Citation Nr: 1751414 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 11-07 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for costochondritis. 4. Entitlement to service connection for a right hip disability. 5. Entitlement to service connection for a left knee disability. 6. Entitlement to service connection for a right knee disability. 7. Entitlement to service connection for a left ankle disability. 8. Entitlement to service connection for a right ankle disability. 9. Entitlement to service connection for degenerative disc disease of the thoracic and lumbar spine. 10. Entitlement to service connection for hypermobility syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from November 1992 to April 1993 and from May 1993 to September 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In February 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. In October 2014 and January 2016, the Board remanded this case for additional development, and the case has been returned for further appellate review. In a May 2016 rating decision, the Appeals Management Center (AMC) granted the claim of entitlement to service connection for a neck disability. That issue is therefore no longer on appeal. FINDINGS OF FACT 1. The Veteran does not have currently-diagnosed costochondritis or disabilities of the left shoulder, right shoulder, right hip, left knee, right knee, left ankle, or right ankle for VA purposes. 2. The evidence shows that the Veteran's degenerative disc disease of the thoracic and lumbar spine did not have its onset during service and is not otherwise related to service. 3. The Veteran's current hypermobility syndrome originated during service. CONCLUSIONS OF LAW 1. Costochondritis and disabilities of the left shoulder, right shoulder, right hip, left knee, right knee, left ankle, and right ankle were not incurred in or aggravated by the Veteran's military service. 38 U.S.C. §§ 1110, 1111, 1112, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. Degenerative disc disease of the thoracic and lumbar spine was not incurred in active duty service and may not be presumed to have been incurred or aggravated in service. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for establishing service connection for hypermobility syndrome are met. 38 U.S.C. §§ 1101, 1110, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify was satisfied by a letter that was sent to the Veteran in June 2008. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). All relevant, obtainable evidence has been associated with the claims file to fulfill VA's duty to assist. 38 U.S.C.A. § 5103A. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). 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, or nexus, 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). Chronic diseases as listed under 38 C.F.R. § 3.309(a), such as arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Continuity of symptomatology may be used in place of nexus "[i]f evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported.'" Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b). I. Disabilities of the Shoulders, Chest, Right Hip, Knees, and Ankles The Veteran has claimed entitlement to service connection for costochondritis and disabilities of the left shoulder, right shoulder, right hip, left knee, right knee, left ankle, and right ankle. She contends that these disabilities originated during service. Review of the evidence of record from the period beginning with the filing of her claim reveals that no current disabilities that are associated with the above claims have been diagnosed. The Veteran has undergone testing during physical examination and diagnostic testing during VA examinations, and she has been interviewed and her claims file has been reviewed by medical professionals. Based on the above, VA examination reports dated in June 2009 and February 2015 have found no current disabilities. In terms of rationale, the February 2015 VA examiner expressly noted that "[t]he veteran has had multiple X-rays, bone scans and examination for her shoulders, chest, hips, knees and ankles... during active duty and at her [Compensation & Pension] exam in 2009." The examiner noted that there were no significant findings on any of these tests, and that the Veteran has had no treatment for these joints since separation. Therefore, the examiner determined that any problems with these joints were acute and transitory and resolved without residuals. She determined there were no diagnoses for any of these conditions. Review of the Veteran's post-service medical records also reveals no current diagnoses for the claims at issue. The only evidence in support of finding that the Veteran has current disabilities of the left shoulder, right shoulder, chest, right hip, left knee, right knee, left ankle, and right ankle comes from the Veteran herself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. The Veteran in the case at hand does not possess the necessary qualifications to be able to diagnose the disabilities that are at issue. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see also Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), it was noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents resulted in disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of a diagnosis of a current disability, service connection for costochondritis and disabilities of the left shoulder, right shoulder, right hip, left knee, right knee, left ankle, and right ankle cannot be granted. II. Degenerative Disc Disease of the Thoracic and Lumbar Spine The Veteran has been diagnosed with degenerative disc disease of the thoracic and lumbar spine. (See February 2015 VA Medical Opinion.) The record also reflects that she sought treatment for back pain of seven days' duration in April 1996 and for back spasms in the mid-lower back for one day in June 2000 in service. The record does not, however, reflect that there is a nexus between the in-service back symptoms and the current degenerative disc disease. The most probative opinion weighing against the claim appears in the February 2015 VA Medical Opinion. The examiner interviewed the Veteran and reviewed the record. Based on the above, she opined that the back disability was less likely than not incurred in or caused by service. In her rationale, she noted that the Veteran's current radiographs showed minor to mild degenerative disc disease in the thoracic and lumbar spine, with an essentially normal physical examination. Her lumbar and thoracic radiographs were normal. The examiner could find no documentation of back treatment since separation. Because this opinion was rendered by a medical professional, is based on review of the record and interview and examination of the Veteran, and provides an etiology opinion with rationale, the Board finds it highly probative. The only evidence in support of a nexus between the degenerative disc disease and service comes from the Veteran herself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. The Board has considered whether presumptive service connection, based on the Veteran's reports of continuity of symptomatology since service, is warranted. The Veteran is not diagnosed with a chronic disease enumerated under 38 C.F.R. § 3.309(a). In any event, any relationship between the current low back disability and symptoms of back problems experienced over the years must be established by medical evidence because back problems may be due to many different causes thereby rendering the question of causation a matter of medical complexity requiring medical expertise to resolve. Here, the medical opinion evidence indicates that there is no relationship between the post-service back disability and symptomatology noted in service. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim of entitlement to service connection for degenerative disc disease of the thoracic and lumbar spine must be denied. III. Hypermobility Syndrome The Veteran has been found to have hypermobility syndrome that was diagnosed in service. January 2001 Physical Evaluation Board (PEB) proceedings note, in pertinent part, that the Veteran has "[b]enign hypermobility syndrome symptomatic with diffuse laxity complicated by retropatellar pain syndrome at right knee and early costochrondral calcifications at the sternum and back pain." The PEB concluded that the Veteran's "medical condition prevents performance of duty in [her] grade and specialty." The April 2016 VA examination report notes that the Veteran has used a right heel lift after service, and that this treatment has addressed the problem considerably. The examiner also noted, however, that symptoms such as popping and crepitus that she experiences in overuse situations "are congruent with her genetic makeup of her hypermobility and diffuse laxity." Based on the above, the Board finds that entitlement to service connection for hypermobility syndrome is warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for costochondritis is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for degenerative disc disease of the thoracic and lumbar spine is denied. Entitlement to service connection for hypermobility syndrome is granted. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs