Citation Nr: 1801133 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-35 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a right shoulder condition. 2. Entitlement to service connection for partial sacralization of L5 with pseudoarthrosis between the transverse process of L5 and S1 (back disability). 3. Entitlement to service connection for a bilateral knee condition. 4. Entitlement to service connection for a bilateral flat feet condition. 5. Entitlement to service connection for allergic rhinitis. 6. Entitlement to service connection for a skin disability, to include chilblains of the bilateral extremities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Dean, Counsel INTRODUCTION The Veteran had active service from April 1995 to April 1998, from October 2001 to April 2002, and from February 2003 to May 2004. She also had service in the Army National Guard from April 1998 to October 2001, from April 2002 to February 2003, and from May 2004 to August 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In May 2016, a videoconference hearing was held before the undersigned; a transcript is of record. The issues of service connection for a right shoulder condition, a back condition, a bilateral flat feet condition, allergic rhinitis, 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 The Veteran has not been diagnosed as having a bilateral knee condition. CONCLUSION OF LAW Service connection for a bilateral knee condition is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA satisfied the duties to notify and assist in the appeal for service connection for a bilateral knee condition, and neither the Veteran nor her representative has asserted any error as to the duties. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The Veteran was provided a VA examination regarding this claim, and the Board finds the examination to be adequate upon which to adjudicate the merits of this appeal. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Here, during the May 2016 Board hearing, the undersigned identified the issue on appeal and focused on the elements necessary to substantiate the claim and evidence that could assist the Veteran in substantiating the claim. The Veteran has not suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) were satisfied. Legal Criteria, Factual Background, and Analysis Service connection will be granted if it is shown that the Veteran has a disability resulting from an injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in line of duty, in active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection on a direct basis, the record must contain: (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 (Fed. Cir. 2004). Disabilities diagnosed after separation will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2017). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt in resolving each such issue shall be resolved in favor of the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends she has a bilateral knee condition related to her military service, to include wearing the wrong size boots during her deployment, or due to a back condition. On October 2011 VA examination, the examiner declined to diagnose any knee conditions other than right knee pain. There are no other medical records showing a diagnosed right or left knee condition. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The Veteran has not submitted any medical evidence that shows she has a diagnosed bilateral knee condition during the appellate period or a diagnosis close in time to the appeal period. The October 2011 VA examiner did not diagnose any knee conditions. Although the Veteran is competent to discuss symptoms, she is not competent to provide statements regarding the diagnosis of any such disability. To the extent the Veteran contends she has knee pain, generally, pain is not a disability for which service connection can be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); see also Brammer, 3 Vet. App. at 225. Here, because there is no diagnosis of a bilateral knee condition, service connection cannot be granted. Brammer, 3 Vet. App. 223. The competent evidence is against a finding of a bilateral knee condition at any time relevant to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a bilateral knee condition is denied. REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered regarding the remaining issues on appeal. On August 2015 VA shoulder examination, the examiner noted the Veteran did not have a diagnosed right shoulder disability. However, the Veteran submitted July 2004 radiology records noting an impression consistent with an acromioclavicular (AC) separation. Therefore, an opinion is needed as to whether the Veteran has residuals of an AC separation, taking into consideration her lay statements, which is related to service. The Veteran had a VA back examination in October 2011, which noted she had L5 sacralization that was congenital and less likely than not aggravated by her military service. Because the examiner failed to comment on July 2004 radiology records showing spondylolysis at L3 on the left side and spondylolisthesis of L3 on 4, a new VA examination is needed that takes into consideration these records. On August 2015 VA feet examination, the examiner noted the Veteran did not have a diagnosed foot condition, to include flat feet. However, during her May 2016 Board hearing, the Veteran testified that she had recently seen a VA podiatrist to be fitted for arch supports. Therefore, a new examination is needed to determine whether she now has a diagnosed foot condition related to service. The August 2015 VA examiner also stated that allergic rhinitis clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression due to service, as there was no evidence of significant worsening. However, since that opinion, the Veteran testified that prior to her deployment, allergy testing revealed she had seasonal allergies, but when she returned, new testing indicated she had 14 new allergens. Another opinion is needed that takes into consideration her lay testimony of worsened symptoms. On August 2015 VA examination, the examiner also stated chilblains was less likely than not due to service because symptoms in service were different from symptoms consistent with chilblains. The Board notes this opinion is inadequate, as it seems to be based on lack of an in-service diagnosis. See 38 C.F.R. § 3.303 (d) (2017). As well, during her hearing, the Veteran provided testimony that suggested her skin disability, diagnosed as chilblains, was related to a bilateral flat feet condition. Therefore, a new examination is needed. Accordingly, the case is REMANDED for the following action: 1. The AOJ should secure for association with the record updated (to the present) records of any/all VA treatment the Veteran has received for the issues on appeal. The Veteran should also be requested to authorize VA to obtain any additional private medical records, and any identified records should be obtained. 2. After completing directive (1), the AOJ should arrange for a VA evaluation of the Veteran to ascertain the etiology of a right shoulder disability. Based on the record, the examiner should provide a response to the following: (a) Identify all diagnosed right shoulder conditions. (b) As to any/each diagnosed right shoulder condition, is it at least as likely as not (a 50% or higher degree of probability) that the disability is related to service? The rationale for this opinion must include some discussion of the July 2004 medical records showing acromioclavicular separation, the Veteran's statements and testimony concerning her current symptoms, and her testimony relating her shoulder pain to carrying her weapon during service. Detailed reasons for all opinions should be provided. 3. After completing directive (1), the AOJ should arrange for a VA evaluation of the Veteran to ascertain the etiology of a back disability. Based on the record, the examiner should provide a response to the following: (a) Identify all diagnosed back disabilities. (b) For each diagnosed back disability, state whether it is acquired or congenital. If a congenital disorder exists, the examiner should state whether it is a disease or defect (Note: A disease is capable of improvement or deterioration while a defect is static.) (c) If a congenital disease is present, the examiner should render a medical opinion as to whether the congenital disease permanent worsened beyond normal progress during the Veteran's military service, to include due to her testimony of jumping out of a truck and pinching her sciatic nerve. (d) If there was permanent worsening of a congenital disease during service, the examiner should state whether the worsening was consistent with the natural progress of the disease, or whether it was beyond the natural progress of the disease. (e) If a congenital defect is present, the examiner should render a medical opinion as to whether it is at least as likely as not that there was a superimposed disease or injury during military service that resulted in additional disability. (f) If an acquired (non-congenital) disorder exists, the VA examiner should state whether there is clear and unmistakable (obvious and manifest) evidence that the Veteran's back disability existed prior to her active service. (g) If it is the opinion that the Veteran's back condition(s) did pre-exist service, the examiner should state whether the back condition(s) was clearly and unmistakably not aggravated (permanent worsening beyond normal progress) by any of the Veteran's periods of active duty, to include due to her testimony of jumping out of a truck and pinching her sciatic nerve. In responding to these questions, the examiner should note that temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, in contrast with symptoms, has worsened. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. (h) If the answer to (f) above is negative, the Veteran is presumed sound at service entrance. Therefore, the examiner should state whether it is at least as likely as not (a 50% or higher degree of probability) that a back disability is related to service, to include due to her testimony of jumping out of a truck and pinching her sciatic nerve. Detailed reasons for all opinions should be provided. 4. After completing directive (1), the AOJ should arrange for a VA evaluation of the Veteran to ascertain the etiology of a bilateral flat feet condition. Based on the record, the examiner should provide a response to the following: (a) Identify all diagnosed feet disabilities, to include flat feet. (b) As to any/each diagnosed feet condition, is it at least as likely as not (a 50% or higher degree of probability) that the disability is related to service? The rationale for this opinion must include some discussion of the Veteran's testimony that she was recently fitted for arch supports by a VA podiatrist. Detailed reasons for all opinions should be provided. 5. After completing directive (1), the AOJ should arrange for a VA evaluation of the Veteran to ascertain the etiology of allergic rhinitis. Based on the record, the examiner should provide a response to the following: (a) The examiner should state whether any allergic rhinitis clearly and unmistakably preexisted active duty service. (b) If allergic rhinitis clearly and unmistakably preexisted service, the examiner should opine as to whether there is clear and unmistakable evidence that such pre-existing allergic rhinitis did not undergo an increase in the underlying pathology, i.e., was not aggravated by active service. If there was an increase in severity of allergic rhinitis during active service, the examiner should opine as to whether that increase was clearly and unmistakably due to the nature progression of the disorder. (c) If the examiner concludes that allergic rhinitis did not preexist service, he or she should provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any current allergic rhinitis is related to service. Detailed reasons for all opinions should be provided. 6. After completing directive (1), the AOJ should arrange for a VA evaluation of the Veteran to ascertain the etiology of a skin disability, including chilblains. Based on the record, the examiner should provide a response to the following: (a) Identify all diagnosed skin disabilities, to include chilblains. (b) As to any/each diagnosed skin disability, is it at least as likely as not (a 50% or higher degree of probability) that the disability is related to service? Detailed reasons for all opinions should be provided. 7. The AOJ should then review the obtained VA examination reports to ensure that the opinions contained therein are responsive to the questions posed. 8. The AOJ should then review the record and readjudicate the claims on appeal. If any issue remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and her representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. 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. §§ 5109B, 7112 (2012). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs