Citation Nr: 1418538	
Decision Date: 04/25/14    Archive Date: 05/02/14

DOCKET NO.  09-26 815	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for a left knee disability.

2.  Entitlement to service connection for a right knee disability.

3.  Entitlement to service connection for bilateral shin splints.

4.  Entitlement to service connection for residuals of a bilateral foot condition, to include jungle rot and/or cold injury residuals.

5.  Entitlement to service connection for chronic recurrent sinusitis.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Katz, Counsel


INTRODUCTION

The Veteran served on active duty from March 1973 to July 1994. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO).  The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2012.  A transcript of that hearing is associated with the claims file.

While the Veteran's appeal was in remand status, his claim for entitlement to service connection for degenerative disc disease and degenerative joint disease of the cervical spine was granted in a June 2013 rating decision.  This action constitutes a full grant of the benefit sought on appeal with respect to this issue, and it is no longer before the Board.

In its October 2012 remand, the Board referred the issue of entitlement to a total disability rating for compensation based upon individual unemployability (TDIU) for development and adjudication.  Although the RO addressed the issue of TDIU in the June 2013 supplemental statement of the case, the RO did not develop and adjudicate the issue in the first instance.  As noted in the October 2012 remand, the issue was raised by the Veteran, but not yet adjudicated, and was therefore referred to the RO for development and consideration.  As the issue of entitlement to a TDIU has not yet been developed and adjudicated by the RO, it is not properly before the Board.  Therefore, it is again referred to the RO for development and adjudication.

Additionally, in its October 2012 remand, the Board noted that the claims file contained evidence suggesting that the Veteran is not competent.  As the issue of competency had not yet been evaluated and considered by the RO, it was also referred for proper assessment.  Review of the claims file does not reveal that the RO has yet addressed the issue of the Veteran's competency.  Accordingly, it is again referred to the RO for appropriate development and consideration.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to service connection for a right knee disorder, entitlement to service connection for a left knee disorder, entitlement to service connection for a bilateral foot disorder, and entitlement to service connection for sinusitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDING OF FACT

The evidence of record does not show a current diagnosis of bilateral shin splints.



CONCLUSION OF LAW

The criteria for service connection for bilateral shin splints have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).  A letter dated in November 2007 satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

The Veteran's service treatment records, VA medical treatment records, and identified private medical treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010).  The Veteran underwent a VA examination with respect to his claim for entitlement to service connection for bilateral shin splints in March 2009.  The record does not reflect that the examination report is inadequate for rating purposes, as the examiner fully addressed the issue of whether the Veteran currently has bilateral shin splints.  The examination was sufficiently thorough and all necessary evidence was considered by the examiner.  38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2013) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  These duties consist of (1) the duty to fully explain the issue or issues on appeal and (2) the duty to suggest the submission of evidence that may have been overlooked.  In this case, the Veteran was assisted at the Board hearing by an accredited representative from The American Legion.  During the Veteran's hearing, the VLJ and the Veteran's representative asked the Veteran questions to ascertain the claimed etiology of the Veteran's bilateral shin disability.  The hearing focused on the elements necessary to substantiate the claim.  Although the VLJ did not advise the Veteran, during the hearing, of the elements of the claim that were lacking to substantiate a finding of service connection, the Board finds that this omission was harmless because notice of the criteria for a grant of service connection was given to the Veteran before the hearing, in the November 2007 VCAA letter, and in the May 2009 statement of the case.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2), consistent with Bryant, and that any error in notice provided during the Veteran's hearing constitutes harmless error.

The Veteran contends that service connection is warranted for bilateral shin splints.  During his June 2012 hearing before the Board, he testified that his duties during service were strenuous and included a lot of running and jumping.  He noted that he served as a drill instructor and a physical training instructor, and that he believed that this strenuous physical activity during service caused him to have shin splints.

Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  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.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
The Veteran's service treatment records are silent as to any complaints of or treatment for shin splints or any other shin disorder during active duty service.  Similarly, the post-service medical evidence of record does not reflect any complaints of or treatment for shin splints or a shin disorder.  

In March 2009, the Veteran underwent a VA examination.  He stated that he has had shin splints since 1975.  He complained of pain in the front of the legs which occurred one time per day and lasted for approximately one hour.  He indicated that the pain was localized and described the pain as squeezing and aching.  He denied any medical treatment for the condition, and noted that it impaired his ability to stand for long periods of time.  Upon physical examination, the Veteran's posture and gait were within normal limits.  Leg length was symmetrical and examination of the feet did not show any signs of abnormal weight bearing or breakdown, callosities, or any unusual shoe pattern.  The Veteran did not require any assistive device for ambulation.  Examination of the right and left tibia and fibula was normal.  X-rays of the right and left tibia and fibula were normal with no indication of malunion to the os calcis and no indication of malunion of the astralgus.  The examiner concluded that a diagnosis of bilateral shin splints could not be made because there was no pathology to render a diagnosis.

After thorough consideration of the evidence of record, the Board concludes that the evidence does not establish that the Veteran has a current diagnosis of bilateral shin splints.  As noted above, the 2009 X-rays showed normal findings, and the examiner concluded that there was no pathology to support a diagnosis of bilateral shin splints.  See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of a current disability is met when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim).  The Board acknowledges the Veteran's reports of bilateral shin pain.  However, 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.  Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001).  

Despite the Veteran's reports of pain, the medical evidence does not reflect a current diagnosis of bilateral shin splints or document symptoms suggestive of such a disability.  Without a currently diagnosed disability, a claim for service connection cannot be substantiated.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  There is also no diagnosis of bilateral shin splints at any point during the claim or appeal period.  McClain, 21 Vet. App. 319.  For these reasons, the Veteran's claim must be denied.

The preponderance of the evidence is against the claim.  There is no doubt to be resolved, and service connection is not warranted.  See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for bilateral shin splints is denied.


REMAND

I.  Bilateral Knee Disability

In March 2009, the Veteran underwent a VA examination.  The examiner diagnosed right and left knee strain and provided an opinion that the Veteran's bilateral knee strains were not related to his in-service knee symptoms, noting that the evidence did not demonstrate a significant knee condition.  Since the March 2009 VA examination, the medical evidence reveals that the Veteran now has diagnoses of bilateral degenerative joint disease in the bilateral knees.  As the March 2009 VA examiner only considered whether the Veteran's bilateral knee strain was related to his active duty service, and the evidence now demonstrates a more significant bilateral knee disorder which is orthopedic in nature, the Veteran should be provided with a new VA examination to determine whether his current degenerative joint disease in the bilateral knees is related to his active duty service.

II.  Bilateral Foot Disability

The Veteran contends that he had jungle rot on his feet during active duty service.  He noted that his only in-service treatment was to use powder on his feet.  In January 2013, a VA physician submitted a letter stating that the Veteran is currently receiving treatment for a bilateral foot condition, to include jungle rot.  Based upon the Veteran's competent reports of in-service symptoms and the medical evidence reflecting that he currently has the bilateral foot condition of jungle rot, the Board believes that the Veteran should undergo a VA examination to determine the etiology of his bilateral foot disorder.  McLendon v. Nicholson, 20 Vet. App. 84-86 (2006).

III.  Sinusitis

The Veteran underwent a VA examination with regard to his sinusitis in March 2009.  At that time, the VA examiner diagnosed seasonal allergies, noting that there was no finding of bacterial rhinitis.  The examiner did not provide an opinion as to the etiology of the Veteran's sinus disorder.  Review of the service treatment records reflect that the Veteran was diagnosed with and treated for sinusitis during active duty service.  In support of his claim, the Veteran submitted a January 2013 letter from a VA physician which reports that the Veteran has a current diagnosis of, and undergoes treatment for, chronic recurrent sinusitis.  Review of the medical evidence in the claims file reflects diagnoses of rhinitis.  In light of the in-service evidence of sinusitis and the current evidence of sinusitis and rhinitis, the Veteran should be provided with a VA examination to determine the etiology of his sinusitis.  Id.

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Provide the Veteran with a new VA orthopedic examination to determine the nature and etiology of his degenerative joint disease of the bilateral knees.  The Veteran's claims file and a copy of this Remand must be provided to the VA examiner for review prior to the examination.  All necessary studies and tests must be accomplished.  Thereafter, based upon a complete review of the Veteran's claims file, including the Veteran's service treatment records and his lay statements that he has had progressive knee problems since service, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's degenerative joint disease of the bilateral knees is related to his military service.  The examiner must provide a complete rationale and explanation for the basis of the opinion.

2.  Provide the Veteran with a VA examination to determine the nature and etiology of his jungle rot of the feet.  The Veteran's claims file and a copy of this Remand must be provided to the VA examiner for review prior to the examination.  All necessary studies and tests must be accomplished.  Thereafter, based upon a complete review of the Veteran's claims file, including the Veteran's service treatment records and his lay statements that he had jungle rot of the feet during service, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's jungle rot of the bilateral feet is related to his military service.  The examiner must provide a complete rationale and explanation for the basis of the opinion.

3.  Provide the Veteran with a VA examination to determine the nature and etiology of his sinusitis.  The Veteran's claims file and a copy of this Remand must be provided to the VA examiner for review prior to the examination.  All necessary studies and tests must be accomplished.  Thereafter, based upon a complete review of the Veteran's claims file, including the Veteran's service treatment records and his lay statements, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's sinusitis is related to his military service, including whether the Veteran's current sinusitis first manifested during active duty service.  The examiner must provide a complete rationale and explanation for the basis of the opinion.

4.  Notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. § 3.655 (2013).

5.  After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal.  If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond.

The appellant has the right to submit additional evidence and argument on the matter or 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. 2013).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs