Citation Nr: 18143379 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 13-00 818 DATE: October 19, 2018 ORDER Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right foot disability, including pes planus, hallux valgus, and plantar fasciitis is remanded. Entitlement to a rating in excess of 30 percent on an extraschedular basis for residuals of a hairline fracture of the left big toe is remanded. Entitlement to a total disability rating due to service-connected disabilities based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. There is no competent evidence of a right hip disability during or just prior to the pendency of the claim. 2. There is no competent evidence of a left knee disability during or just prior to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1986 to February 1987 and October 1989 to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2006 and December 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in September 2015. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for a right hip disability. 2. Entitlement to service connection for a left knee disability. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based on the competent evidence of record, the Board finds that the preponderance of the evidence is against the claims of entitlement to service connection for right hip and left knee disabilities, under any theory of entitlement, as there is no indication of current diagnoses of right hip or left knee disabilities at any point just prior to and since the filing of his claim. While the Veteran’s service treatment records (STRs) include a September 1986 complaint of left knee pain for one week, and an April 1990 STR notes a complaint of occasional bilateral knee pain, there is no evidence of a post-service left knee or right hip disabilities. Notably, on February 2016 VA examination, the Veteran specifically denied any symptomatology in relation to the right hip and left knee. To the extent the Veteran may have endorsed right hip or left knee pain during the appeal period, which he is competent to report, the record is negative for any evidence of functional impairment of earning capacity due to such pain during the appeal period. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). To the extent the Veteran generally asserts that he preserves for appeal “all legal errors the VA Regional Office may have made . . . in deciding this appeal” (see January 2013 VA Form 9), such vague, unspecific assertions of general due process errors do not amount to a specific procedural argument in this case and thus need not be addressed. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (the Board’s obligation to read filings in a liberal manner does not require the Board or the Veterans Court to search the record and address procedural arguments when the claimant fails to raise them before the Board). In this case, the Board must deny the claims for service connection for right hip and left knee disabilities due to the absence of proof of current disability. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable in the instant appeal, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 3. Entitlement to service connection for a right knee disability. The February 2016 VA examination as to the right knee is inadequate, as the examiner did not address relevant STRs (to include an October 1990 report of intermittent right knee pain and recurrent laxity) or a February 2002 right knee MRI noting the possibility of an old injury. Moreover, the examiner did not adequately address secondary service connection. Accordingly, the Board finds this matter must be remanded for an addendum opinion.   4. Entitlement to service connection for a low back disability. The February 2016 VA nexus opinion in relation to the low back is inadequate, as it is based on an inaccurate factual premise, as the examiner noted no in-service complaints when the Veteran complained of back pain for months in November 1990. See Reonal v. Brown, 5 Vet. App. 458 (1993). Moreover, the examiner did not adequately address secondary service connection. Accordingly, the Board finds this matter must be remanded for an addendum opinion. 5. Entitlement to service connection for a right foot disability, including pes planus, hallux valgus, and plantar fasciitis is remanded. The Board finds the February 2016 VA opinion in relation to the feet is inadequate, as there was no mention of a post-service diagnosis of plantar fasciitis and the examiner did not address whether the Veteran’s pre-existing pes planus underwent an increase in severity during service. Thus, an addendum opinion is needed on remand. 6. Entitlement to a rating in excess of 30 percent on an extraschedular basis for residuals of a hairline fracture of the left big toe is remanded. 7. Entitlement to a TDIU is remanded. As the Veteran’s TDIU claim is inextricably intertwined with the claims remaining on appeal, action on that matter is deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Moreover, the issue of the Veteran’s entitlement to an extraschedular rating for his residuals of a hairline fracture of the left big toe is intertwined with the TDIU claim remanded herein. Brambley v. Principi, 17 Vet. App. 20 (2003). Any outstanding treatment records should also be secured.   The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records. 3. Then obtain an addendum opinion addressing the etiology of the Veteran’s right knee disability. The claims file must be provided to the examiner. No additional examination is needed, unless the examiner determines otherwise. Based on review of the record, the examiner should address the following: Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disability: (a) had its onset in service or is otherwise related to the Veteran’s military service. In providing this opinion, please address the February 1990 diagnosis of early patella femoral pain syndrome, the April 1990 STR noting knee pain and request for a physical profile extension, the October 1990 STR noting intermittent right knee pain, recurrent laxity and meniscal tear, and well as the February 2002 right knee MRI diagnosing prepatellar and infrapatellar bursitis that was possibly from an old injury. (b) is proximately due to his left great toe disability; or (c) has been aggravated (worsened beyond natural progression) by his left great toe disability. A detailed rationale for all opinions is requested. If an opinion cannot be rendered without resorting to speculation, the examiner should state why that is so, to include a recitation of any missing facts necessary to render a non-speculative opinion. 4. Then obtain an addendum opinion addressing the etiology of his low back disability. The claims file must be provided to the examiner. No additional examination is needed, unless the examiner determines otherwise. Based on review of the record, the examiner should address the following: Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back disability: (a) had its onset in service or is otherwise related to the Veteran’s military service. In providing this opinion, please address the Veteran’s complaint of back pain for months in a November 1990 service treatment record, as well as the November 2000 workman’s compensation injury after falling and injuring his back. (b) is proximately due to his left great toe disability; or (c) has been aggravated (worsened beyond natural progression) by his left great toe disability. A detailed rationale for all opinions is requested. If an opinion cannot be rendered without resorting to speculation, the examiner should state why that is so, to include a recitation of any missing facts necessary to render a non-speculative opinion. 4. Then obtain an addendum opinion addressing the etiology of his foot disabilities. The claims file must be provided to the examiner. No additional examination is needed, unless the examiner determines otherwise. Based on review of the record, the examiner should address the following: (a) Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed plantar fasciitis and hallux valgus: (1) had their onset in service or are otherwise related to the Veteran’s military service. In providing this opinion, please address the Veteran’s complaint of back pain for months in a November 1990 service treatment record, as well as the November 2000 workman’s compensation injury after falling and injuring his back. (2) are proximately due to his left great toe disability; or (3) have been aggravated (worsened beyond natural progression) by his left great toe disability. (b)(1) Did pre-existing pes planus increase in severity during active service? Please consider the Veteran’s lay statements in addressing this question. If so, please also opine as to whether (2) there is clear and unmistakable (obvious, undebatable) evidence that such increase was due to the natural progress of the disease. A detailed rationale for all opinions is requested. If an opinion cannot be rendered without resorting to speculation, the examiner should state why that is so, to include a recitation of any missing facts necessary to render a non-speculative opinion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Marley, Counsel