Citation Nr: 1414358 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 08-04 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a bilateral elbow. 2. Entitlement to service connection for a bilateral ankle disorder. 3. Entitlement to service connection for a skin disorder involving the feet, claimed as athlete's foot. 4. Entitlement to service connection for a left second toenail disorder. 5. Entitlement to service connection for a cervical spine disorder. 6. Entitlement to service connection for a lumbar spine disorder. 7. Entitlement to service connection for bilateral shin disorder, claimed as shin splints. 8. Entitlement to service connection for a digestive disorder claimed as irritable bowel syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran had active service from January 2001 to June 2005. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of July 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. A videoconference hearing was held by the undersigned Veterans Law Judge in July 2011. The hearing transcript has been associated with the claims record, which is now maintained by the Portland, Oregon RO. The issues of service connection for a bilateral shin disorder, claimed as shin splints, and service connection for a digestive disorder claimed as irritable bowel syndrome, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have a current bilateral elbow disorder, and the reported elbow to hand complaints have not been objectively verified. 2. The Veteran does not have a current bilateral ankle disorder, and the reported ankle complaints have not been objectively verified. 3. The Veteran does not have a current skin disorder affecting the feet, and the reported foot skin complaints have not been objectively verified. 4. The Veteran's current cervical strain is a known clinical disorder which was not manifest in service, was not caused or aggravated by a service-connected disability, and is unrelated to service. 5. The Veteran's current lumbar strain is a known clinical disorder which was not manifest in service, was not caused or aggravated by a service-connected disability, and is unrelated to service. 6. The Veteran's current left 2nd toenail disorder -- onychomycosis -- is a known clinical disorder which was not manifest in service and is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral elbow disorder are not met. 38 U.S.C.A. §§ 1110, 1117 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013). 2. The criteria for service connection for a bilateral ankle disorder are not met. 38 U.S.C.A. §§ 1110, 1117 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013). 3. The criteria for service connection for a skin disorder affecting the feet are not met. 38 U.S.C.A. §§ 1110, 1117 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013). 4. The criteria for service connection for a cervical spine disorder are not met. 38 U.S.C.A. §§ 1110, 1117 (West 2002); 38 C.F.R. §§ 3.303, 3.310, 3.317 (2013). 5. The criteria for service connection for a lumbar spine disorder are not met. 38 U.S.C.A. §§ 1110, 1117 (West 2002); 38 C.F.R. §§ 3.303, 3.310, 3.317 (2013). 6. The criteria for service connection for a left 2nd toenail disorder are not met. 38 U.S.C.A. §§ 1110, 1117 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA provided the Veteran with the required notice in April 2007. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; obtained VA medical opinions or examinations in June 2007 and December 2011; and afforded the Veteran the opportunity to give testimony before the Board. The VA medical opinions/examinations are adequate as they show consideration of the claims record and the Veteran's contentions, and render medical opinions in light of the evidence. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims record; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran's DD-214 indicates that she is a Persian Gulf Veteran. Service connection may be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability which cannot be attributed to any known clinical diagnosis but which instead resulted from an undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317. There are three types of "qualifying chronic disabilities" for the purposes of 38 C.F.R. § 3.317: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness defined by a cluster of signs or symptoms (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome); or (3) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. An "undiagnosed illness" is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. A "medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. In this decision, the Board has considered all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App.49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). Elbow, ankle, and foot skin disorder claims Service treatment records are silent for reference to elbow to hand problems and for reference to ankle problems. The Veteran was seen for tinea pedis or athlete's foot in service in February 2001. None of the claimed disorders was found on service examination in March 2005, shortly before the Veteran's June 2005 service discharge, and none was mentioned by the Veteran in her March 2005 report of medical history, except for skin problems. She denied having or having had elbow problems and impaired use of the arms and hands at the time. The only skin disease she acknowledged was acne. On in-service VA examination in May 2005, the Veteran's skin was clear of rashes and lesions. No elbow, ankle, or foot skin disorders have been diagnosed post-service. X-rays of the Veteran's ankles were normal in June 2007, and she had a full range of motion of all joints on VA evaluation in January 2009. On VA examination in December 2011, the Veteran was pertinently examined and was found to have no chronic disorder of either elbow; no chronic disorder of either ankle; and no skin condition affecting her feet. Based on the evidence, the Board finds that the Veteran does not have a current disorder of either elbow or ankle, or a current skin disorder affecting her feet. The Board's reasons for this conclusion are that no diagnoses have been shown post-service, including on VA examination in December 2011. In the absence of a current disability, service connection can not be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). Cervical and lumbar spine and left 2nd toenail claims Service treatment records are silent for reference to lumbar spine and left 2nd toenail problems. On service report of medical history in February 2003, the Veteran denied having or having had recurrent back pain. Service treatment records show complaints of neck pain in February 2005, in conjunction with headaches, and the assessment was migraine headaches. On service examination in March 2005, the Veteran denied having or having had recurrent back pain and she did not mention a left toe disorder. On clinical evaluation, her spine, skin, and feet were normal. She claimed service connection for foot problems in May 2005 without claiming cervical spine, lumbar spine, or left 2nd toe disability. On VA examination in June 2007, the Veteran's claims folder was reviewed and she was examined and the examiner concluded that the Veteran's cervical and lumbar spine problems were less likely than not caused or aggravated by her service-connected left knee or left hip condition, giving reasons for such opinions. On VA examination in December 2011, the Veteran's claims folder was reviewed and the Veteran was examined and the examiner concluded that the Veteran's cervical and lumbar strain were less likely as not caused by or related to her service. The examiner noted that there was no documented continuity of medical care for any chronic cervical or lumbar spine condition dating to service identified, and that neck pain reported in 2005 was in the setting of headaches without a primary neck or cervical spine condition identified. Also, the Veteran denied low back pain in a 2005 questionnaire and her separation examination noted a normal spine exam. The examiner stated that acute episodes of low back pain (histories of back pain during deployment in January 2004 and of back pain in March 2004) do not invariably result in and are not diagnostic of chronic low back conditions. The examiner found that the Veteran had mild onychomycosis of her left 2nd toenail, and that it is less likely as not that it had its onset in service or is causally related to service, as there was no diagnosis of onychomycosis of the left 2nd toenail identified in the service medical records. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current cervical and lumbar strain, or for her current left 2nd toenail onychomycosis. None of these were shown in service and the examiner in December 2011 concluded that they were likely unrelated to service, based on evidence of record and medical principles. The examiner in 2007 concluded that the Veteran's cervical and lumbar spine problems were unlikely to have been caused or aggravated by her service-connected left knee or hip disabilities. There is no competent medical evidence to the contrary. Lay statements were submitted by the Veteran's sister and boyfriend in August 2007, indicating that she has had athlete's foot frequently since the time she went to basic training, as well as problems with her 2nd left toe, and had complained of upper and lower back pain for the last 4 years. Her elbows lock up on her. Both of her ankles make loud popping noises on occasion. Similar testimony was provided during the hearings conducted during the course of the claim, and the Veteran indicated that she had had a blood blister of her 2nd left toe in service and could trim her 2nd left toenail all the way down, and that her ankles started popping and creaking had having decreased range of motion in basic training and that she has problems daily with them. The Veteran also testified that she has aches and pains in her arms and that she has athlete's foot and had it in service. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428(2011). However, the disabilities at issue in this case could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). Furthermore, presumptive service connection is not warranted under 38 C.F.R. § 3.317 for any of the claims in question. Known clinical disorders have been diagnosed for the cervical and lumbar spine claims, and for the left 2nd toenail claim. For the claimed elbow, bilateral ankle, and skin disorders, the reported complaints have not been objectively verified. 38 C.F.R. § 3.317 makes clear that there must be an undiagnosed illness, and that when there is, that there must be some objective evidence perceptible to an examining physician or capable of independent verification. As discussed above, since cervical, lumbar spine, and left 2nd toenail disorders have been diagnosed, and the evidence does not include any objective evidence of elbow, ankle, or foot skin complaints, presumptive service connection is not warranted for any of the disorders at issue, under 38 C.F.R. § 3.317. The Veteran's stated basis in her February 2008 substantive appeal, for her appeals, was that the RO did not adequately review all evidence of record. For the claims being decided, however, the Board finds that VA has adequately reviewed her claims, and has provided adequate reasons and bases for its decisions. The preponderance of the evidence is against the claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for bilateral elbow disorder, bilateral ankle disorder, a skin disorder affecting the feet, a cervical spine disorder, a lumbar spine disorder, and a left 2nd toenail disorder is not warranted. REMAND The Veteran seeks service connection for shin splints. The Board remanded the case to the RO in December 2011 for a VA examination to determine the nature and likely etiology of the reported bilateral shin disorder. For any diagnosed chronic shin disorder, the examiner was to state whether it is at least as likely as not (a probability of at least 50 percent) that it had its onset in service, is causally related to service, or was caused or aggravated by a service-connected disability, and an explanation was to be provided for any opinion expressed. Based on the resulting December 2011 VA examination report, it is unclear whether the Veteran has a current shin disorder. On page 20 of the December 2011 VA examination report, in the shin disorder section, the examiner indicated that no chronic "skin" disorder was identified on examination. On page 25 of the report, the examiner reported a diagnosis of bilateral shin splints. Once again, it is not clear whether the Veteran has a bilateral shin disorder, and if she does, none of the nexus opinions requested were provided. Accordingly, remand for corrective action is required. RO compliance with a remand is not discretionary. If an RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). Regarding the claim for service connection for a digestive disorder claimed as irritable bowel syndrome, while the Veteran was in service, lower abdominal pain was reported in December 2002, diarrhea on deployment was reported in January 2004, and diarrhea with eating red meats was reported in January 2005. The VA examiner in December 2011 stated that the Veteran's loose stools after meat ingestion are attributable to food intolerance, and indicated that it is less likely as not that the food intolerance was incurred during service or was otherwise related to service. However, it seems that the examiner did not consider the history of diarrhea with eating red meats which the Veteran provided during service in January 2005 in formulating that opinion. Furthermore, it is unclear whether such food intolerance is an acquired disorder as opposed to a congenital or developmental defect for which service connection would not be permitted. The examiner characterized the Veteran's complaints of intermittent constipation as a side effect of Tramadol. The Veteran is service-connected for migraine headaches and the examiner noted Tramadol was prescribed for that condition; however, the examiner did not offer an opinion as to whether the Veteran has a diagnosed disability manifested by constipation which may be secondary to the service-connected migraine headache disability. Accordingly, another medical opinion is required. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination or medical opinion/addendum to determine the nature and likely etiology of the reported bilateral shin disorder. The examiner should review the claims record. The examiner should render a clear opinion as to whether the Veteran has a bilateral shin disorder. For any diagnosed chronic shin disorder, the examiner should state whether it is at least as likely as not (a probability of at least 50 percent) that it had its onset in service, is causally related to service, or was caused or aggravated by a service-connected disability. An explanation should be provided for all opinions expressed. 2. Schedule the Veteran for an examination or medical opinion/addendum to determine the nature and likely etiology of the Veteran's diagnosed food intolerance and complaints of intermittent constipation. The examiner should address the following: (a) For any identified food intolerance, is it an acquired disorder, or alternatively a congenital or developmental defect. Is it at least as likely as not (a probability of at least 50 percent) that the food intolerance had its onset in service, is causally related to service, or was caused or aggravated by a service-connected disability. (b) For any identified disability manifested by constipation, is it at least as likely as not (a probability of at least 50 percent) that the condition had its onset in service, is causally related to service, or was caused or aggravated by a service-connected disability, to include as a side effect of use of Tramadol (prescribed for service-connected disabilities). An explanation should be provided for all opinions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Thereafter, the RO should readjudicate the appellant's claims. If the benefits sought on appeal remain denied, the appellant should be provided a supplemental statement of the case. The supplemental statement of the case must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs