Citation Nr: 1756929 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-11 440 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for residuals of a bilateral finger injury. 2. Entitlement to service connection for a neck disability. 3. Entitlement to service connection for a bilateral shoulder disability. 4. Entitlement to service connection for stomach disorder. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to May 1972. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a May 2007 rating decision, by the Atlanta, Georgia, Regional Office (RO), which denied the Veteran's claims of entitlement to service connection for a bilateral finger injury with nerve problem, service connection for stomach problems, service connection for a neck disability, and service connection for a bilateral shoulder disability. An April 2009 rating decision confirmed the denial of the claims after considering evidence of record prior to the May 2007 decision that apparently had not been considered when the 2007 decision was rendered. The Veteran perfected a timely appeal. In December 2014, the Board remanded the case to the RO for evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in September 2015. In September 2016, the Board again remanded the case for still further evidentiary development. Following the requested development, another SSOC was issued in May 2017. There has been substantial compliance with those remand directives. In a June 2015 rating decision, the RO granted service connection for lumbar degenerative disc disease, rated as 20 percent disabling, right leg radiculopathy rated as 10 percent disabling, and superficial and nonlinear scar of the right thigh rated as 0 percent disabling. A notice of disagreement (NOD) with that decision was received in September 2015, and a statement of the case (SOC) was issued in March 2017 addressing those issues. However, the record contains no substantive appeal with respect to those issues and they have not been certified to the Board. Therefore, those issues are not in appellate status, and will not be addressed by the Board at this time. See 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.101, 20.200, 20.201, 20.202 (2017). FINDINGS OF FACT 1. The Veteran has not had a disability involving residuals of a bilateral finger disability since from contemporaneous to when he filed his claim to the present. 2. The Veteran has not had a neck disability since from contemporaneous to when he filed his claim to the present. 3. The Veteran has not had a disability of either shoulder since from contemporaneous to when he filed his claim to the present. 4. The Veteran has not had a disability involving a stomach disorder from contemporaneous to when he filed his claim to the present. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a bilateral finger injury have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for service connection for a bilateral shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for service connection for stomach disorder have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Laws and Regulations. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (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 between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id., see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. II. Factual background & Analysis-S/C-fingers, neck and shoulder disorders. The Veteran essentially contends that he sustained injuries to the fingers, neck and shoulders as a result of a motor vehicle accident in service shortly after returning from Vietnam. Submitted in support of the Veteran's claim are lay statements, dated in September 2009, from individuals who indicated that they served with the Veteran and have known him for a number of years prior to and after active duty. These individuals maintain that the Veteran was involved in a vehicle accident resulting in the claimed injuries and that he continues to have problems. After review of the evidentiary record, the Board finds that service connection is not warranted for residuals of a bilateral finger injury, a neck disability, or a bilateral shoulder disorder. The competent evidence of record does not establish current diagnoses of a bilateral finger injury, neck or bilateral shoulder disability. Significantly, the service treatment records (STRs) do not include any mention of, complaints of, treatment for, or diagnosis of any disability involving the fingers, neck or shoulders. At the time of his separation examination in May 1972, clinical evaluation of the neck and upper extremities was normal. In addition, all available VA and non-VA treatment records are silent for a diagnosis of, or treatment for, any finger, shoulder or neck disabilities. Moreover, the Veteran has not submitted any competent evidence supporting the claim that he has residuals of a bilateral finger injury, a neck disorder, or a bilateral shoulder disorder. The threshold requirement here (as in any claim seeking service connection) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., residuals of a bilateral finger injury, a neck disorder or a bilateral shoulder disorder. See 38 U.S.C. § 1131. The record does not include any such evidence. Notably, the treatment records associated with the record do not show any diagnosis or treatment for any disability of the fingers, shoulder or neck. The Veteran's contentions do not support a finding that he has had persistent or recurrent symptoms of such disabilities. Accordingly, there is no valid claim of service connection for residuals of a bilateral finger injury, a neck disorder or a bilateral shoulder disorder. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In so finding, the Board notes that the Veteran is considered competent to describe his symptoms, but he is not competent to render or provide a current diagnosis of a chronic orthopedic disability which requires knowledge of the musculoskeletal system and the effect of internal and external processes on the musculoskeletal system. See Barr, supra; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The evidence does not show that the Veteran has a bilateral finger injury, a bilateral shoulder disorder, or a neck disorder. Absent a current diagnosis, service connection is not warranted. Even in consideration of the Veteran's statements, he has not specifically alleged a current diagnosis, but instead has merely made arguments regarding the occurrence of an in-service motor vehicle accident which caused him to develop finger, shoulder and neck problems. Such does not amount to a report of a contemporaneous diagnosis as contemplated by Jandreau. Consequently, the preponderance of the evidence is against the claim for service connection for a residuals of a bilateral finger injury, a neck disorder and a bilateral shoulder disorder. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claims of service connection for disabilities of the fingers, shoulders and neck. Accordingly, they must be denied. In denying these claims, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). III. Factual background & Analysis-S/C stomach disorder. The Veteran contends that he is entitled to service connection for a disorder claimed as stomach problems. Based on the competent and credible evidence, the Board concludes that the Veteran does not have a current diagnosis of a stomach disorder and his claim must be denied. Significantly, the Board notes that the STRs are negative for any diagnosis, complaint, or abnormal finding suggestive of a stomach condition. On separation examination in May 1972, the Veteran's abdomen and viscera were normal. He denied frequent indigestion and stomach or intestinal trouble. Despite VA treatment records documenting medication prescribed for stomach, these records have not included a diagnosis of an epigastric or stomach condition. The most fundamental requirement for any claim for service connection is that the Veteran must first establish he or she has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (noting that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110 (2012). In the absence of proof of present disability there can be no valid claim."). In other words, the evidence must show that, at some point during the appeal period, the veteran has the disability for which benefits are being claimed. Brammer, 3 Vet. App. at 225 (holding that, in the absence of proof of a present disability, there can be no valid claim)). McClain v. Nicholson, 21 Vet. App. 319 (2007) (stipulating that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). Here, there is no competent medical evidence reflective of a diagnosis of a stomach disorder, at any time during the appeal period. To the extent that the Veteran asserts that he has a stomach condition that is related to service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and that his assertions in that regard are entitled to some probative weight. See Washington. He is competent to report incidents and symptoms in service and symptoms since then. He is not, however, competent to render an opinion as to diagnosis on a matter such as whether he has a stomach disorder because such a disagnosis requires medical expertise that the Veteran is not shown to possess. For the reasons expressed above, the Board finds that a preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a stomach disorder, and the claim must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for residuals of a bilateral finger injury is denied. Service connection for a neck disorder is denied. Service connection for a bilateral shoulder disability is denied. Service connection for a stomach disorder is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs