Citation Nr: 1339864 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-19 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for flat feet. 2. Entitlement to service connection for right hip strain. 3. Entitlement to service connection for inguinal pain. 4. Entitlement to service connection for a right knee condition. 5. Entitlement to service connection for sinus problems. 6. Entitlement to service connection for bilateral tendonitis. 7. Entitlement to service connection for acute gastritis. 8. Entitlement to service connection for Tietze's Syndrome. 9. Entitlement to service connection for a skin condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2007 to June 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board notes that the Veteran's claim for entitlement to service connection for sleep apnea and entitlement to service connection for insomnia were denied by the RO in a January 2013 decision. The Veteran has not filed a Notice of Disagreement (NOD). Therefore, these issues are not before the Board at this time. See 38 U.S.C.A. §§ 20.201, 20.202. Moreover, the Board has characterized the issues, formerly claimed as xerosis cutis and folliculitis, as service connection for a skin disorder, to address all possible skin disorders. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's flat foot was incurred in service. 2. The evidence does not show that the Veteran has a current disability regarding the following, at this time: a right hip strain, inguinal pain, a right knee condition, sinus problems, bilateral tendonitis, acute gastritis, Tietze's Syndrome, or a skin disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for flat feet have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 2. The criteria for service connection for a right hip strain have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 3. The criteria for service connection for inguinal pain have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 4. The criteria for service connection for a right knee condition have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 5. The criteria for service connection for sinus problems have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 6. The criteria for service connection for bilateral tendonitis have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 7. The criteria for service connection for acute gastritis have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 8. The criteria for service connection for Tietze's Syndrome have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 9. The criteria for service connection for a skin disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a)(2013). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Significantly, service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board will first address the issue of entitlement to service connection for flat feet. The Veteran's feet were found to be clinically normal at the December 2006 entrance examination, and it was specifically noted that she had normal arch of the feet. There was no specific finding or diagnosis of flat feet. As such, the Board finds that flat feet were not noted at entry into service and the Veteran is therefore presumed to have been in a sound condition. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Service treatment records in July 2007 note the Veteran had flat feet, and in December 2007, the Veteran was provided with orthotic devices. The April 2008 separation examination again noted flat feet. Subsequently, at the November 2008 VA examination, the examiner also found that the Veteran had flat feet, but he also indicated that the Veteran's condition was congenital in nature. Given the Veteran is presumed to have been sound at entry and because the record reflects that the Veteran experienced flat feet during active service and is currently diagnosed with flat feet, her flat feet are thus attributed to active service. Resolving reasonable doubt in favor of the Veteran, a grant of service connection for flat feet is therefore warranted. See 38 C.F.R. §§ 3.102, 3.303, 3.304. Turning to the remaining issues on appeal, the Board will now address service connection for a right hip strain, inguinal pain, and a right knee condition. The Veteran contends that these conditions are a result of injuries she sustained during physical training when she fell while running. She reported completing physical therapy after sustaining these injuries. With regard to the Veteran's right hip strain, the Veteran was diagnosed with a right hip strain at the November 2008 general VA examination; her hip flexion was measured at 120 degrees. However, by the October 2012 hip and thigh VA examination, no current or past hip condition was identified. The examiner acknowledged the Veteran's treatment history, including physical therapy for the right hip, and her report of experiencing pain four to five times per week at that time. Upon physical examination, the Veteran was observed to have a normal gait with no functional limitation. The examiner also reviewed available diagnostic test results and found degenerative or traumatic arthritis was not documented. Specifically, the evidence of record contains an October 2012 normal right hip series from in which no bony, joint, or soft tissue abnormality was noted, and there was no fracture or dislocation identified. Moreover, on range of motion testing, the Veteran initially had right hip flexion of 20 degrees, although she was observed at greater than 90 degrees of flexion when putting on her shoes. In this regard, it is important for the Veteran to understand that such findings by an examiner do not simply provide evidence against this claim, but all claims before the VA, undermining the Veteran's credibility with the Board. Furthermore, the Board notes that "pain" alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. VA needs to identify a "disability", not symptoms of a disability. There is simply no objective evidence establishing a right hip disability in the present appeal. Indeed, the only post-service records related to any hip condition are March 2009 through May 2009 physical therapy notes, in which the Veteran's diagnosis is listed as "hip pain." Accordingly, the service connection criteria requiring the presence of a current "disability" have not bee met and service connection cannot be granted for symptoms of a disability. See Brammer, 3 Vet. App. at 225. The Board acknowledges the representative's contention in the October 2013 brief, specifically, that the Veteran continues to complain of hip pain and that in-service physical therapy must have indicated a "serious problem" related to the hip. However, as discussed, service connection cannot be granted for pain alone. With regard to the in-service physical therapy, the Veteran's claims file was reviewed by the October 2012 examiner, and she specifically noted the Veteran completed physical therapy. Nonetheless, she still found that the Veteran did not have a current right hip disability. Similarly, the Veteran's claim for inguinal pain also has not manifested in a current disability. In both the November 2008 and October 2012 examinations, the Veteran's inguinal pain was discussed in the context of her claimed right hip strain. Again, there was no diagnosis or identification of an underlying malady or condition that would warrant service connection for an inguinal condition. With regard to the Veteran's right knee condition, in the November 2008 VA examination, the Veteran herself stated that the condition had resolved and had "no current issues with it." The examiner affirmed the right knee condition had resolved, noting there was no swelling, locking, or buckling. Subsequently, in January 2010, the Veteran reported knee pain when seeking treatment at the Biloxi VAMC. Upon examination, she was diagnosed with bilateral knee pain and instructed to rest. However, the Veteran indicated she had only experienced such pain for the past month, without any reference to the in-service fall in 2007. Such histories reported by the Veteran for treatment purposes are of more probative value than more recent assertions and histories given for VA disability compensation purposes. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Therefore, the Veteran herself has provided evidence against her own claim that she has a current right knee condition as a result of her 2007 fall. Now, the Board will consider entitlement to service connection for sinus problems. At the Veteran's November 2008 examination, the examiner diagnosed allergic rhinitis without evidence of acute or chronic sinusitis. The Veteran herself indicated that she experiences seasonal allergies and has taken Claritin with positive results. There is no other current diagnosis, treatment or complaint of sinusitis in the record. Significantly, when establishing care at the Biloxi VA Medical Center in September 2008, the Veteran reported several conditions and specifically referenced a 2007 in-service fall, but she did not report any symptoms related to sinusitis, providing highly probative evidence against her own claim that she has a current sinus disability related to active service. See Rucker, 10 Vet. App. at 73. Next, at the November 2008 VA examination, the Veteran's bilateral tendonitis, acute gastritis, and Tietze's Syndrome (costochondritis), which manifested in service, were all found to be resolved without residuals since separation. With regard to the bilateral tendonitis, the Veteran reported being treated for shin splints in service, but she indicated significant improvement since she stopped wearing combat boots. She also reported she had a normal x-ray of both tibias and fibulas within a few months of the examination. The Board notes that the Veteran is competent to report what she was told by a Doctor regarding her diagnosis. See Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007). With regard to the acute gastritis and Tietze's syndrome, the Veteran reported no current treatment or complaints regarding either condition at the November 2008 examination. In addition, the evidence of record contains two chest examinations from July 2012 which showed no acute disease of the chest. Specifically, the report noted the Veteran's lung fields were well expanded and clear. The cardiac silhouette was also unremarkable and the diaphragms and bony thorax were within normal limits. A review of the subsequent treatment records show no other treatment, symptoms, or complaints related to bilateral tendonitis, acute gastritis, or Tietze's Syndrome. When establishing post-service care at the Biloxi VAMC, the Veteran again did not indicate any symptomatology related to any of these three conditions, providing more evidence against her own claim. See Rucker, 10 Vet. App. at 67. Turning to the Veteran's claim for service connection for a skin disorder, the best evidence of record shows that the Veteran does not currently experience xerosis cutis, folliculitis, or any other disability. The Veteran was afforded a VA skin examination in October 2012 in which the examiner found that the Veteran did not have a skin condition at that time. The examiner specifically concluded that there were no objective findings of folliculitis The Board notes that the Veteran was diagnosed with folliculitis in the November 2008 examination. However, the October 2012 examiner addressed the diagnosis of folliculitis at the conclusion of the examination, acknowledging that a June 2007 treatment record indicated the Veteran had a "bump" on her genital area, which was diagnosed as folliculitis. Yet, the Veteran indicated in the November 2008 examination that she was diagnosed with folliculitis on her neck and face, a symptom she is competent to report and observe. See Jandreau, 492 F.3d. at 1372. Therefore, the Veteran's more recently-reported history of her symptoms is inconsistent with the other lay and medical evidence of record. The Veteran's in-service history of symptoms at the time of service is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Moreover, upon a thorough physical examination of the Veteran, and taking into consideration the reports of the Veteran herself, the October 2012 examiner concluded that the Veteran did not suffer from any skin condition. As described, the Veteran herself reported in the December 2008 examination reported that her folliculitis was on her neck and face, which is inconsistent with both the service treatment records and the findings of the October 2012 examination. In short, the VA examiner based the conclusion rendered in the October 2012 examination report on a review of the claims file as well as a review of the Veteran's documented and reported history. The examiner provided a conclusion with a supportive rationale, and the October 2012 VA medical opinion is therefore probative. See Nieves -Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the representative's argument in the October 2013 brief stating that the Veteran reported symptoms of bumps on her neck and face and that she used topical cream for a condition, but the bumps left dark sports. The representative stated the Veteran's condition was not identified with a clear diagnosis by the examiner. Because the November 2008 examiner diagnosed folliculitis, the Board will assume the representative was referring the October 2012 examination. However, as discussed, the October 2012 examiner did address the Veteran's reported symptoms by finding, after completing a physical examination, that she did not have any skin condition at that time; there was no notation of any dark spots on the skin. Therefore, the best evidence does not establish a current skin disorder, to include xerosis cutis or folliculitis. In sum, there is simply no objective evidence establishing a disability in the form of a right hip strain, inguinal pain, a right knee condition, sinus problems, bilateral tendonitis, acute gastritis, Tietze's syndrome, xerosis cutis, or folliculitis at this time, or evidence which outweighs a finding that the Veteran has these problems at this time. At this time, there is simply no "disability" for the VA to service connect. Accordingly, the service connection criteria requiring the presence of a current "disability" have not bee met and service connection cannot be granted. See 38 U.S.C.A. § 1110; Rabideau, 2 Vet. App. at 141; Brammer, 3 Vet. App. at 225. Moreover, even considering in-service treatment for each of these conditions, the preponderance of the evidence is against a finding that any current symptoms experienced by the Veteran are related to any in-service injuries or events from six years ago, including a fall she sustained while running. First, the Veteran's April 2008 separation examination indicates she was "released without limitation." Specifically, the Veteran's reflexes, lungs, nose, ears, and bowel were all described as normal. Additional April 2008 treatment notes indicate the Veteran demonstrated no symptoms in the hip or knees limiting ADLs, and a review of the musculoskeletal system did not result in any conditions or diagnoses of the musculoskeletal system. The service treatment records therefore provide factual evidence against the Veteran's claim. Furthermore, as explained above the Veteran is found to be sometimes a poor historian when relating detailed of her alleged conditions, undermining some her claims with VA. In short, the Veteran's statements are outweighed by other, more probative evidence of record. Unlike the claim for flat foot, the evidence simply does not show that the claimed disabilities exist at this time, let alone that they are related to active service. Thus, the Board finds that a preponderance of the evidence is against the claim for entitlement to service connection for a right hip strain, inguinal pain, a right knee condition, sinus problems, bilateral tendonitis, acute gastritis, Tietze's Syndrome, xerosis cutis, and folliculitis, and the claim as to all of these issues must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013); Gilbert, 1 Vet. App. at 49. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). For service-connection claims, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the present appeal, the VCAA duty to notify was satisfied by an August 2008 letter. Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In addition, examinations were performed in November 2008 and October 2012 to address the Veteran's claimed disabilities. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009). Here, there are no apparent inconsistencies or ambiguities in the examination reports, and the Veteran has not specifically challenged their adequacy or thoroughness, or the competency of the examiner. Although the representative has indicated that another VA skin examination is warranted to provide a diagnosis for a skin condition based on the Veteran's reported symptoms during the October 2012 examination, as discussed above, the examiner took into consideration the Veteran's statements, performed a thorough examination, and could not confirm the presence of a current skin disability. Accordingly, VA's duty to provide a VA examination is satisfied. Moreover, despite the August 2008 VCAA letter, the Veteran did not provide any additional evidence to establish she has a current disability related to active service. In this regard, it is important for the Veteran to understand that the "duty to assist" is not a one-way street. See Olsen v. Principi, 3 Vet. App. 480 (1992). Based upon the foregoing, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for flat feet is granted. Entitlement to service connection for right hip strain is denied. Entitlement to service connection for inguinal pain is denied. Entitlement to service connection for a right knee condition. Entitlement to service connection for sinus problems is denied. Entitlement to service connection for bilateral tendonitis is denied. Entitlement to service connection for acute gastritis is denied. Entitlement to service connection for Tietze's Syndrome is denied. Entitlement to service connection for a skin disorder is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs