Citation Nr: 1612581 Decision Date: 03/29/16 Archive Date: 04/07/16 DOCKET NO. 08-15 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a left shoulder sprain (left shoulder disability). 2. Entitlement to a compensable rating prior to March 22, 2012, and a rating in excess of 10 percent after March 23, 2012, for residuals from a right ankle avulsion fracture (right ankle disability). 3. Entitlement to a rating in excess of 10 percent for actinic keratosis and skin growths (skin disability). 4. Entitlement to service connection for a varicocele. 5. Entitlement to service connection for a left ankle disorder. 6. Entitlement to service connection for a left hand disorder. 7. Entitlement to service connection for a right hand disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active military service from February 1977 to February 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2011. A transcript of that hearing is of record. In February 2012, the Board granted service connection for a cervical spine disability and denied service connection for bilateral pes planus. The Board also denied increased ratings for a right index finger disability and a left foot disability. In addition, the Board remanded for further development the Veteran's service connection claims for a varicocele, bilateral hamstring disabilities, a right shoulder disability, bilateral elbow disabilities, bilateral hand disabilities, bilateral hip disabilities, bilateral knee disabilities, and a left ankle disability, and the Veteran's increased rating claims for a left shoulder disability, a right ankle disability, and a skin disability. In November 2012, the RO granted service connection for bilateral hamstring disabilities, a right shoulder disability, bilateral elbow disabilities, bilateral hip disabilities, and bilateral knee disabilities. This represents a complete grant of his appeal in regard to these claims. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). These issues are no longer before the Board. Regarding the remaining issues reflected on the cover page, the Board is satisfied that there was at the very least substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999). The issues of entitlement to ratings for a left shoulder disability, a right ankle disability, and a skin disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT 1. A left varicocele was noted at time of the Veteran's entry into service. 2. The evidence does not establish that his pre-existing left varicocele was permanently worsened during his military service. 3. The Veteran is not shown to have a left ankle disability. 4. A chronic hand disability was not shown in service, hand arthritis was not diagnosed within one year of service discharge, and the weight of the evidence fails to establish that the Veteran's current bilateral hand disorders are etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a varicocele have not been met. 38 U.S.C.A. §§ 1110, 1131, 111, 1132 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (b), 3.306(a) (2015). 2. The criteria for service connection for a left ankle disorder have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 3. The criteria for service connection for a left hand disorder have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 4. The criteria for service connection for a right hand disorder have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), private treatment records, and VA treatment records have all been obtained. Additionally, the Veteran testified at an April 2011 hearing before the Board. The Veteran was also provided multiple VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners had a full and accurate knowledge of the Veteran's disability and contentions, grounded their opinions in the medical literature and evidence of record, and provided the information necessary to rate the service-connected disability on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, the Veteran has not objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). The Veteran filed his service connection claims for a varicocele, a left ankle disorder, a left hand disorder, and a right hand disorder, which were denied by a June 2007 rating decision. Varicocele The law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. This is known as the presumption of soundness. Here, the Veteran was noted to have a left varicocele at his enlistment physical in 1976. As such, the Board concludes that a pre-existing left varicocele was noted at service entry and the presumption of soundness does not apply. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence in the record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). If a preexisting disorder is noted upon entry into service, a Veteran cannot bring a claim for disability compensation for that disorder, but may bring a claim for disability compensation for aggravation of that disorder. In the latter case, 38 U.S.C. § 1153 applies and the burden falls on the appellant to establish aggravation. See Wagner v Principi, 370 F.3d 1089, 1096. Section 1153 provides that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Regarding his claim for a varicocele, STRs show he had a varicocele in April 1988. At an August 2006 physical examination, the Veteran reported experiencing mild pain but was not sure if it was his right testicle or right groin. He reported being told he stressed the area, although after conservative and within one month all of his symptoms were gone and did not return. STRs do not show any other symptoms, treatment, or diagnosis for a varicocele. After his separation from service, the medical records do not show any complaints, treatment, or diagnosis for a varicocele. At a Board hearing in April 2011, the Veteran testified that his varicocele was swollen, but otherwise he had no issues. The Board remanded the Veteran's claim in February 2012 for a medical determination as to whether the Veteran had a current varicocele; and if so, whether it was at least as likely as not (50 percent or greater) that the current varicocele either began during or was otherwise caused by the Veteran's military service, or was related to the varicocele which the Veteran developed in service. In March 2012, the Veteran was afforded a VA examination. The examiner noted that the Veteran had entered service with a left asymptomatic varicocele, and noted that he had experienced pain and swelling in 1988 and 1996. The separation physical found on ongoing left scrotal/varicocele complaints. The examiner noted that since service the Veteran's left scrotal/varicocele had remained asymptomatic. The examiner explained that the Veteran's congenital left varicocele was currently small and asymptomatic, and had been asymptomatic and small since military discharge. As such, the examiner found no basis for a finding that the condition was aggravated by the Veteran's military service. Here, the Veteran clearly had a varicocele at enlistment. To the extent if temporarily flared-up, the Board concludes that this does not suggest an underlying worsening of the condition. Such a conclusion is supported by a finding that the Veteran's varicocele is now asymptomatic. As such, the criteria for service connection have not been met with regard to the Veteran's left varicocele, and his claim is denied. Regarding his claim for a left ankle disorder, STRs show he had normal examinations of his lower extremities in November 1981, June 1987, April 1988, and November 1995. At the August 2006 physical examination, he reported that he had arthritis in his ankles. On examination, he had a normal gait, he was in no acute distress, he had no redness, tenderness, or swelling of either ankle, and he retained complete range of motion in both ankles. The examiner noted that there was no etiology or pathology found to render a diagnosis. After his separation from service, the medical records do not show any complaints, treatment, or diagnosis for a left ankle disorder. At the hearing, the Veteran testified that he has arthritis and stiffness, but had never been told he had any joint issues. In March 2012, the Veteran was afforded a VA examination. He reported that his left ankle did not bother him, although he reported it got a little tight six months previously for two to three days. The examiner reviewed the Veteran's claims file, interviewed the Veteran, and conducted a physical examination. A left ankle x-ray showed a 5 millimeter enthesophyte. The examiner reported that the enthesophyte noted on x-ray was most consistent with the Veteran's prior diagnosis of plantar fasciitis. The examiner reported that the Veteran's left ankle was normal and that there was no relationship between a left ankle disorder and left plantar fasciitis. The record does not show evidence of a chronic left ankle disability. In the absence of proof of a current disability, there can be no valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, the Board finds that the evidence is against the claim and service connection for a left ankle disorder is denied. Regarding his claims for bilateral hand disorders, STRs show he had normal examinations of his upper extremities in November 1981, June 1987, April 1988, and November 1995. At the August 2006 physical examination, he reported that he had arthritis in his hands. On examination, he was in no acute distress, he had no redness, tenderness, or swelling of either hand, and he retained complete range of motion in both hands. The examiner noted there was no etiology or pathology found to render a diagnosis. After his separation from service, the medical records do not show any complaints, treatment, or diagnosis for a hand disorder. At the hearing, the Veteran testified that he has arthritis and stiffness, but had never been told he had any joint issues. In March 2012, the Veteran was afforded a VA examination. He reported that he had hand stiffness six to eight times per month, especially during the winter months. The examiner reviewed the Veteran's claims file, interviewed the Veteran, and conducted a physical examination. Hand x-rays showed degenerative changes. The examiner diagnosed the Veteran with bilateral hand degenerative joint disease. The examiner opined that the Veteran's hand disorders were less likely as not related to service as STRs contained no mention of the hands but for at the August 2006 examination. The Veteran has not submitted any medical evidence supporting his contention that his bilateral hand disorders either began during or was otherwise caused by his active service. VA obtained a medical opinion in an effort to support the Veteran in establishing his claims. The Board finds great probative value in the VA examiner's opinion. This negative opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position, including his assertion that his bilateral hand disorders were either due to or caused by his active service. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Consideration has been given to the Veteran's allegation that his bilateral hand disorders were due to his active service. He is clearly competent to report hand symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, while the Veteran may describe symptoms, he lacks the medical training or qualification either to diagnose a musculoskeletal disability or to relate it to his active service. Id. The Board notes that a chronic hand disability was not diagnosed during his service or within one year of separation from service. As such, the Board finds that the evidence of record does not show continuous symptomatology since service. The record contains no evidence of treatment for a chronic hand disability in service, the medical evidence does not document any hand disability treatment for the year following his separation from service, and as such, the Veteran is not entitled to presumptive service connection for a hand disorder. Accordingly, the criteria for service connection have not been met for bilateral hand disorders. That is, the evidence does not show that a chronic hand disorder was diagnosed in service or within a year of service and the weight of the evidence is against a finding that a hand disorder has existed continuously since service. The medical opinion of record has also concluded that the Veteran's bilateral hand disorders neither began during nor were otherwise caused by his active service Therefore, the claims are denied. ORDER Service connection for a varicocele is denied. Service connection for a left ankle disorder is denied. Service connection for a left hand disorder is denied. Service connection for a right hand disorder is denied. REMAND Regarding the claims for increased ratings for the Veteran's left shoulder, right ankle, and skin disabilities, the Board notes that the Veteran's last VA examination were in March 2012, more than four years ago. The Veteran's representative requested new VA examinations in order to adequately evaluate the disabilities. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). Here, new examinations are required to evaluate the current nature and severity of the Veteran's service-connected left shoulder, right ankle, and skin disabilities. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from June 2014to the present. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his left shoulder, right ankle, and skin disabilities. 3. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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 2014). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs