Citation Nr: 18144720 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-03 742 DATE: October 25, 2018 ORDER 1. Entitlement to service connection for traumatic brain injury (TBI) is denied. 2. Entitlement to service connection for a left knee disability is denied. 3. Entitlement to service connection for a bilateral ankle disability is denied. 4. Entitlement to service connection for a bilateral shoulder disability, to include degenerative joint disease, is denied. 5. Entitlement to service connection for a lumbar spine disability, to include degenerative disease, is denied. 6. Entitlement to service connection for a bilateral eye disability, to include retinopathy, cataracts and dry eye syndrome, is denied. 7. Entitlement to service connection for a bilateral foot disability, to include gout and dermatophytic infection, is denied. 8. Entitlement to service connection for headaches is denied. FINDINGS OF FACT 1. TBI has not been diagnosed. 2. A left knee disability has not been diagnosed. 3. A bilateral ankle disability has not been diagnosed. 4. A bilateral shoulder disability, to include degenerative joint disease, did not have its onset in service, was not manifested to a compensable degree within one year of separation from service, and is not otherwise related to service. 5. A lumbar spine disability, to include degenerative disease, did not have its onset in service, was not manifested to a compensable degree within one year of separation from service, and is not otherwise not related to service. 6. A bilateral eye disability, to include retinopathy, cataracts and dry eye syndrome, did not have its onset during service and is not otherwise related to service. 7. A bilateral foot disability, to include gout and dermatophytic infection, did not have its onset in service and is not otherwise related to service. 8. Headaches did not manifest during service and are not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for TBI have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a bilateral ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a bilateral shoulder disability, to include pain and degenerative joint disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for a lumbar spine disability, to include degenerative disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for a bilateral eye disability, to include retinopathy, cataracts and dry eye syndrome, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for a bilateral foot disability, to include gout and dermatophytic infection, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1971 to March 1972. The Veteran was scheduled for a Travel Board hearing for October 31, 2017. On October 9, 2017, the Veteran requested a postponement of his hearing until April 2018 to acquire new and material evidence. However, no additional medical evidence was submitted. VA rescheduled the Veteran’s hearing for July 17, 2018. The Veteran did not show for the July 17, 2018 Travel Board hearing. The failure to show for the hearing effectively withdraws the hearing request. On August 2, 2018, the Board sent the Veteran correspondence to confirm whether he wanted to assert his right for a hearing before the Board. The Veteran had 30 days to respond and by the end of the 30-day period he did not respond to the Board’s August 2, 2018 correspondence. Therefore, set forth the below is the Board’s decision in this matter. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (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. Service connection may also be established under 38 C.F.R. § 3.303(b), if a chronic disease, such as arthritis, is shown in service, and subsequent manifestations of the same chronic disease, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b), where a disability in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Additionally, where a veteran served 90 days or more of active service, and the chronic disease becomes manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Congress specifically limited entitlement to service-connected benefits to cases where there is a current 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). 1. Entitlement to service connection for TBI. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a bilateral ankle disability. The Veteran claims entitlement to service connection for TBI, a left knee disability and a bilateral ankle disability. After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim for TBI, a left knee disability and a bilateral ankle disability. Significantly, service treatment records (STRs) do not document complaints, treatment, or diagnosis of the claimed TBI, a left knee disability or a bilateral ankle disability. The Veteran’s separation examination showed that clinical evaluations of the head and lower extremities were normal. Additionally, the post-service treatment records do not document diagnoses of the claimed disabilities during period on appeal. Although the Veteran’s lay statements of record are probative insofar as they report observable symptoms, he is not competent to diagnose complex issues, such as TBI, a left knee disability, and a bilateral ankle disability, which require medical expertise and which the Veteran has not shown to have such expertise. For the above reasons, the preponderance of the evidence is against a finding that the Veteran has had current disabilities of TBI, a left knee disability or a bilateral ankle disability during the appeal period. As such, the preponderance of evidence weighs against such claims, there is no reasonable doubt to be resolved, and the claims are denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for a bilateral shoulder disability, to include degenerative joint disease. After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for a bilateral shoulder disability. Regarding presumptive service connection, the Board notes that the first documentation of degenerative joint disease in the Veteran’s shoulders was in December 2013, which is more than 40 years after separation from service. This does not establish that arthritis was manifested within one year of service discharge, and therefore service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309(a). As to direct service connection, the Board finds that the Veteran meets the first required element because of he has current diagnoses of bilateral shoulder degenerative joint disease. As to an in-service disease or injury, the STRs do not document a disease or injury of the shoulders. Additionally, in the Report of Medical History completed by the Veteran at separation from service, he specifically denied a history of painful or trick shoulder. Further, in the Report of Medical Examination, completed by a medical examiner at separation from service, the Veteran received a normal clinical evaluation for his upper extremities, which includes both shoulders. Also, the Veteran was assigned a final physical profile rating of U-1. Under the physical profile (PULHES), the U stands for upper extremities and a 1 is the highest possible rating. See 9-3(c)(1) Army Regulation 40-501, Change 35. The Veteran’s physical profile for each category was 1, the highest level of fitness. The Veteran contends that he has been experiencing pain in his bilateral shoulders since he was discharged from service as a result of his time as a paratrooper. The Board is willing to concede he made jumps as a paratrooper but does not find that there is evidence of a disease or injury in service pertaining to the shoulders. The contemporaneous evidence does not support this allegation in that the Veteran specifically denied a history of painful or trick shoulder at separation from service, despite noting other physical and mental abnormalities, and clinical evaluation of his upper extremities was normal. Additionally, the evidence of record does not include reports of bilateral degenerative joint disease of the shoulders and bilateral shoulder pain until 2013, which is more than 40 years after discharge from service. This evidence tends to establish that the Veteran’s bilateral shoulder disability had its onset many years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). While the Veteran is competent to report bilateral shoulder pain, he is not competent to provide a nexus between the current diagnosis of degenerative joint disease and service, as the etiology of this disability is a complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. There is no competent evidence of a nexus between the current diagnosis of degenerative joint disease and service. In conclusion, the Board finds that the preponderance of the evidence is against the claim for service connection for a bilateral shoulder disability, to include degenerative joint disease. 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 the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 5. Entitlement to service connection for a lumbar spine disability, to include degenerative disease. After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for a lumbar spine disability. In the February 2013 VA examination report, the examiner diagnosed the Veteran with “lumbar spine degenerative disease.” It is unclear whether the diagnosis is degenerative disc disease or degenerative joint disease, although it does not change the outcome of the claim. Thus, to the extent that lumbar spine degenerative disease is a diagnosis of arthritis, presumptive service connection is not established because the diagnosis was first documented in February 2013, which is approximately 40 years after separation from service, and does not support a finding that it was manifested within one year following service discharge. Accordingly, the Veteran’s claim for service connection for a lumbar spine disability is denied under the presumptive provision for service connection. 38 C.F.R. § 3.309(a). Regarding direct service connection, the Veteran meets the first required element for a direct service connection claim because he has a current diagnosis for lumbar spine degenerative disease. As to an in-service disease or injury, the Veteran’s STRs show that he was diagnosed with and treated for a low back strain in November 1972. Therefore, the Veteran meets the second required element for a direct service connection claim. The third and final element for a direct service connection claim is a relationship or nexus between the Veteran’s current disability and his service. The Board finds that the preponderance of the evidence is against a nexus between the Veteran’s current diagnosis and his service. Specifically, the Veteran received a normal clinical evaluation for his spine at separation from service. Also, the Veteran was assigned a final physical profile rating of L-1. Under the physical profile (PULHES), the L stands for lower extremities. This factor includes the lower back musculature and lower spine (lower lumbar and sacral) in regard to strength, range of motion, and general efficiency. With respect to each rating, the number 1 indicates that an individual possesses a high level of medical fitness and, consequently, is medically fit for any military assignment. See 9-3(c)(1) Army Regulation 40-501, Change 35. Further, in February 2013, a VA examiner opined that the Veteran’s lumbar spine degenerative disease was not incurred in, caused by or a result of any in-service injury, event or illness. The examiner’s rationale was that the Veteran was seen for an episode of low back pain during service in November 1972 and was diagnosed with a low back strain. Further, the examiner noted that the Veteran’s in-service x-rays of his lower back were negative and that after November 1972 there were no other STRs documenting low back treatment during service. Moreover, the examiner reported that the degenerative changes, noted in a lumbar spine x-ray from February 2013, are common as persons age and are typically related to the aging process, therefore it was not unusual to see degenerative changes in the lumbar spine of a person the Veteran’s age. In addition, the examiner noted that the Veteran’s degenerative changes were noted 40 years after separation from service. The Board finds that the February 2013 VA examiner’s opinion and rationale are probative and persuasive evidence. The examiner’s opinion is based upon an examination of the Veteran, a thorough review of the evidence of record including a review of the Veteran’s STRs. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). More importantly, and as noted by the examiner, there are 40 years between separation from service in 1972 and when the Veteran was diagnosed with degenerative disease of the lumbar spine, which tends to show that the disability did not have its onset in service and is not otherwise related to service. To the extent that the Veteran alleges that his lumbar spine disability is related to service, the etiology of lumbar spine degenerative disease is a complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. Regardless, his opinion is outweighed by the February 2013 VA examiner, who, as noted above, provided a rationale for her opinion. For the reasons described above, the Board finds that the preponderance of the evidence is against the claim for service connection for a lumbar spine disability, to include degenerative disease. 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 the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 6. Entitlement to service connection for a bilateral eye disability, to include retinopathy, cataracts and dry eye syndrome. After a careful review of the evidence of record the Board finds that the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for a bilateral eye disability, to include retinopathy, cataracts and dry eye syndrome. As to direct service connection, the Veteran meets the first required element for a direct service connection claim because he was diagnosed with retinopathy, cataracts and dry eye syndrome. As to an in-service disease or injury, the preponderance of the evidence is against such a finding pertaining to the Veteran’s eyes. For example, the STRs are negative for any complaints of or treatments related to the Veteran’s eyes. Further, the Board notes that the Veteran specifically denied any eye problem in the Report of Medical History, completed by the Veteran at separation from service. Also, the Veteran received at normal clinical evaluation for his eyes in a Report of Medical Examination completed by a medical examiner at separation from service. Moreover, the diagnoses for retinopathy, cataracts and dry eye syndrome are noted in VA treatment records in November 2014 without evidence that the diagnoses are related to service. These diagnoses are more than 40 years after service, which tends to weigh against a finding that the diagnoses are related to service. See Maxson v. Gober, 230 F.3d at 1333. While the Veteran is competent to report eye problems, he is not competent to provide a nexus between the current diagnoses and service, as the etiology of these disabilities is a complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. For the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a bilateral eye disability, to include retinopathy, cataracts and dry eye syndrome. 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 the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 7. Entitlement to service connection for a bilateral foot disability, to include gout and dermatophytic infection. After a careful review of the evidence of record the Board finds that the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for a bilateral foot disability. Here, the Veteran meets the first required element for a direct service connection claim because the evidence shows that he has a current disability of gout and dermatophytic infection in both of his feet. Regarding an in-service injury, event or disease, the STRs show that the Veteran complained of left foot friction from playing basketball in December 1971 and 10 days later reported that his foot was alright. Therefore, the Veteran meets the second required element for a direct service connection claim. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus to service. Specifically, the Veteran denied foot trouble at separation from service on the Report of Medical History. Also, in the Report of Medical Examination at separation from service completed by a medical examiner, the Veteran had a normal clinical evaluation of his feet. As stated above, at separation from service, the Veteran was assigned the final physical profile rating of L-1, which denotes the highest possible rating for the Veteran’s feet and lower back. This evidence tends to show that the December 1971 complaint involving the left foot did not develop into a chronic foot disability. Additionally, in February 2013, a VA examiner opined that the Veteran’s gout and dermatophytosis of his bilateral feet were not incurred in, caused by or a result of an in-service injury, event or illness. The examiner’s rationale was that the Veteran’s STRs did not document gout, the Veteran was diagnosed with gout in 2010, and the friction blister noted on the Veteran’s left foot during service had resolved. Further, the examiner reported that the Veteran was initially diagnosed with gout in an emergency room in Charlotte, North Carolina in 2010. The examiner also noted that the Veteran specifically denied any foot trouble on the Report of Medical History. The Board finds that the persuasive and probative evidence of record is the February 2013 VA examination. The examiner reviewed the evidence of record, examined the Veteran and considered the Veteran’s complaints. The examiner opined that the evidence does not support a relationship between the in-service left foot friction blister reported by the Veteran and the Veteran’s current bilateral foot disability. Moreover, the Board notes that the Veteran’s gout was initially diagnosed in 2010, which is more than 30 years after separation from service and the Veteran’s dermatophytosis was diagnosed by the examiner in 2013, which is more than 40 years after separation from service. As noted above, the passage of many years between discharge from service and medical documentation of a claimed disability is a factor which tends to weigh against the claim for service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent that the Veteran alleges that his bilateral foot disability is related to service, the etiology of gout and dermatophytosis is a complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. Regardless, his opinion is outweighed by the February 2013 VA examiner, who, as noted above, provided a rationale for her opinion. For the reasons described above, the Board finds that the preponderance of the evidence is against the claim for service connection for a bilateral foot disability, to include gout and dermatophytic infection. 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 the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 8. Entitlement to service connection for headaches. After a careful review of the evidence of record the Board finds that the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for headaches. Here, the Veteran meets the first required element for a direct service connection claim because the VA treatment records show that the Veteran complained of headaches. The STRs show that the Veteran complained of a slight headache in April 1971 and a headache with chills and a fever in September 1971. Therefore, the Veteran meets the second required element for a direct service connection claim. Regarding evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus between his current disability and service. For example, the Veteran denied frequent or severe headaches on the Report of Medical History he completed at separation from service. Further, in February 2013, a VA examiner opined that the Veteran’s tension headaches are less likely than not incurred in, caused by or the result of any in-service injury, event or illness. The examiner’s rationale was that during service, the Veteran was not treated for a chronic headache condition. More importantly, in the rationale, the examiner reported that the Veteran did not have recurring headaches until he began a stressful job with a power company in the 1990s. The examiner also noted that the Veteran’s tension headaches began over 20 years after separation from service. The Board finds that the persuasive and probative evidence of record is the February 2013 VA examination. The examiner reviewed the evidence of record, examined the Veteran and considered the Veteran’s complaints. The examiner opined that the evidence of record does not support a relationship between the in-service complaints of a headaches and the Veteran’s current headaches because, per the Veteran, his headaches began after working for a power company which was more than 20 years after separation from service. The Board again finds that the passage of many years between discharge from service and medical documentation of a claimed disability is a factor which tends to weigh against the claim for service connection. See Maxon v. Gober, 230 F.3d at 1333. To the extent that the Veteran alleges that his headaches are related to service, the etiology of headaches is a complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. Regardless, his opinion is outweighed by the February 2013 VA examiner, who, as noted above, provided a rationale for her opinion. In conclusion, the Board finds that the preponderance of the evidence is against the claim for service connection for headaches. 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 the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Morgan, Associate Counsel