Citation Nr: 1801111 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-12 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1994 through August 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board observes that, in a December 2017 written brief, the Veteran's representative listed an additional issue (Entitlement to a compensable rating for left third toe status post arthroplasty) as being on appeal. However, in his April 2013 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran limited his appeal to the issues of entitlement to service connection for right shoulder and right ankle disabilities. Accordingly, the issue of entitlement to a higher evaluation for his left third toe disability is not currently before the Board. FINDINGS OF FACT 1. The Veteran does not have a currently diagnosed right shoulder disability. 2. The Veteran does not have a currently diagnosed right ankle disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1154, 5107, 7104 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1154, 5107, 7104 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION In its appellate brief, the Veteran's representative argued that VA failed in its duty to assist when the Veteran was not scheduled for a VA exam to evaluate the etiology of his right shoulder and right ankle disabilities. A VA 27-0820 Report of General Information dated May 2016 notes that the Veteran called to update his address in the VA system and report that he missed his scheduled VA examination because he was out of town. The RO mailed a new VA 21-2570 Request for Physical Examination to the Veteran's updated address. That form was not returned as undeliverable. Again, the Veteran failed to report and has not shown good cause in his failure to do so. As such, the Board finds that the RO has satisfied its duty to notify and assist the Veteran in the development of his claims. The Board notes that the June 2017 supplemental statement of the case was returned as undeliverable and unable to forward. This notice letter was sent to the Veteran's last known address, and the Veteran has not provided an updated mailing address. See 38 C.F.R. § 3.1(q). As discussed above, the Veteran had previously updated his address with the RO, so he was aware of the process. While VA has a duty to assist the Veteran in the development of his claim, that duty is not limitless, neither is it always a "one-way street." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Veteran has an obligation to keep VA apprised of his whereabouts, including his current address. See Jones v. West, 12 Vet. App. 98 (1998). If he does not, VA is not obligated to "turn up heaven and earth to find him." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Accordingly, the Board finds that VA has fulfilled its duty to assist in this regard and will proceed to adjudicate the Veteran's appeal. Further, the Veteran's representative received the June 2016 supplemental statement of the case. Neither the Veteran nor his representative have raised any other issues with regard to VA's duty to notify and assist. The regulations pertinent to this decision (38 C.F.R. §§ 3.102, 3.303) were initially provided in the April 2013 Statement of the Case and April 2013 Supplemental Statement of the Case. Since he has had adequate notice of the pertinent laws, they will not be repeated here. The Veteran claims that his right shoulder disability and right ankle disability are etiologically related to active duty service. Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active duty for training. See 38 U.S.C. §§ 101(24), 106. After a full review of the record, the Board finds that the claims for entitlement to service connection for a right shoulder disability and a right ankle disability must be denied. Service treatment records indicate the Veteran was treated several times for right shoulder pain and right ankle pain while on active duty. In October 1998 he complained of right shoulder pain after doing push-ups; he was diagnosed with possible overuse of his shoulders. In January 1995, he was transported to the hospital for a right shoulder injury. However, x-rays taken in December 1995 showed no evidence of fracture or soft tissue abnormality. A treatment record dated June 1996 showed treatment for a right ankle fracture. Although there is evidence of in-service injuries to both his right shoulder and right ankle, there is no evidence the Veteran is currently diagnosed with a right shoulder or right ankle disability. VA treatment records are silent for any complaints of right ankle pain until May 2007. In May 2007 the Veteran reported that he was kicked in the right ankle while playing basketball and was unable to bear weight. X-rays taken at the time showed the Veteran's right ankle was within normal limits. In June 2007, the Veteran reported that his ankle pain and swelling had resolved, although he still had difficulty when wearing his work boots. The Veteran's service treatment records are silent for any complaints of right shoulder pain or right ankle pain until August 2012. X-ray reports for the Veteran's right shoulder in November 2012 and August 2013 were normal. VA treatment record dated October 2013 noted the Veteran's right shoulder showed widening of the AC joint, but was otherwise within normal limits. The Veteran was prescribed an ankle brace to manage his chronic ankle pain in August 2012. X-rays of the Veteran's right ankle dated August 2013 reflected a normal right ankle. In August 2013, the Veteran was diagnosed with arthralgia of the right shoulder and right ankle. The Board notes that arthralgia is a diagnosis of joint pain, but not a diagnosis of any particular disability. VA treatment records contain no diagnosis of arthritis or any other potential right shoulder or right ankle disability. The Veteran was afforded a VA examination to determine the etiology of his right shoulder and right ankle disabilities in July 2011. Physical examination reflected the Veteran had full range of motion of his right shoulder and right ankle. X-rays taken during the examination showed "no evidence of malunion to the os calcis on the right" and "no indication of malunion of the astragalus on the right," indicating a normal right ankle x-ray. X-rays taken of the Veteran's right shoulder were also normal. The examiner opined that there was no current pathology upon which to base a diagnosis for a right shoulder or right ankle disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For the purposes of establishing a current disability, pain alone, without any functional impairment or underlying diagnosis, is not a service connectable disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part, dismissed in part, Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Although VA treatment records indicate the Veteran has been treated for chronic right shoulder and ankle pain, without an underlying diagnosed chronic disability, , pain alone is not a service connectable disability. The Board notes that the Veteran's VA treatment records indicate that his right shoulder pain may cause some functional impairment. In November 2012, the Veteran reported that his shoulder pain caused him to change jobs, and limited range of motion was noted. He reported his shoulder pain affected his job again in August 2013. A VA treatment record dated October 2013 noted he had limited range of motion and had some impingement. However, none of the Veteran's physicians have opined that his current functional impairment of the right shoulder is due to his active duty service. As discussed above, the Veteran failed to attend his most recently scheduled VA examination that was schedule in order to assist him with the development of his claim and to ascertain whether his pain was indicative of an underlying chronic disability. There is no medical evidence etiologically linking the Veteran's current pain with functional impairment to his active duty service. While the Board recognizes that the Veteran is competent to report the observable manifestations of his claimed disabilities, he is not competent to render a diagnosis based on the manifestation of those symptoms since he does not have the requisite medical knowledge or training. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Based on the foregoing, the Board concludes that the weight of the evidence is against a finding of a current right shoulder or right ankle disability. Thus, there is no basis on which the claim for service connection may be granted. Brammer v. Derwinski, 3 Vet. App. (1992). It is therefore unnecessary to address any other element of service connection. Accordingly, the claims for service connection for a right shoulder disability and a right ankle disability are denied. Further, although there is evidence the Veteran has pain with functional impairment of his right shoulder, it is not etiologically linked to active duty service, and the claim must be denied. The elements for service connection for right shoulder disability have not been met. Accordingly, service connection for the claimed disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against these claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53. ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a right ankle disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs