Citation Nr: 1526228	
Decision Date: 06/19/15    Archive Date: 06/26/15

DOCKET NO.  13-05 678	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina 


THE ISSUES

1.  Entitlement to service connection for right shoulder disability  

2.  Entitlement to service connection for right hip disability.  

3.  Entitlement to service connection for a dairy allergy.  

4.  Entitlement to service connection for decreased sensation of the left lateral 4th toe to include as secondary to service-connected left ankle disability.


REPRESENTATION

Appellant represented by:	South Carolina Office of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from June 1995 to August 1995, from June 1996 to August 1996, and from July 2002 to July 2010.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  

In March 2015, the Veteran testified before the undersigned via video conference from the RO.  Prior to the hearing, the issues were confirmed.  At the hearing, the Veteran clarified that she was also seeking service connection for decreased sensation of the left lateral 4th toe as secondary to left ankle disability.  

The issue of service connection for bladder dysfunction was raised at the hearing.  That issue was previously denied in the February 2012 rating decision.  Thus, the Board notes that this is a new and material issue which has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2014). 

The issues of service connection for decreased sensation of the left lateral 4th toe to include as secondary to service-connected left ankle disability and service connection for a milk/dairy allergy are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.



FINDING OF FACT

The Veteran does not have a currently diagnosed disability of the right shoulder or right hip which is attributable to service.  


CONCLUSIONS OF LAW

1.  A right shoulder disability was not incurred or aggravated in active service.  38 U.S.C.A. §§ 1101, 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2014).

2.  A right hip disability was not incurred or aggravated in active service.  38 U.S.C.A. §§ 1101, 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2013).  Here, the Veteran was provided with the relevant notice and information in an October 2010 letter prior to the initial adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  The Veteran has not alleged any notice deficiency during the adjudication of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim.  Here, the Veteran's service treatment records (STRs), VA records, and identified private treatment records have been obtained and associated with the record.  The Veteran was also provided with VA examinations which contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed conditions.  VA's duty to assist with respect to obtaining relevant records and examination has been met.  38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Finally, the Veteran testified at a Board hearing.  The hearing was adequate as the Veterans Law Judge who conducted the hearing explained the issues and identified possible sources of evidence that may have been overlooked.  38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).

In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claims.  Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).

Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306.  Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Establishing service connection 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. §§ 1111.

When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service.  The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress" of the preexisting condition.  38 U.S.C. § 1153.  If this burden is met, then the veteran is not entitled to service-connected benefits.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.


Right Shoulder and Right Hip

The service treatment records reflect that as a child, the Veteran reported that she broke her collarbones; however, no residual disability was noted when she entered service with regard to the right shoulder.  After her first period of service, in June 2001, the Veteran suffered a displaced right shoulder.  During service, the Veteran reported right shoulder and right hip pain on several occasions, including after a 2002 fall from a wheelchair and a 2009 fall while running.  However, regardless of any pre-service injury, the Veteran currently only has right shoulder pain.  Likewise, she also only has right hip pain.  Both her February 2011 and February 2013 post-service VA examinations yielded normal physical examinations and assessments by the examiners.  Although the Veteran indicated that she would submit additional medical evidence following her Board hearing pertinent to these matters, the additional evidence does not establish that she has currently diagnosed disabilities, other than pain, and other that the Veteran's right hip pain which is already service-connected as part and parcel of her service-connected low back disorder, characterized as part of that disorder.  

The United States Court of Appeals for Veterans Claims (Court) consistently has held that, under the law, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."  Watson v. Brown, 4 Vet. App. 309, 314 (1993).  This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated, "a Veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the Veteran's service and the disability."  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed).  In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability.  See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists).  "Arthralgia" is defined as pain in a joint.  See DeLuca v. Brown, 6 Vet. App. 321, 322 (1993) (citing Dorland's Illustrated Medical Dictionary 147 (27th ed. 1988)).  The Court has stated in Clyburn v. West, 12 Vet. App. 296, 301 (1999), that continued complaints of pain after service do not suffice to establish a medical nexus, where the issue at hand is of etiology, and requires medical opinion evidence.  Pain cannot be compensable in the absence of proof of an in-service disease or injury to which the current pain can be connected by medical evidence.  Mere pain, alone, without a diagnosed or identifiable underlying condition, is not a disability for which service connection may be granted.  Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part, appeal dismissed in part sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (dismissing challenge to the issue whether pain, alone, can be considered a disability). 

