Citation Nr: 1802053 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-29 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a rating in excess of 40 percent disabling for lumbar strain, with sacroillitis and lumbar degenerative disc disease, status post laminectomy prior to December 3, 2012, and from February 1, 2013. 2. Entitlement to a compensable rating for bilateral shin splints. 3. Entitlement to a compensable rating prior to September 1, 2015 and in excess of 10 percent disabling thereafter for bilateral hip trochanteric pain syndrome and bursitis with snapping hip syndrome, status post stress reaction. 4. Entitlement to service connection for a bilateral shoulder condition. 5. Entitlement to service connection for residuals status post fracture of the 3rd metatarsal shaft of the right foot. 6. Entitlement to service connection for residuals status post injury or stress fractures of the left mid foot. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2005 to June 2006, from August 2006 to December 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board notes that the Veteran has alleged that she is unable to work due to her service-connected conditions. Furthermore, the Board notes that when evidence of unemployability is submitted during the course of an appeal from an assigned rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in the present case, the RO has considered the Veteran's claim for a TDIU and denied such in a September 2016 rating decision. As the Veteran has not expressed disagreement with such decision, it is not on appeal. The issues of entitlement to higher ratings for lumbar spine condition, bilateral shin splints, and bilateral hip condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At no time during the pendency of the claim does the Veteran have a current diagnosis of a bilateral shoulder condition, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. 2. At no time during the pendency of the claim does the Veteran have a current diagnosis for residuals status post fracture of the 3rd metatarsal shaft of the right foot, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. 3. At no time during the pendency of the claim does the Veteran have a current diagnosis for residuals status post injury or stress fractures of the left mid foot, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral shoulder condition have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for residuals status post fracture of the 3rd metatarsal shaft of the right foot have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for residuals status post injury or stress fractures of the left mid foot have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein decided, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board has reviewed all of the evidence in the Veteran's claims file, including her service treatment records (STRs), post-service treatment records, VA examination reports, hearing testimony, and statements submitted in support of his claims. In this regard, the Board notes that, although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, all of the extensive evidence of record. Indeed, it has been held that while the Board must review the entire record, it need not discuss each piece of evidence in rendering a decision. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis will focus specifically on the evidence that is needed to substantiate the Veteran's claims for service connection. I. Service connection claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6 (a). Active military, naval, or air service also includes any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292 (1991). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Bilateral shoulder condition The Veteran contends that she currently suffers from bilateral shoulder pain as a result of her service. Service treatment records are silent for any complaints, treatment or diagnosis of a bilateral shoulder condition. Post-service the Veteran complained of bilateral shoulder pain after repetitive motion of stocking goods at her job. During a VA examination in January 2011, the Veteran reported bilateral shoulder pain. Upon examination, the examiner found the Veteran's shoulders to be normal. The examiner opined that the Veteran's bilateral shoulder pain was related to her repetitive motion of stocking goods above her head and shoulders at work. The Board finds that service connection for a bilateral shoulder condition cannot be established, as the Veteran does not have an in-service illness, injury or event and does not have a current disability during the pendency of her claim. Furthermore, the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. See McClain, supra; Romanowsky, supra. Specifically, the evidence of record contains no diagnosis in this regard, and objective testing, such as range of motion testing and x-rays, were all normal. The Board has considered the Veteran's allegations that she has experienced shoulder pain since service. In this regard, while she is competent to report having pain in her shoulders, the evidentiary record does not reflect that this pain has been attributed to any specific disability. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub. nom. , Sanchez-Benitz v. Principi, 259 F.3d 1356 (fed. Cir 2001)(a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted; "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted"). Furthermore, the Board finds that any determination as to the presence of the claimed disability is medical in nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1977 (Fed. Cir. 2007). Thus, the Veteran, as a layperson, is not competent to offer a diagnosis with respect to the cause of her shoulder pain as she does not possess the requisite specialized knowledge. In this regard, such a diagnosis requires medical expertise and testing. Therefore, as such is a complex medical question, the Veteran is not competent to offer a diagnosis in this regard. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Veteran's claim must be denied, as the evidence of record shows no current disability for which service connection can be granted with respect to the Veteran's shoulders. See Brammer, supra (in the absence of proof of the claimed disability, there can be no valid claim). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a bilateral shoulder condition. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. B. Right foot The Veteran contends that she suffered a fracture to the 3rd right metatarsal bone while in service and that she currently suffers from pain as a result of such injury. Service treatment records dated in November 2005 reflect that the Veteran suffered a fracture of the 3rd right metatarsal bone while on ACDUTRA. As such is considered an injury under 38 C.F.R. § 3.6, the Board finds that the Veteran meets the first requirement for direct service connection. Therefore, the next question is whether the Veteran has a current diagnosis. Following the receipt of the Veteran's November 2010 claim for service connection for status post fracture of 3rd metatarsal shaft of the right foot, she underwent a VA examination in January 2011. At such time, the Veteran reported that she had bilateral foot pain on prolonged standing and walking. Upon physical examination, the examiner found no evidence of objective painful motion, weakness, edema, instability or tenderness of both feet. The examiner noted no evidence of abnormal weight bearing. X-rays of the Veteran's feet were normal, and the examiner concluded that the Veteran had a normal right foot and that there were no residuals from the fracture of the 3rd metatarsal shaft of the right foot. The examiner opined that prior to the Veteran returning to work, she did not experience pain and that her current pain was less likely than not caused by or the result of the healed bilateral foot fractures that occurred during the Veteran's military service. The Board finds that service connection for residuals of a fracture to the 3rd right metatarsal bone cannot be established, as the Veteran does not have a current disability during the pendency of her claim. Furthermore, the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. See McClain, supra; Romanowsky, supra. In this regard, the evidence of record contains no diagnosis, and objective testing, such as X-rays were normal. The Board has considered the Veteran's allegations that she has experienced bilateral foot pain since service. In this regard, while she is competent to report having pain in her feet, the evidentiary record does not reflect that this pain has been attributed to any specific disability. See Sanchez-Benitez, supra. Furthermore, with respect to the Veteran's allegations of pain, as noted above, she is not competent to contribute such to a medical diagnosis, as she is a layperson who does not possess the requisite specialized knowledge. Woehlaert, supra. Therefore, the Veteran's claim must be denied, as the evidence of record shows no current disability for which service connection can be granted with respect to the Veteran's right foot. See Brammer, supra (in the absence of proof of the claimed disability, there can be no valid claim). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for residuals status post fracture to the 3rd right metatarsal bone. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R.. § 3.102; Gilbert, supra. C. Left foot The Veteran contends that she suffered a fracture of her left foot during service and that she continues to have pain as a result. Service treatment records dated May 2006 reflect evidence of status post injury or stress fractures to the left foot while the Veteran was on ACDUTRA. As such is considered an injury under 38 C.F.R. § 3.6, the Board finds that the first element of service connection is met. Therefore the next question, is whether the Veteran has a current disability. Following the receipt of the Veteran's November 2010 claim for service connection for residuals status post injury or stress fractures of the left mid foot, she underwent a VA examination in January 2011. At such time, the Veteran reported bilateral foot pain with prolonged standing or walking. Upon physical examination, the examiner found no evidence of objective painful motion, weakness, edema, instability or tenderness of the bilateral feet. The examiner found no evidence of abnormal weight bearing. X-rays of the Veteran's feet were normal. The examiner concluded that the Veteran had a normal left foot and that there were no residuals from the stress fracture of the left foot. The examiner opined that prior to the Veteran returning to work, she did not experience any pain and that her current pain was less likely than not caused by or the result of the healed foot fracture which occurred during the Veteran's service. The Board finds that service connection for residuals status post injury or stress fractures of the left mid foot cannot be established, as the Veteran does not have a current disability during the pendency of her claim. Furthermore, the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. See McClain, supra; Romanowsky, supra. In this regard, the evidence of record contains no diagnosis, and objective testing, such as X-rays were normal. The Board has considered the Veteran's allegations that she has experienced foot pain service. In this regard, while she is competent to report having pain in her feet, the evidentiary record does not reflect that this pain has been attributed to any specific disability. See Sanchez-Benitez, supra. Furthermore, with respect to the Veteran's allegations of pain, as noted above, she is not competent to contribute such to a medical diagnosis, as she is a layperson who does not possess the requisite specialized knowledge. Woehlaert, supra. Therefore, the Veteran's claim must be denied, as the evidence of record shows no current disability for which service connection can be granted with respect to the Veteran's left foot. See Brammer, supra (in the absence of proof of the claimed disability, there can be no valid claim). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for residuals status post injury or stress fractures of the left mid foot. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a bilateral shoulder condition is denied. Service connection for residuals status post fracture of the 3rd metatarsal shaft of the right foot is denied. Service connection for residuals status post injury or stress fractures of the left mid foot is denied. REMAND Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). Relevant to the Veteran's claims for increased ratings for her lumbar spine, bilateral shin splints, and bilateral hip condition, the Court has held that, where the record does not adequately reveal the current state of claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The record reflects that the Veteran was most recently afforded VA examinations for her back and hips in June 2016 and her shin splints in September 2015. The Board finds that contemporaneous examinations are necessary as the Veteran's conditions are degenerative in nature and she has alleged worsening symptoms. In light of the nature of the Veteran's conditions and her allegations, the Board finds that a remand is required in order to determine the Veteran's current level of impairment with regard to her service-connected lumbar spine condition, shin splints, and bilateral hip condition. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Remand is also required so that range of motion testing can be conducted pursuant to a recent decision issued by the Court in Correia v. McDonald, 28 Vet. App. 158 (2016). The new examinations should include specific findings regarding the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. Regarding the Court's further ruling that the Veteran's "normal" joint should be tested for comparison to the service-connected joint, the Board notes that the Veteran is service connected for both hips, and, as such, there is not a "normal" paired joint that can be measured as a point of comparison. Finally, due to the amount of time which will pass while on remand, updated treatment records should be obtained for consideration in this appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to her disabilities. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159 (e). 2. After obtaining any outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of her service-connected lumbar spine condition, shin splints, and bilateral hip condition. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner(s), and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. (A) With regard to the Veteran's lumbar spine condition, the examiner should conduct range of motion testing of the lumbar spine, specifically noting whether - upon repetitive motion of the Veteran's low back - there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to pain on use, including during flare-ups; weakened movement; excess fatigability; or incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the lumbar spine is used repeatedly. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. Further, the examiner should identify any neurological pathology related to the service-connected lumbar spine disability and fully describe the extent and severity of those symptoms, including a statement of which nerves are involved and the extent of the impairment. The examiner should specifically indicate whether the Veteran has bowel or bladder impairment, and/or bilateral lower extremity radiculopathy as a result of her back disability. Also, the examiner should state whether the Veteran's service-connected lumbar spine disability causes intervertebral disc syndrome, and, if so, the examiner should document the number of weeks, if any, during the past 12 months that the Veteran has had "incapacitating episodes," defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The examiner must record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. If this testing cannot be done, the examiner should clearly explain why this is so. In doing so, the examiner should provide a retrospective medical opinion on the Veteran's range of motion throughout the time period of the claim. That is, with consideration of the evidence of record and her history, comment on the historical severity of the Veteran's range of motion testing on both active and passive motion and in weight-bearing and nonweight-bearing. If this opinion cannot be provided, the examiner should clearly explain why this is so, including discussing whether the prior VA examinations are accurate representations of the Veteran's disability level. The examiner should also describe the functional impact of the Veteran's back disability. The rationale for any opinion offered must be provided. (B) With regard to the Veteran's bilateral shin splints, the examiner should fully describe any and all functional impairment attributable to the Veteran's shin splints, to include a description of the extent and severity of any associated knee and/or ankle disability that is found to be present. To the extent feasible, the examiner should distinguish between functional impairment attributable to service-connected shin splints versus other, non-service-connected disorders. A complete rationale for all opinions should be provided. (C) With regard to bilateral hip condition, the examiner should describe the nature and severity of all manifestations of the Veteran's right and left hip conditions. The examiner should conduct range of motion testing of both hips, specifically noting whether - upon repetitive motion- there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to pain on use, including during flare-ups; weakened movement; excess fatigability; or incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the hips are used repeatedly. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. The examiner must record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. If this testing cannot be done, the examiner should clearly explain why this is so. In doing so, the examiner should provide a retrospective medical opinion on the Veteran's range of motion throughout the time period of the claim. That is, with consideration of the evidence of record and her history, comment on the historical severity of the Veteran's range of motion testing on both active and passive motion and in weight-bearing and nonweight-bearing. If this opinion cannot be provided, the examiner should clearly explain why this is so, including discussing whether the prior VA examinations are accurate representations of the Veteran's disability level. The examiner should also describe the functional impact of the Veteran's right and left hip disabilities. The rationale for any opinion offered must be provided. 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). (CONTINUED ON NEXT PAGE) 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 (West 2014). ______________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs