veteran alleged CUE in a 1998 rating decision. This motion has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Because a CUE motion must be initially adjudicated by the AOJ before the Board can exercise jurisdiction over the motion, the Board refers the issue to the AOJ for initial adjudication.

Increased Rating

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. ง 1155; 38 C.F.R. ง 4.1.

If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. ง 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. ง 4.3.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. ง 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range of motion testing. 38 C.F.R. ง 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Pain itself does not rise to the level of functional loss as contemplated by ง 4.40 and ง 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Id. at 43. Nonetheless, even when the background factors listed in ง 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. ง 4.71a; a separate or higher rating under ง 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of ง 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the ง 4.71a criteria.").

Under 38 C.F.R. ง 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. ง 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

1. Entitlement to an increased rating in excess of 10 percent for a left wrist disability

The Veteran's left wrist disability is currently rated as 10 percent disabling under Diagnostic Code 5215 for the entire appeal period. 

Normal range of motion for the wrist is 70 degrees of dorsiflexion (extension) and 80 degrees of palmar flexion. 38 C.F.R. ง 4.71, Plate I. Normal ulnar deviation is 45 degrees, while normal radiation deviation is 20 degrees. Id. 

Diagnostic Code 5215 provides for a maximum rating of 10 percent for limitation of motion of the wrist for either the dominant or non-dominant hand when dorsiflexion is less than 15 degrees or when palmer flexion is limited in line with the forearm. 38 C.F.R. ง 4.71a. A 10 percent rating is the maximum rating available under Diagnostic Code 5215.

Diagnostic Code 5214 pertains to ankylosis of the wrist. In the minor extremity, this is evaluated as follows: unfavorable ankylosis in any degree of palmar flexion or with ulnar or radial deviation (40 percent); unfavorable ankylosis in any other position (30 percent); or favorable ankylosis, defined as in 20 to 30 degrees of dorsiflexion (20 percent). 38 C.F.R. ง 4.71a, Diagnostic Code 5214. 

Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020). However, Diagnostic Codes 5215 and 5214 were not amended and remain the same both prior to February 7, 2021, and thereafter.

Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. As demonstrated by the medical evidence of record, including the March 2019 VA examination report, the Veteran is right-handed, and as such, a wrist disability rating for his non-dominant lefthand is applicable here. See 38 C.F.R. ง 4.69.

Ankylosis is an objective finding or symptom and not a diagnosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Notably, multiple definitions of "ankylosis" were discussed in Chavis including general medical dictionary definitions as follows: "[i]mmobility and consolidation of a joint due to disease, injury, or surgical procedure" (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 (33rd ed. 2019)), "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint" (citing STEADMAN'S MEDICAL DICTIONARY 95 (28th ed. 2006)) and "[a] stiffening or immobilization of a joint as a result of injury, disease, or surgical intervention" (citing CHURCHILL'S ILLUSTRATED MEDICAL DICTIONARY 91 (1989).

As noted above, the Veteran is already in receipt of the highest rating available based on range of motion.  To warrant a higher rating, the evidence would have to demonstrate some level of ankylosis.

The Veteran was afforded a VA examination for his left wrist in October 2009. On examination, it was noted that the course of the Veteran's disability was stable.  He had a fair response to treatment.  Pain, stiffness, weakness, incoordination, and decreased speed of joint motion was noted on examination.  The Veteran endorsed flare-ups after "picking up something heavy or twisting the wrist."  Pain was alleviated by Tylenol, Neurontin (taken for his non-service-connected peripheral neuropathy) and discontinuing the motion that caused the pain.  Decreased strength of 3/5 was noted on examination. There was objective evidence of pain on active motion.  The Veteran demonstrated dorsiflexion to 35 degrees; palmar flexion to 30 degrees; left radial deviation to 20 degrees; and ulnar deviation to 10 degrees.  There was objective evidence of pain following repetitive use.  However, there was no additional loss of motion.

VA treatment records from January 2011 document complaints of left wrist pain. A VA EMG consult from May 2013 showed evidence of median mononeuropathy across the wrist bilaterally affecting both sensory and motor fibers.  The findings were consistent with moderate carpal tunnel syndrome. There was also evidence of a mild polyneuropathy with slowing of conduction velocities in several nerves examined which suggested a diffuse process of mild demyelination.  The findings were thought to be consistent with an early diabetic polyneuropathy, for which the Veteran is not service-connected.  VA treatment records from June 2013 indicate that the Veteran was measured, fit, and issued wrist splints following the recommendations made post-EMG.  

At his January 2014 DRO hearing, the Veteran reported wearing a brace and gloves.  He endorsed pain, stiffness, swelling, and limited movement in his left wrist. 

On VA examination in February 2014, the Veteran reported having limited mobility in his left wrist. He denied experiencing flare-ups and had palmar flexion to 55 degrees with no objective evidence of painful motion; and dorsiflexion to 55 degrees with no objective evidence of painful motion.  There was no additional loss of motion on repetitive use. Muscle strength testing was normal and there was no ankylosis of either wrist.  

A VA examination report dated in August 2017 notes normal muscle strength in wrist flexion and extension. The Veteran endorsed flare-ups of the wrist and stated when his wrist flares, he tries to use it as little as possible.  The Veteran was afforded an additional VA examination for his left wrist disability in March 2019. At the time of examination, he reported a worsening in the course of his condition as he experienced increased pain, tingling, swelling, stiffness, and weakness. Regarding flare-ups, the Veteran reported increased pain, stiffness, and weakness.  According to the Veteran's statements, the loss of range of motion during a flare is variable, depending on how strenuously the joint is used.

On range of motion testing, the Veteran had palmar flexion to 40 degrees; dorsiflexion to 40 degrees; ulnar deviation to 25 degrees; and radial deviation to 20 degrees. Pain was noted on examination and found to cause functional loss in all ranges of motion. There was pain on palpation of the left wrist joint.  The Veteran was unable to perform repetitive use testing with at least three repetitions as a result of 8/10 pain and increased stiffness. No level of ankylosis of the wrist was found.  Specifically, the examiner found that the Veteran did not experience favorable ankylosis in 20 to 30 degrees dorsiflexion; extremely unfavorable ankylosis; or unfavorable ankylosis of any kind.  The Veteran's range of motion was the same on passive motion. 

A February 2019 VA treatment record reflects complete wrist range of motion.

In September 2022, the Veteran was re-examined and an opinion was rendered as to whether the Veteran's left wrist symptoms amount to functional ankylosis or the equivalent of fixation in palmar flexion or dorsiflexion, especially in light of the Veteran's reported pain and inability to move the wrist. Notably, the Veteran reported having a flare-up the day he was examined. Therefore, his active range of motion was the range during a flare-up. He was able to dorsiflex to 50 degrees and palmar flex to 35 degrees with pain. The ulnar deviated to 20 degrees and radial deviated to 15 degrees with pain. Passive range of motion testing was the same as active range of motion testing. The range of motion during this flare would be the most limited range the wrist experienced. Although his current range of motion as measured was significantly decreased compared to normal, there was still significant range of motion retained and, therefore, there was no indication of functional ankylosis. There was no equivalent of fixation in palmar flexion or dorsiflexion on examination. The Veteran reported increased pain during flares and that he avoided lifting and using his wrist; however, he did not report a complete inability to move his wrist. 

The September 2022 examiner further opined that there is no evidence of functional ankylosis at any point during the appeal period. In reviewing previous examination reports, in the March 2019 examination he reported increased pain, stiffness, and weakness during flares. His range of motion was decreased; while the flare-up range of motion was not provided, the Veteran reported that during flares the loss of range is variable, depending on how strenuously the joint was used. With repetitive use, he reported that at worst, he cannot move it at all due to pain and weakness. The duration of his symptoms was not provided. At the time of examination, he reported his flare-ups lasting approximately 30 to 60 minutes. The examiner determined that the Veteran's statement of immobility suggests that the degree of pain he experiences at times due to pain and weakness is such that he prefers not to move the wrist in order to avoid experiencing further pain rather than an inability to move the wrist. He currently reported his flares to be limited to an hour as long as he treated his wrist appropriately. This would not constitute a functional ankylosis but rather a response to acute pain and inflammation. Based on the history, physical examination, and review of the past records, the examiner concluded that there is insufficient evidence to indicate functional ankylosis.

The Board finds the September 2022 opinion to be highly probative as the conclusions are accompanied by thorough rationale based on clinical findings that are consistent with the evidence of record. Nowhere in the record throughout the period on appeal does it indicate that the Veteran experiences fixation of the wrist or immobility. While he has endorsed being unable to use or move his wrist at times due to pain and weakness, the September 2022 examiner provided a logical conclusion that these reports more likely attributed the lack of movement as a means to avoid pain rather than reflecting ankylosis. 

As noted above, under Diagnostic Code 5215, a 10 percent rating is warranted when palmar flexion is limited in line with the forearm or dorsiflexion is less than 15 degrees. The Veteran is currently in receipt of a 10 percent rating under this Diagnostic Code.  Higher ratings are not provided under Diagnostic Code 5215. Thus, a higher schedular rating for the wrist is only warranted when there is evidence of ankylosis, rated under 38 C.F.R. ง 4.71a, Diagnostic Code 5214. However, the most probative evidence does not demonstrate that his left wrist has been ankylosed at any time during the pendency of the claim.  No other diagnostic codes are appropriate for rating the Veteran's left wrist disability.

As the Veteran has been assigned the maximum schedular rating under 38 C.F.R. ง 4.71a, Diagnostic Code 5215, and does not qualify for a schedular rating under 38 C.F.R. ง 4.71a, Diagnostic Code 5214 for ankylosis, the Veteran's claim must be denied.

2. Entitlement to an increased rating of 20 percent from July 9, 2009, for a left ankle disability

3. Entitlement to an increased rating in excess of 20 percent for a left ankle disability

Disability ratings for ankle disabilities are assigned pursuant to Diagnostic Codes 5270-5274. 

On VA examination in October 2009, the Veteran reported pain in the left lower leg/ankle.  There was no fracture or history of deformity.  No assistive devices were needed for walking.  The Veteran's left ankle fracture was noted to affect motion of the joint. The Veteran endorsed flare-ups of the ankle in the form of pain which occurred daily, lasted hours, and were severe.  On examination, his gait was normal. There was no deformity, giving way, or instability.  Pain, stiffness, weakness, incoordination, and decreased speed of joint motion was noted. On range of motion testing, he had dorsiflexion to 10 degrees and plantar flexion to 20 degrees.  There was objective evidence of pain with active motion on the left side.  There was objective evidence of pain following repetitive motion but no additional limitations after three repetitions of range of motion.  No joint ankylosis was found.

VA treatment records from December 2010 and January 2011 note left ankle pain.  It was noted that prolonged ambulation, walking, and strenuous activities increased pain. The Veteran had full range of motion in the ankle. The remainder of the Veteran's VA treatment records document ankle pain and limited movement, but do not reflect immobility. 

On VA examination in February 2014, the Veteran reported wearing an ankle brace when he slept.  He took meloxicam for ankle pain and thought he had arthritis in his ankle.  He denied flare-ups.  On range of motion testing, he had left ankle plantar flexion to 30 degrees with no objective evidence of painful motion; and left ankle plantar dorsiflexion to 15 degrees with no objective evidence of painful motion.  He was able to perform repetitive use testing with no additional loss of motion.  Muscle strength testing revealed normal strength in the left ankle. There was no ankylosis indicated.  The Veteran did not use any assistive devices as a normal mode of locomotion.  Diagnostic testing did not reveal any abnormal findings.

The Veteran was afforded additional VA examination for his left ankle in March 2019. A diagnosis of status-post fracture left distal fibula was noted; arthritis was not diagnosed.  He reported daily pain, weakness, and stiffness. On examination, He endorsed symptoms of daily pain, stiffness, and weakness that were unrelieved by pain meds.  Regarding flare-ups, he reported increased pain and stiffness that limits his ability to walk.  He reported difficulty standing and walking for long periods.  On range of motion testing, he had dorsiflexion to 15 degrees and plantar flexion to 25 degrees.  Pain was noted on examination during both ranges of motion. There was objective evidence of localized tenderness or pain on palpation of the joint as well as pain with weight bearing and crepitus.  The Veteran was able to perform repetitive use testing; however, he had additional loss of motion.  He demonstrated plantar flexion to 20 degrees (0-45) and dorsiflexion to 10 degrees (0-20).  Pain and weakness were noted. Regarding flares and on repetitive use over time, the examiner noted that the Veteran's range of motion is variable, depending on how strenuously the joint is used.  He stated that, at worst, he cannot move his ankle at all due to pain and weakness, but there are other times where his range of motion loss is minimal. An antalgic gait on the left side was noted.  Muscle strength testing revealed 4/5 strength (active movement against some resistance).  There was no muscle atrophy and no ankylosis of any kind was demonstrated or observed.  Ankle instability or dislocation was not suspected. Constant use of a cane and regular use of a brace was noted.  The Veteran's passive range of motion was the same as active.

The Veteran was examined, and an opinion was obtained in September 2022. The examiner was asked to report all signs and symptoms necessary for evaluating the disability, to include whether there was any ankylosis, nonunion, malunion, or any impairment of the ankle. The examiner stated there was no ankylosis evident on examination, and 2014 and 2020 x-rays do not show nonunion or malunion of the fibula. The examiner stated he was unable to provide the functional impact of flare-ups or any additional limitation of motion in terms of degrees retrospectively for previous examinations. The functional impact of these flares is estimated based on the active ranges of motion on examination, the degree of current pain with active and passive range, as well as the general joint examination and detailed description of the flare-ups from the Veteran at the time. As all this information is not available on retrospective review of previous examination, the examiner determined it would not be possible to provide an opinion as to functional impact of flare-ups throughout the appeal period. 

The examiner further opined that, according to the Board remand, the definition of moderate limitation of the ankle joint is motion with less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and marked limitation of motion is motion with less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Based on this definition, the Veteran has moderate ankle symptoms. There is no clinical definition or criteria for categorizing joint symptoms as slight, moderate, or marked. This examiner would consider the Veteran to have moderate symptoms based on his degree of pain but also his functional ability. Despite pain, he reports being able to stand and walk for up to 20 minutes, which allows for the ability to perform activities of daily living. 

In the examination, the Veteran reported flares that occur every couple months lasting one to two days. During these flares, he has pain on movement and decreased range of motion. Notably, there is no indication from the Veteran that he is unable to move the ankle at all, even in the most severe flare-ups. The examination was conducted during a flare-up; though pain and lack of endurance significantly limited functional ability during these flares and resulted in decreased range of motion, he maintained some motion. No ankylosis was indicated.

The September 2022 examiner found no evidence of malunion of the fibula, nor is such indicated by other evidence of record. Thus, a rating under Diagnostic Code 5262 would not be warranted because a marked, moderate, or slight knee or ankle disability requires malunion of the fibula. 

Regarding a rating for ankylosis of the ankle, the Board finds that the evidence of record does not indicate ankylosis or functional ankylosis at any time throughout the appeal period. 

Ankylosis is an objective finding or symptom and not a diagnosis. Chavis, 34 Vet. App. 1. Notably, multiple definitions of "ankylosis" were discussed in Chavis including general medical dictionary definitions as follows: "[i]mmobility and consolidation of a joint due to disease, injury, or surgical procedure" (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 (33rd ed. 2019)), "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint" (citing STEADMAN'S MEDICAL DICTIONARY 95 (28th ed. 2006)) and "[a] stiffening or immobilization of a joint as a result of injury, disease, or surgical intervention" (citing CHURCHILL'S ILLUSTRATED MEDICAL DICTIONARY 91 (1989).

All medical evidence reflects some range of motion of the ankle. While the Veteran stated in the March 2019 examination that, at worst, he is unable to move his ankle due to pain and weakness, neither the March 2019 or September 2022 medical professionals (nor any of the Veteran's treating physicians) deemed this report to represent any sort of ankylosis. While the September 2022 VA examiner did not explicitly address the Veteran's March 2019 statement of immobility, the Board finds it significant that the September 2022 examination was conducted during a flare-up. Thus, presumably, the Veteran's disability picture would have been at its most severe at that time, yet some range of motion was still present. 

Because no ankylosis, functional or otherwise, is indicated in the record, Diagnostic Code's 5270 (ankle ankylosis), 5272 (subastragalar ankylosis), 5273 (malunion of os calcis or astragalus), and 5274 (astragalectomy) are not applicable. 

Thus, the sole remaining Diagnostic Code to consider is Diagnostic Code 5271. The Board notes that VA amended the criteria for Diagnostic Code 5271 effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the AOJ on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Board is not precluded, however, from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.

Unde Diagnostic Code 5271 prior to February 7, 2021, a disability rating of 10 percent is assigned for moderate limitation of motion of the ankle, and a disability rating of 20 percent was assigned for marked limitation of motion of the ankle. 38 C.F.R. ง 4.71a, Diagnostic Code 5272 (2020).

Under Diagnostic Code 5271 since February 7, 2021, a disability rating of 10 percent is assigned for moderate limitation of motion (defined as less than 15 degrees of dorsiflexion or less than 30 degrees plantar flexion) and a disability rating of 20 percent is assigned for marked limitation of motion (defined as less than five degrees dorsiflexion or less than 30 degrees plantar flexion). 38 C.F.R. ง 4.71a, Diagnostic Code 5271 (2021).

The terms "moderate" and "marked" are not defined in VA regulations prior to the regulatory change, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. ง 4.6. While there is no precise definition of moderate versus marked, the adjective marked and its related form markedly are defined as strikingly noticeable or conspicuous. Synonyms include striking, outstanding, obvious, and prominent. See marked, The American Heritage Dictionary of Idioms Dictionary.com http://dictionary.reference.com/browse/marked. Pertinent definitions for moderate include: (1) kept or keeping within reasonable or proper limits; (2) not extreme, excessive, or intense; and, (3) of medium quantity, extent, or amount. https://www.dictionary.com/browse/moderate. 

In consideration of the above evidence and definitions, the Board finds that, the evidence reasonably reflects marked limitation of motion under the prior Diagnostic Code 5271 throughout the appeal period. The Veteran has consistently reported severe flare-ups of lasting duration since 2009. He has reported daily pain, weakness, and stiffness consistently since 2009. He has also consistently reported that these symptoms cause functional impairment with his daily life, to include prolonged ambulation. While the Board has considered the September 2022 examiner's finding that the Veteran's disability picture is moderate, the finding is ultimately a legal one, and the Board finds that, in this instance, a higher rating is warranted. See 38 C.F.R. ง 4.7. These symptoms fit within the definition of strikingly obvious or prominent, and the Board finds these symptoms to be more than medium quantity, extent, or amount. 

In conclusion, the Veteran is entitled to a 20 percent rating under Diagnostic Code 5271 for the entirety of the appeal period for his left ankle disability. This is the highest rating available under Diagnostic Code 5271, and there are no other Diagnostic Codes that are applicable in this instance. Thus, the Veteran is entitled to a 20 percent rating, but no higher, for his left ankle disability from July 9, 2009. 

4. Entitlement to SMC under 38 U.S.C. ง 1114 (s)

The Board must consider entitlement to SMC when raised. Akles v. Derwinski, 1 Vet. App. 118 (1991). SMC is a monetary benefit that is paid for service-connected disabilities which result in impairment of the senses, loss or loss of use (of the extremities, creative organ, breast, or buttocks), or which render the veteran housebound or in need of the regular aid and attendance of another person. 38 U.S.C. ง 1114; 38 C.F.R. งง 3.350, 3.352.

SMC at the housebound rate is payable when a veteran has a single service-connected disability rated 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. ง 1114 (s); 38 C.F.R. ง 3.350 (i)(1). 

Here, the Veteran is 100 percent rated for hepatitis C and his additional service-connected disabilities, which are separate and distinct from hepatitis C, are independently ratable at 60 percent. As this award is not yet reflected in the Veteran's file, the Board grants the award. 

Service Connection

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. ง 1131; 38 C.F.R. ง 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. ง 3.303 (d).

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. ง 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Certain chronic diseases may be presumptively related to service. 38 C.F.R. ง 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran's separation from service. Arthritis is classified as "chronic diseases" under 38 C.F.R. ง 3.309.

Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997).

2. Entitlement to service connection for a low back disability

The Veteran contends that his diagnosed lumbar spine arthritis is related to service, to include the wear and tear caused by rigorous physical training, sports, exposure to the elements, and jumps as a paratrooper.

The Board in July 2022 deemed the December 2021 VA nexus opinion inadequate and remanded for a new opinion, which was obtained in September 2022. Diagnoses of degenerative arthritis and intervertebral disc syndrome since 2015, and spinal stenosis since 2021, were noted. In the examination, the Veteran could not recall a specific injury or inciting event for the back. He recalled experiencing back pain in service. Specifically, he recalled back pain while on planes waiting to jump with his parachute on. He recalled going to the aid station for back pain and receiving pain medication. The Veteran reported back pain after service, but that he did not receive treatment until approximately 1985, around two years after service, for treatment for back pain following a car accident.  

The examiner was specifically asked to consider the Veteran's contentions that wear and tear on his back from parachuting and military training, including carry heavy rucksacks, playing sports, and a fall during service while carrying a heavy rucksack, caused his low back disorder. The examiner reported that review of the STRs showed a negative enlistment examination. In June 1981, he sustained a fall on his head while carrying a rucksack, at which time he was diagnosed with a cervical strain or sprain. Back pain was not documented at that visit, and there were no follow-up visits. No visits for back pain were in the STRs. On the separation examination, he checked "no" to swollen or painful joints, arthritis, rheumatism or bursitis, and recurrent back pain. Therefore, evidence did not support a chronic back condition in service.

Post-service, a VA examination in March 1988 reflected complaints of back pain. The examination documented full range of motion with a normal x-ray. The examiner at the time noted low back pain that was not incapacitating along with date of onset of other conditions addressed such as his wrist and ankle fractures suggesting that his back pain started a few months prior. A comprehensive in-patient admission note in May 2000 at Hampton VAMC does not document back issues in the medical history and it was stated that he denied lower back pain. A normal back examination was documented. Initial notes at the Richmond VAMC in 2010 made no mention of back pain. He was diagnosed with intervertebral disc syndrome with radiculopathy and degenerative arthritis in 2015 at the age of 54. The evidence does not support an ongoing or chronic low back condition prior to 2015, which is over 30 years after separation. There is no evidence of a back injury or ongoing or recurrent back condition during service or of an ongoing back condition in the many years after service. Therefore, the examiner found, there is insufficient evidence to conclude that the current back condition is related to service. 

Regarding the Veteran's reports of back pain while carrying heavy rucksacks and parachuting, the examiner opined that these reports were consistent with the discomfort of maintaining an uncomfortable position for a significant period of time but does not constitute a chronic condition, as the pain was relieved when he was able to change position and jump. Further, there is no data to support the development of future back conditions long-term after parachute jumps in the absence of an acute injury. The examiner cited to medical literature to support this conclusion.

The Veteran was diagnosed with degenerative changes of the disc and spine at age 54, which is consistent with age-related degenerative changes. The examiner cited to medical literature showing the prevalence of back pain and degenerative changes with increasing age. Therefore, the examiner concluded that the Veteran's back disability is less likely than not caused by or incurred in service. 

The Board finds this opinion highly probative. It is based on a thorough review of the evidence of record and examination of the Veteran with citation to medical literature in support of each conclusion. The examiner appeared to take all evidence into consideration, including the Veteran's contentions. All prior opinions have been deemed inadequate in some regard by the Board or by the Court. The medical treatment records, while documenting the Veteran's disability, do not attribute the Veteran's current diagnosis to service. 

The Veteran is both competent to relay his observable symptoms, such as back pain, and has been previously found credible by the Board in that regard. While the Board acknowledges the Veteran's numerous lay statements throughout the record, in hearing testimony, correspondence, VA treatment records, and VA examinations, the etiology of arthritis and other orthopedic disabilities is a complex medical determination that requires medical expertise, outside the realm of common knowledge of a lay person such as the Veteran. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Hence, the Veteran is not competent to provide a nexus to service nor establish chronicity of arthritis in service or since discharge. 

The most probative evidence of record weighs against a finding that the low back disabilities are related to service or have been chronic since service. The examiner attributed the Veteran's back diagnoses to the aging process, citing medical literature. As concluded by the September 2022 examiner, there is no onset or manifestation of chronic arthritis in service nor within a year after discharge from service. Nor does the medical evidence support a finding of later development of back conditions absent an acute injury, which the Veteran did not recall at the examination and was not reflected in the STRs. 

There being no other evidence pertaining to nexus for the Board to consider, the Board finds that the elements of service connection for a back disability are not met. The claim is denied. 

3. Entitlement to service connection for a cervical spine disability

The Veteran contends his diagnosed cervical spine disability is related to his active service, specifically an in-service head injury as well as wear and tear caused by rigorous physical training, sports, exposure to the elements, and jumps as a paratrooper. 

In a September 2022 VA examination, a diagnosis of degenerative arthritis of the cervical spine since 2014 was noted. The examiner noted that the enlistment examination was negative. A June 1981 STR documents a fall directly on his head while carrying a rucksack that morning. He reported headache and neck pain and was diagnosed with a cervical sprain/strain. No follow-up visits were found and no other visits for neck pain or neck issues were found during service. The separation examination made no mention of neck pain. In 2009, the Veteran endorsed hurting his neck in service with a heavy backpack on. The examiner noted the 2014 hearing transcript wherein the Veteran contended that his arthritis was all related to his service as a paratrooper and carrying a heavy ruck sack and undergoing multiple jumps, though he recalled no specific jump injuries.

As of his initial primary care visit at Richmond VAMC in 2010, no mention of neck pain was made. At a VA examination in 2014, he reported intermittent neck pain and was diagnosed with degenerative arthritis of the spine. Evidence supports an acute neck injury, specifically cervical strain or sprain during service would have been expected to resolve without sequela. There is no evidence of ongoing or recurrent neck pain during service or in the many years after service. Although the Veteran has reported ongoing neck pain since service, in his more recent lay statements, the etiology of his reported neck pain is unclear as it was not reported to medical providers and was not necessarily related to his current neck condition. Although the Veteran is competent to report symptoms of pain, he is not able to diagnose the condition which was causing his neck pain years ago.

The examiner continued that with regard to the Veteran's belief that his current neck pain results from activities performed during service, there is no data to support the development of future neck conditions long-term after parachute jumps in the absence of an acute injury. The most likely cause of the Veteran's cervical spine arthritis diagnosed 30 years after service is age-related wear and tear. Therefore, the neck disability is less likely than not caused by or incurred in service.

The Board finds this opinion highly probative. It is based on a thorough review of the evidence of record and examination of the Veteran with citation to medical literature in support of each conclusion. The examiner appeared to take all evidence into consideration, including the Veteran's contentions. All prior opinions have been deemed inadequate in some regard by the Board or by the Court. The medical treatment records, while documenting the Veteran's disability, do not attribute the Veteran's diagnosis to service. 

The Veteran is both competent to relay his observable symptoms, such as neck pain, and has been previously found credible by the Board in that regard. While the Board acknowledges the Veteran's numerous lay statements throughout the record, in hearing testimony, correspondence, VA treatment records, and VA examinations, the etiology of arthritis and other orthopedic disabilities is a complex medical determination that requires medical expertise, outside the realm of common knowledge of a lay person such as the Veteran. See Kahana, 24 Vet. App. at 435. Hence, the Veteran is not competent to provide a nexus to service nor establish chronicity of arthritis in service or since discharge. 

The most probative evidence of record weighs against a finding that the cervical spine disability is related to service or has been chronic since service. The examiner attributed the Veteran's neck pain to the aging process, citing medical literature. As concluded by the September 2022 examiner, there is no onset or manifestation of chronic arthritis in service nor within a year after discharge from service. 

There being no other evidence pertaining to nexus for the Board to consider, the Board finds that the elements of service connection for a cervical spine disability are not met. The claim is denied. 

4. Entitlement to service connection for a bilateral elbow disability

5. Entitlement to service connection for a bilateral shoulder disability

6. Entitlement to service connection for a right ankle disability

7. Entitlement to service connection for a right knee disability

8. Entitlement to an increased rating for a right hip disability

9. Entitlement to service connection for a right wrist disability

10. Entitlement to service connection for a bilateral foot disability

The Veteran contends that the above-listed joint disabilities are related to his active service, specifically the wear and tear caused by rigorous physical training, sports, exposure to the elements, and jumps as a paratrooper. Alternatively, he has contended that they are secondarily caused or aggravated by his service-connected disabilities.

The Veteran has diagnosed disabilities for all the above-listed claims, with the exception of the bilateral elbows. For his shoulder, he has a diagnosed labral tear, arthritis, tendinopathy, and tendinosis. For his feet, he has bilateral pes planus, plantar fasciitis, hammer toes, and hallux rigidus. He has right hip and right knee arthritis, and right wrist degenerative arthritis. He has a right ankle strain. For these diagnosed disabilities, the first element of a current disability is met. 

With regard to the bilateral elbow claim, the Board acknowledges that pain can represent a disability if it causes functional impairment in earning capacity. However, in his recent September 2022 VA examination, the Veteran stated he had no current or recent pain in either elbow and did not recall having chronic elbow pain. As there is no indication in the record that the Veteran experiences pain in his bilateral elbows that causes impairment in earning capacity, the Board finds that no current disability exists for this claim. 

Nexus opinions were obtained pursuant to the last Board remand in September 2022. The examiner opined that there was a less than fifty percent probability that each diagnosed disability had its onset during service or was otherwise related to service. Review of the STRs showed a negative enlistment examination. In October 1981, the Veteran sought treatment for a left foot injury sustained playing football the previous day. He was diagnosed with a bruised left heel and treated with warm soaks. The same visit documented right knee lateral bruising which was also managed conservatively. An April 1983 record documented a heel blister. The examiner found that both the right knee bruising and the heel blister were acute injuries which would be expected to heal completely without long-term sequela. On the separation examination, the Veteran checked "no" to swollen or painful joints, arthritis rheumatism or bursitis, painful or trick shoulder, recurrent back pain, trick or locked knee, and foot trouble. There was no mention of an ongoing right ankle, bilateral foot, right knee, right wrist, bilateral elbow, bilateral shoulder, or right hip condition during service. 

For the right ankle, post-service right ankle pain is first found in a rheumatology note dated February 2019 where tenderness to palpation of "every single joint and myofascial plane" is noted with both ankles tender. He was diagnosed with a right ankle sprain at that visit. Evidence does not support an ongoing right ankle condition in service or in the many years after. There is insufficient evidence to conclude that it had its onset in or is otherwise related to service. 

For the bilateral feet, the first mention of foot pain is found in a 2010 initial primary care note. A 2011 podiatry note diagnosed plantar fasciitis. A 2019 podiatry note diagnosed pes planus and hallux rigidus for the first time. There is insufficient evidence to conclude that the bilateral foot conditions, which were diagnosed more than 25 years after separation, had their onset or are otherwise related to service. 

For the right knee, a March 1988 VA examination documents complaints of the right knee. However, no further details were given, and no diagnosis was rendered. The next documented right knee complaints were in 2010 (about 25 years after service). He has a current diagnosis of arthritis of the right knee; however, there is insufficient evidence to conclude that the current right knee condition had its onset or is otherwise related to service.

For the right wrist, there was no document of reported right wrist pain in service or post-service, and there was insufficient evidence to conclude that the current condition had its onset in or is related to service.

For the shoulders, the first mention of shoulder pain post-service was in 2013. He was subsequent diagnosed with shoulder diagnoses in 2015, 2021, and 2022. There is no evidence of any shoulder condition either during or in the years after service. There is insufficient evidence to conclude that the current bilateral shoulder condition had its onset in or is otherwise related to service. 

For the right hip, the Veteran reported he did not notice right hip pain until after his left hip replacement in 2020. The first mention of right hip pain is in a primary care note in 2022, almost 40 years after service. There is no evidence of a right hip condition either during or in the years after service. There is insufficient evidence to conclude that the right hip condition had its onset in or is otherwise related to service. 

The examiner further determined that it was less likely than not that the above-listed joint disabilities were secondarily caused or aggravated by a service-connected disability. She explained that according to the WSAIT (medical literature cited in the report), there is no evidence that injury in one lower extremity significantly impacts the opposing uninjured limb unless there is severe muscle injury causing paralysis of the injured leg, leg shortening of more than four to five centimeters, or a lurching gait. There is no documentation of any of this in the records. Medical records in 2011 and 2017 documented a normal gait. He had an antalgic gait in 2018, and the Veteran had a left hip replacement in 2020. Therefore, the Veteran did not have a longstanding significant or lurching gait as a result of any of his service-connected conditions which would have resulted in problems with the opposite limb.

Based on WSAIT findings, the service-connected left ankle disability did not cause or aggravate his right ankle condition, right knee, or right hip condition. There is no pathophysiologic mechanism by which an ankle condition would cause or aggravate a wrist or shoulder condition. His left ankle condition would not have caused or aggravated bilateral symmetrical foot conditions. 

Based on WSAIT findings, his left hip arthritis did not cause or aggravate his right ankle, right knee, or right hip conditions. There is no pathophysiologic mechanism by which a hip condition would cause or aggravate a wrist or shoulder condition. His left hip condition would not have caused or aggravated bilateral symmetrical foot conditions.

Based on WSAIT findings, his service-connected left knee strain did not cause or aggravated his right ankle, right knee, or right hip conditions, nor would it cause or aggravated bilateral symmetrical foot conditions. There is no pathophysiologic mechanism by which a knee condition could cause or aggravate a wrist or shoulder condition. There is no pathophysiologic mechanism by which a wrist condition could cause or aggravate an ankle, foot, knee, or hip condition. The left wrist injury did not cause or aggravate or otherwise affect the right wrist or shoulders.

The examiner attributed the Veteran's numerous arthritic conditions to wear and tear related to the aging process. His shoulder tendonitis is most likely due to overuse. 

The VA treatment records, while demonstrating complaints of joint pain, do not attribute the Veteran's diagnoses to service or his service-connected disabilities.

The Board acknowledges the Veteran's allegations of pain since service, and the submitted articles exploring the connection between combat load and musculoskeletal disabilities. As stated above, the Veteran is both competent to relay his observable symptoms, such as joint pain, and has been previously found credible by the Board in that regard. While the Board acknowledges the Veteran's numerous lay statements throughout the record, in hearing testimony, correspondence, VA treatment records, and VA examinations, the etiology of arthritis and other orthopedic disabilities is a complex medical determination that requires medical expertise, outside the realm of common knowledge of a lay person such as the Veteran. See Kahana, 24 Vet. App. at 435. Hence, the Veteran is not competent to provide a nexus to service nor establish chronicity of arthritis in service or since discharge. 

As pointed out by the 2022 examiner, almost all the Veteran's above-listed joint pain were not complained of until several decades post-service. While there is a complaint of right knee symptoms as early as 1988, this is still several years post-service. Chronicity was not shown during service for any of the above-listed disabilities, nor was it demonstrated within one year of service. Thus, the Board finds that continuity of symptoms of chronic arthritis of the joints is not demonstrated.

The Board also finds that a nexus has not been demonstrated, either on a direct or secondary basis. The 2022 examiner logically concluded that the onset of arthritis several decades post-service more likely reflects the aging process. The 2022 examiner was further unable to find any medical basis for finding that any of the Veteran's claimed musculoskeletal diagnoses are caused or aggravated by his service-connected disabilities. The Board finds these opinions to be highly probative. 

There being no other positive evidence on the matter of nexus to consider, the Board finds that the elements of service connection on a direct, secondary, and presumptive basis are not met. The Veteran has no current diagnosis of a bilateral elbow disability at any period approximate to the appeal. For all other above-listed joint claims, the evidence weighs against that they manifested as chronic conditions in or immediately after service, that they are directly related to service, or that they are caused or aggravated by service-connected disabilities. The claims must be denied.

REASONS FOR REMAND

1. Entitlement to service connection for sinusitis is remanded.

2. Entitlement to service connection for asthma is remanded.

3. Entitlement to service connection for bronchitis is remanded.

The Veteran contends that his respiratory disabilities, to include sinusitis, asthma, and bronchitis, are related to service, to include being in the gas chambers in service. Alternatively, he has contended that due to his service-connected left ankle, he is unable to exercise, and he is entitled to service connection for respiratory disabilities through obesity as an intermediary step. 

In a September 2022 VA examination, a diagnosis of allergic rhinitis as of 2012 was noted. The Veteran endorsed symptoms as long as he could remember. He recalled onset after gas chamber training but could not recall if he was treated in service. 

The examiner stated that the claims of asthma and bronchitis could not be assessed because the PFT's could not be conducted. Regarding the allergic rhinitis, the STRs made no note of allergies upon enlistment. In April 1981 he was treated for nasal congestion. He was seen again in November 1981 and was diagnosed with a viral upper respiratory infection. On his separation examination, he checked "no" to ear, nose, and throat trouble, chronic or frequent colds, sinusitis, hay fever, and the clinical examination was normal. Evidence does not support chronic or recurrent sinus-related symptoms in service. Post-service, he was seen in 1993 for an upper respiratory infection. A comprehensive mental health assessment at Hampton VAMC showed symptoms starting around 2005, suggesting that he was diagnosed with symptoms consistent with allergic rhinitis around 2005. He began treatment for his sinus-related symptoms around 2002, which was almost 20 years after separation. There is insufficient evidence to conclude that his allergic rhinitis either began in or is related to service. 

Following additional testing, the Veteran underwent another VA examination. A diagnosis of asthma was noted. In an addendum opinion, it was stated that there is no diagnosis for bronchitis, asthma, and sinusitis. There is no chronicity of asthma or treatment while in service; thus, the examiner was unable to connect that the claimed condition was acquired while in service. There was no indication for asthma treatment while in service. The Veteran's history of smoking was also noted, with no elaboration to its relevance. 

The Board finds this opinion inadequate. First, the rendered diagnoses are inconsistent and unclear. The Court found that the Board conceded a diagnosis of bronchitis based on 2019 VA treatment records showing bronchial wall thickening. The Veteran also has diagnoses of asthma and allergic rhinitis, which are documented in the VA treatment records. However, the examiner confusingly stated there was no diagnosis for bronchitis, asthma, and sinusitis. Second, the examiner did not specifically address the Veteran's contentions that his current conditions are related to in-service gas chamber training; instead, the examiner appeared to rely on the lack of chronicity since service which is an insufficient rationale. 

Finally, the raised theory of obesity as an intermediary step has not yet been addressed. The general requirements for direct and secondary service connection notwithstanding, obesity is not considered a disease or disability for VA purposes and is not subject to service connection. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). VA's Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a "disease" for the purposes of service connection under 38 U.S.C. งง 1110 and 1131, and whether obesity may be considered a disability for purposes of secondary service connection. In general, VAOPGCPREC 1-2017 concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. งง 1110 and 1131 and, therefore, may not be service connected on a direct or secondary basis.

However, the opinion noted that obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis. To meet this criterion, the Veteran must demonstrate that a previously service-connected disability caused him to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017); see also Walsh v. Wilkie, 32 Vet. App. 300, 306 (2020). As the Veteran has raised this theory, the Board finds that a medical opinion is required to consider whether this allegation from a medical standpoint.

While the Board regrets the additional delay, the respiratory claims must be remanded for the above reasons. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the efforts to provide an examination, an adequate examination must be provided); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (VA opinion must address all raised theories of entitlement).

The matters are REMANDED for the following action:

1. Obtain all outstanding VA treatment records. 

2. Then, obtain a VA examination for the Veteran's claimed respiratory disabilities. 

The examiner must conduct all necessary testing and identify all respiratory diagnoses. In rendering these diagnoses, the examiner must specifically consider and address prior diagnoses rendered in past examinations or in treatment records.

The examiner must opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed respiratory disabilities had onset in or are related to service, to include through in-service gas chamber training.

The examiner must also opine whether any diagnosed respiratory diagnoses are caused or aggravated by the Veteran's service-connected disabilities on a theory of obesity as an intermediary step. The examiner is requested to specifically answer the following:

(1) whether the Veteran's service-connected disability(ies) caused the Veteran to become obese/aggravated the Veteran's obesity (to include by way of lack of movement and inability to exercise); (2) if so, whether the obesity/aggravation of obesity as a result of the service-connected disability(ies) was a substantial factor in causing any current respiratory disability(ies); and (3) whether the respiratory disability(ies) would not have occurred but for the obesity caused or aggravated by the service-connected disability(ies). 

 

R. COSTELLO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Carroll, 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. ง 20.1303.