Here, there is no disputing the Veteran has complained of right shoulder and right hip pain, both during service and even since her discharge.  She is competent to report low right shoulder and right hip pain, and is credible in this regard.  However, the VA compensation examiners specifically determined there is no current right shoulder or right hip disability, including underlying diagnosis, to account for this pain, other than the already service-connected right hip pain associated with the service-connected low back disability.  

The Board attaches significant probative value to the medical opinions, and the most probative value in this case, as they are well reasoned, detailed, consistent with other evidence of record to the extent there often has not been any underlying diagnosis, and included consideration of the Veteran's relevant medical history.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).  See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (indicating most of the probative value of an opinion comes from its underlying reasoning, not just from mere review of the claims file, although that, too, has its importance if evidence in the file may affect the underlying basis of the opinion such as by revealing relevant facts).  The VA examiners based the opinions on a review of the record, but also on the Veteran's history as recounted by her and as shown in the record, plus personal examination of her that included X-rays.  Hence, there were multiple supporting bases of the opinions.

The Board finds that the VA examiners' opinions are more probative than the Veteran's personal assertions to the contrary because the examiners have medical expertise that the Veteran does not possess.  She is certainly competent to report experiencing chronic pain, but she is not competent to ascribe this pain to a particular diagnosis or, in turn, relate it to her military service, especially when, as here, there is countervailing medical comment.  Thus, the most probative evidence establishes there is no present disability of the right shoulder or right hip.  Absent a current diagnosis, service connection is not warranted.


ORDER

Entitlement to service connection for right shoulder disability is denied.

Entitlement to service connection for right hip disability is denied.


REMAND

At her hearing, the Veteran indicated that she has numbness in the left lateral 4th toe as secondary to service-connected left ankle disability.  She should be provided VCAA pertaining to secondary service connection.  Also, a VA examination should be afforded to the Veteran to assess that assertion, particularly since the STRs in November 2009 do show that decreased sensation in the left lateral 4th toe was reported by the Veteran following a left ankle injury.  

With regard to claimed milk/dairy allergy, the STRs reflect that in May 2009, it was noted that the Veteran was positive for milk allergin on testing.  Later, in April 2010, it was noted that her symptoms were suggestive of lactose intolerance and irritable bowel syndrome (IBS) instead of milk allergy.  Post-service VA examination continued to diagnose a milk allergy as well as IBS and service connection has been established for IBS.  The Veteran's claim was denied as this was a congenital or developmental disorder.  However, there is no medical opinion to that effect.  As such, a medical opinion should be obtained to determine if her mild/dairy allergy is congenital/developmental in nature or if it is a disability.

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran VCAA notification pertaining to the issue of service connection for decreased sensation of the left lateral 4th toe as secondary to service-connected left ankle disability.

2.  Schedule the Veteran for a VA examination to determine if the Veteran has a disability manifested by decreased sensation of the left lateral 4th toe.  The examiner should review the record prior to examination.  The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current underlying disability (decreased sensation of the left lateral 4th toe) had its clinical onset during service or is related to any in-service disease, event, or injury.  The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current underlying disability of the left lateral 4th toe is proximately due to, or the result of, the service-connected left ankle disability.  The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current underlying disability of the left lateral 4th toe is permanently aggravated beyond the natural progression of such disorder by the Veteran's service-connected left ankle disability.  The examiner should provide a complete rationale for all opinions expressed and conclusions reached.  

3.  Obtain a VA medical opinion from an appropriate VA examiner to determine if the Veteran's mild-dairy allergy is congenital or developmental in nature or whether it is a disability.  If it is a disability, the examiner should opine whether it is more likely than not, less likely than not, or at least as likely as not that the disability began during military service or is otherwise related to the Veteran's service.  

4.  Review the medical opinions obtained above to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner(s) for completion of the inquiry.  

5.  Readjudicate the claim on appeal in light of all of the evidence of record.  If the issues remain denied, the Veteran should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period of time within which to respond thereto.

The Veteran 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 2014).



______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs