Citation Nr: 18144505 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-31 192 DATE: October 24, 2018 ORDER 1. Entitlement to service connection for a disability manifested by numbness in the left toes, is denied. REMANDED 2. Entitlement to service connection for a neck disability, to include as secondary to service-connected disabilities, is remanded. 3. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected disabilities, is remanded. 4. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities, is remanded. 5. Entitlement to service connection for a left hip disability, to include as secondary to service-connected disabilities, is remanded. 6. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disabilities, is remanded. FINDING OF FACT The Veteran is not shown to have (or at any time during the pendency of the instant claim to have had) a disability manifested by left foot numbness (beyond his service-connected fibromyalgia). CONCLUSION OF LAW Service connection for a disability manifested by numbness in the left toes is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from August 2004 to July 2006. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision, which, in relevant part, denied service connection for disabilities of the right hip, left hip, right ankle, and numbness of the left toes, and an August 2016 rating decision, which denied service connection for a neck disability and for OSA. 1. Service connection for a disability manifested by numbness in the left toes, is denied. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury in service. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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 issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Factual Background The Veteran’s service treatment records (STRs) are silent regarding treatment or diagnosis pertaining to left toe numbness. On April 2006 medical examination, his feet were normal on clinical evaluation. [An April 2006 Report of Medical Board notes a diagnosis of bilateral subtalar joint instability; it does not mention left toe numbness.] On January 2007 VA general medical examination, the Veteran’s gait was normal. Neurological examination was “completely negative. There [were] no neurological deficits.” An April 6, 2015 private clinical record notes complaints of bilateral foot pain; the Veteran did not report left toe numbness. The diagnoses were “pain in limb” and “neuropathy other spec idiopathic peripheral.” Electromyography (EMG) and nerve conduction studies (NCS) were ordered. A May 7, 2015 private clinical record notes complaints of intermittent numbness in both feet, and that EMG and NCS were both normal. In June 2015, VA received a back conditions disability benefits questionnaire (DBQ) from the Veteran’s private chiropractor. The Veteran reported middle and lower back pain which radiates into both lower extremities, and numbness distally to the toes. On examination, sensory testing of the left lower extremity was normal. The Veteran reported right lower extremity pain and paresthesias, but denied left lower extremity pain and paresthesias. His chiropractor diagnosed right lower extremity radiculopathy, but indicated that his left lower extremity was “not affected.” On October 2015 VA spine examination, objective testing showed that left lower extremity sensory function was normal. Radiculopathy was not diagnosed; the examiner reported that the Veteran does not have neurologic abnormalities or findings related to his thoracolumbar spine disability. An April 2017 VA physical medicine rehabilitation consult record notes that the Veteran’s “neurological signs are unremarkable.” In June 2018, VA received a May 2018 private medical statement from Dr. M.B. She specifically noted that she had not examined the Veteran, but that she reviewed the relevant portions of his claims file. Regarding his claimed numbness in the left toes, she wrote, “…it is unclear what the true extent or functional significance of this issue is. However, the patient does have documented medical reasons for pain or numbness/paresthesia in his lower extremities.” She noted that he is service-connected for a lumbar spine disability and for fibromyalgia, and opined that “his many long-term service connected medical issues may be causing his foot paresthesias.” [Dr. M.B. included a reference to an UpToDate medical article about fibromyalgia in adults, which notes that fibromyalgia symptoms may include numbness and tingling, as well as paresthesias in both arms and legs.] Analysis The threshold matter that must be addressed here (as in any claim seeking service connection) is whether there is competent evidence that the Veteran currently has (or during the pendency of the claim has had) the disability for which service connection is sought. The record does not show that the Veteran has (or during the pendency of the instant claim has had) a disability manifested by numbness of the left toes (other than his already service-connected fibromyalgia). Although an April 2015 private record contains a provisional diagnosis of idiopathic peripheral neuropathy based on the Veteran’s complaint of bilateral foot pain, subsequent objective testing has not identified a disability manifested by numbness of the left toes. Notably, May 2015 EMG and NCS were normal. Furthermore, both the June 2015 private spine DBQ and the October 2015 VA spine examination report reflect that objective testing showed no evidence of left lower extremity sensory limitations or radiculopathy. The Board acknowledges the May 2018 private medical statement of record, i.e. that the Veteran’s service-connected back and fibromyalgia may be causing paresthesias, but finds the statement less probative than the competent, objective evidence of record. The opinion is conclusory as Dr. M.B. did not examine the Veteran, stated that “it is unclear what the true extent…of this issue is,” and opined that any complaints may be related to his service-connected disabilities. Although the Veteran is competent to report lay-observable symptoms such as numbness, pain/numbness alone, without a diagnosed or identifiable underlying malady or condition, is not in and of itself a compensable disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Whether there is underlying pathology for the symptoms constituting a separate compensable disability (beyond his already service-connected fibromyalgia) is a medical question beyond the capability of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). He has not submitted any competent evidence showing he has a separate disability manifested by numbness of the left toes, and does not cite to any factual data supporting that he has such a disability. In the absence of proof of a current disability manifested by numbness of the left toes, there is no valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges the recent case of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the U.S. Court of Appeals for the Federal Circuit held that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability under 38 U.S.C. 1110 if it results in functional impairment of earning capacity. However, it is neither alleged nor shown that the Veteran’s reported numbness of the left toes has caused functional impairment of earning capacity. Id. at 1367-68. Accordingly, the benefit of the doubt rule does not apply; the appeal in this matter must be denied. Gilbert v. Derwinski, 1 Vet. App. at 55. REASONS FOR REMAND Review of the record found that further development is needed for VA to fulfill its duty to assist mandated under the VCAA. 2., 3., 4. Service connection for a neck disability, a right ankle disability, and OSA is remanded. The Veteran appears to be seeking service connection for a neck disability, right ankle disability, and OSA under a secondary service connection theory of entitlement. See May 2018 private medical statement. The record reflects that the Veteran has current diagnoses of cervical strain and loss of normal curvature of the cervical spine (see June 2016 VA neck examination report), right achilles bursitis (see January 2012 private clinical record) and right ankle soft tissue swelling “which can be seen in the setting of ankle sprain” (see March 2017 ankle x-rays), and OSA (see April 2016 private nocturnal polysomnogram report). However, the medical opinions (both VA and private) regarding the etiology of such disabilities are inadequate for rating purposes. June 2016 VA neck and sleep apnea examination reports fail to address whether the disabilities are aggravated by the Veteran’s service-connected disabilities, including fibromyalgia (beyond noting that fibromyalgia can aggravate sleep apnea). [Although a December 2016 VA ankle examination report is of record, the report is silent regarding the etiology of any right ankle disability.] A March 2017 private medical statement from Dr. M.P. reports that the Veteran’s sleep apnea is a result of his fibromyalgia; however, that statement is conclusory (without rationale). The May 2018 private medical statement from Dr. M.B., which is not based on examination of the Veteran, is conclusory, speculative, and lacks adequate rationale. For example, Dr. M.B. wrote that the Veteran’s “cervical strain…could feasibly have formed due to his already unstable spinal conformation and fibromyalgia.” She wrote that his OSA “is more likely that not associated concurrently with his service-connected fibromyalgia as well as service-connected orthopedic issues,” but failed to apply the cited medical journal articles to the facts of this case. See Timberlake v. Gober, 14 Vet. App. 122, 130 (2000). Finally, regarding the right ankle, she opined that such disability is related to his service-connected disabilities because the right ankle “go[es] hand-in-hand with the rest of the service-connected issues” and “it does not make medical sense to presume that one ankle and both hips would somehow be spared the impact of all these service-connected orthopedic issues and concurrent fibromyalgia.” Accordingly, remand is necessary to obtain adequate medical opinions regarding the etiology of the Veteran’s neck, right ankle, and sleep apnea disabilities. 5., 6. Service connection for left and right hip disabilities is remanded. The Veteran appears to also be seeking service connection for left and right hip disabilities under a secondary service connection theory of entitlement. See May 2018 private medical statement. On review of the record, it is not clear whether the Veteran has a disability of the left or right hip separate from his already service-connected fibromyalgia (joint pain). The Board notes that an April 2017 VA physical medicine rehab consult record notes that “Thomas test is remarkable for significant hip flexor limitation bilaterally,” suggesting he may have a bilateral hip disability; notably, he has not been afforded a VA hip examination. The Board acknowledges that the May 2018 private medical statement concludes that “It is more likely than not that the patient has service connected bilateral hip…strain,” related to his service-connected disabilities, but fails to cite to the record for such a hip diagnosis. Notably, Dr. M.B. did not examine the Veteran, and the Board’s review of the record did not find such a diagnosis. Furthermore, the statement is conclusory in that it lacks adequate rationale. Additional development of the medical evidence is necessary to properly adjudicate the claims. As the case must be remanded for additional development, the Veteran will have the opportunity to submit (or identify for VA to obtain) any outstanding (i.e., those not already in the record) private treatment records pertaining to his claimed disabilities. Records of any VA treatment for his claimed disabilities since August 2017 (the date of the most recent VA treatment record associated to the record) may contain pertinent evidence, are constructively of record, and must be secured. The matters are REMANDED for the following: 1. Secure for the record all updated records of VA evaluations and treatment the Veteran has received for his claimed disabilities since August 2017 (when the most recent VA treatment records associated with the record are dated). Ask the Veteran to provide identifying information regarding all private evaluations or treatment he has received for his claimed disabilities, and to submit authorizations for VA to secure for the record complete outstanding clinical records from all providers identified, including specifically any updated records from the Buffalo Medical Group since March 2016. Obtain those records. 2. After the development requested above is completed, arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his neck, right ankle, and right and left hip disabilities. The Veteran’s entire record must be reviewed by the examiner in conjunction with the examination. On examination and interview of the Veteran and review of his record, the examiner should respond to the following: (a) Identify (by diagnosis) each neck disability entity found (or shown by the record during the pendency of this claim). [If cervical strain or loss of normal curvature are not found, please reconcile such finding with the diagnoses noted above.] (b) Identify the likely etiology for each neck disability entity diagnosed. Is it at least as likely as not (a 50% or better probability) that the disability was incurred or aggravated during the Veteran’s active service? (c) If the answer to (b) is No, is it at least as likely as not (a 50% or better probability) that the neck disability was caused or aggravated by the Veteran’s service-connected disabilities, to include fibromyalgia, lumbar strain, left ankle strain, bilateral knee strain, and bilateral foot strain? [The opinion must encompass aggravation.] (d) Identify (by diagnosis) each right ankle disability entity found (or shown by the record during the pendency of this claim). [If right achilles bursitis or ankle swelling is not found, please reconcile such finding with the diagnoses noted above.] (e) Identify the likely etiology for each right ankle disability entity diagnosed. Is it at least as likely as not (a 50% or better probability) that the disability was incurred or aggravated during the Veteran’s active service? (f) If the answer to (e) is No, is it at least as likely as not (a 50% or better probability) that the right ankle disability was caused or aggravated by the Veteran’s service-connected disabilities, to include fibromyalgia, lumbar strain, left ankle strain, bilateral knee strain, and bilateral foot strain? [The opinion must encompass aggravation.] (g) Does the Veteran have a left and/or right hip disability other than joint pain manifestations of his service-connected fibromyalgia? If so, please identify (by diagnosis) each hip disability entity found. If not, please reconcile such finding with the noted positive Thomas test in April 2017. (h) If the answer to (g) is Yes, is it at least as likely as not (a 50% or better probability) that the disability/ies was/were incurred or aggravated during the Veteran’s active service? (i) If the answer to (h) is No, is it at least as likely as not (a 50% or better probability) that the left and/or right hip disability/ies was/were caused or aggravated by the Veteran’s service-connected disabilities, to include fibromyalgia, lumbar strain, left ankle strain, bilateral knee strain, and bilateral foot strain? [The opinion must encompass aggravation.] The examiner must include rationale with each opinion. 3. Arrange for a sleep apnea examination of the Veteran to determine the most likely etiology of his diagnosed OSA. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. On examination/interview of the Veteran and review of his record, the examiner should respond to the following: (a) Identify the likely etiology for the Veteran’s diagnosed OSA. Is it at least as likely as not (a 50% or better probability) that such disability was incurred or aggravated during the Veteran’s active service? (b) If the answer to (a) is No, is it at least as likely as not (a 50% or better probability) that his OSA was caused or aggravated by his service-connected fibromyalgia. [The opinion must encompass aggravation.] The examiner must include rationale with each opinion. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel