Citation Nr: 18145453 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-15 493 DATE: October 29, 2018 ORDER Entitlement to service connection for a bilateral ankle condition is denied. REMANDED Entitlement to a compensable evaluation for left foot surgery with scar is remanded. Entitlement to a compensable evaluation for low back condition is remanded. Entitlement to service connection for a bilateral knee condition, to include as secondary to a service connected condition, is remanded. Entitlement to service connection for a bilateral hip condition, to include as secondary to a service connected condition, is remanded. Entitlement to service connection for mandibular hypoplasia is remanded. FINDING OF FACT There is no competent and credible evidence establishing that the Veteran currently suffers from a bilateral ankle condition. CONCLUSION OF LAW The criteria for establishing service connection for a bilateral ankle condition have not been met. 38 U.S.C.§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from January 1995 to August 2000. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2013, rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for a bilateral ankle condition Service treatment records show that in June 1999 the Veteran twisted her ankle. Upon discharge, there is no mention of an ankle condition. VAMC records are negative for any complaints of ankle pain, or any diagnosed ankle condition. The Veteran underwent an examination in January 2013. The examiner indicated there was no indication of an ankle injury in service. The examiner also indicated there is no pathology of either ankle to render a diagnosis. To date the Veteran has submitted no evidence of an ankle condition. Although the Veteran is competent to describe her symptoms, it is now well established that lay persons without medical training, such as the Veteran, are not competent to opine on matters requiring medical expertise, such as the diagnosis of an ankle disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, medical testing and expertise is required to determine the diagnosis of symptoms arising from an ankle condition, as well as to determine the etiology of any such condition. The Veteran has not been shown to have medical expertise to render a competent medical opinion as to the diagnosis or etiology of her claimed ankle condition. In any event, the Board concludes that the medical evidence, which reveals no findings of an ankle disability during the appeal period is of greater probative value than the Veteran’s contentions. VA records show the Veteran’s contacts with health professionals have been numerous, during which time no diagnosis or treatment for an ankle disability is shown. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See U.S.C §1110. In the absence of proof of a present disability, there can be no valid claim. Brammer, supra; see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes). Although there is medical evidence of record dating from over 20 years ago to the present, the preponderance of the competent evidence of records shows no findings of an ankle injury or condition present during the appeal period. Accordingly, in the absence of competent and credible evidence of an ankle condition during the period of the claim, service connection is not warranted on any basis and the claim must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to a compensable evaluation for left foot surgery with scar is remanded. 2. Entitlement to a compensable evaluation for low back condition is remanded. The Veteran was last examined in January 2013. In an April 2015, statement in support, the Veteran’s representative asserted the 2013 examination failed to address her reports of pain. The Veteran has asserted that her conditions have significantly worsened since last examined. The Boards find that an additional evaluation would be helpful in resolving the issues raised by the instant appeal. 3. Entitlement to service connection for a bilateral knee condition, to include as secondary to a service connected condition, is remanded. 4. Entitlement to service connection for a bilateral hip condition, to include as secondary to a service connected condition, is remanded. The Veteran’s STRs document complaints of painful knees, and a painful back, secondary to walking incorrectly. STRs document reports of increased pain with prolonged walking. In the April 2015 statement in support, the Veteran’s representative asserted that the Veteran was in need for an examination addressing her knee condition, and that the Veteran’s knee and hip conditions are a result of her service-connected foot and low back conditions. The Veteran has not been afforded a VA examination. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. The low threshold for triggering the duty to provide an examination has been crossed. An examination is needed to determine if the Veteran’s bilateral knee and bilateral hip conditions, was aggravated by her service connected condition, or is otherwise directly related to her service 5. Entitlement to service connection for mandibular hypoplasia. During service, in 1995 the Veteran had teeth 1 and 16 removed, and in 1999, she had tooth number 17 removed. STRs indicate in April 2000, she had a BSSO mandibular advancement surgery, which is a bilateral sagittal split osteotomy. STRs document in July 2000, radiographic findings revealed metal screws in her mandible. It is not clear if the Veteran has a disorder of the mandible that is eligible for compensation and there is a question as to whether her BSSO was a result of a congenital defect. The Veteran has not been afforded a VA examination. The Board notes that congenital or developmental defects are not “diseases” or “injuries” within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. Service connection is generally precluded for any such defects. However, evidence of additional disability resulting from a disorder that is superimposed upon and aggravates a congenital defect, during service may be service-connected. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127. The Board finds that a VA examination is necessary in determining whether the Veteran’s disorder is related to service. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to evaluate the current severity of her left foot surgery with scar, and low back condition. 2. Schedule the Veteran for an appropriate VA examination regarding the claimed bilateral hip and bilateral knee disabilities. The examiner should answer the following questions: (a.) Is it at least as likely as not that bilateral hip and bilateral knee disabilities were caused or aggravated (worsened beyond its natural progression) by the service-connected low back or foot disabilities? (b.) If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the bilateral hip or bilateral knee disabilities, by the service-connected disability. (c.) If not, is it at least as likely as not that the Veteran’s bilateral hip and bilateral knee disabilities are otherwise related to an event, injury, or disease in active duty. 3. List the Veteran’s current diagnosis/diagnoses related to her BSSO and whether she has any current disorder of the mandible/jaw. (a) Is any diagnosed mandible/jaw condition a congenital defect or disease? [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating, but a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990).] (b) For any congenital defect: is it at least as likely as not (i.e., probability of 50 percent or more) that the mandible/jaw disability was subject to a superimposed disease or injury during service which resulted in additional disability? (c) For any disability of the mandible/jaw that is a congenital disease, state whether it is clear and unmistakable that the condition preexisted the Veteran’s military service. (d) If so, is it also clear and unmistakable that the preexisting mandible/jaw disability was not aggravated (i.e., permanently worsened) during the Veteran’s military service? The examiner is asked to address the Veteran’s contentions, and to provide a rationale for all opinions reached. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel