Citation Nr: 18145518 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-12 409A DATE: October 29, 2018 ORDER Entitlement to service connection for low back disability is denied. Entitlement to service connection for bilateral ankle condition is denied. Entitlement to service connection for bilateral knee/leg condition is denied. Entitlement to service connection for bilateral lower extremity neuropathy is denied. REMANDED Entitlement to service connection for right shoulder strain is remanded. Entitlement to service connection for gastroesophageal reflux disorder (GERD) is remanded. Entitlement to service connection for bilateral foot condition is remanded FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a low back disability. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of any bilateral ankle condition. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of bilateral knee/leg condition. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of bilateral lower extremity peripheral neuropathy. CONCLUSIONS OF LAW 1. The criteria for service connection for low back disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for bilateral ankle condition are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for bilateral knee/leg condition are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for bilateral lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2001 to November 2004 in the United States Air Force. Service Connection 1. Entitlement to service connection for lumbar spine disability is denied. The Veteran contends that she has a lumbar spine disability that is etiologically related to active duty service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of any lumbar spine disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records (STRs) indicate that she was treated for back pain on one instance during active duty that the March 2013 VA examiner characterized as acute and transitory, given the lone record and the report of a February 2004 Magnetic Resonance Imaging (MRI) which noted the Veteran’s spine was normal. The March 2013 VA examiner evaluated the Veteran and determined that, while she experienced subjective symptoms of lower back pain, she did not have a diagnosis of any lumbar spine disability. Further, despite treatment from March 2008 to October 2015, VA treatment records do not contain a diagnosis of a lumbar spine disability. The Veteran has reported subjective symptoms of chronic lower back pain since service. The Veteran is competent to state what she experiences. The March 2013 VA examiner considered her reports of pain, but objective testing showed normal range of motion and strength; no functional impact or impairment was shown. Consequently, the Board gives more probative weight to the competent medical evidence as it is based on a full range of physical tests on the Veteran’s lower back and a review of her full medical history. The Veteran’s competent lay statements, in contrast, have not identified functional impairment to warrant consideration of the Veteran’s low back pain as a disability for VA purposes. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). 2. Entitlement to service connection for bilateral ankle condition is denied. The Veteran contends that she has a bilateral ankle disability that is etiologically related to active duty service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of any bilateral ankle disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The March 2013 VA examiner evaluated the Veteran and determined that, while she experienced subjective symptoms of ankle pain, she did not have a diagnosis of any bilateral ankle disability. Further, despite treatment from March 2008 to October 2015, VA treatment records do not contain a diagnosis of a bilateral ankle disability. The Board has considered the Veteran’s reports of ankle pain; however, the March 2013 VA examination did not find that the Veteran’s ankle pain manifests with painful or limited range of motion and did not cause any functional impact or impairment to warrant consideration of the Veteran’s ankle pain as a disability for VA purposes. Saunders, 886 F.3d at 1356. Entitlement to service connection for bilateral ankle condition is denied. 3. Entitlement to service connection for bilateral knee/leg condition is denied. The Veteran contends that she has a bilateral knee disability that is etiologically related to active duty service. Specifically, the Veteran contends that she fell down the stairs on the way to physical training and her knees swelled up and that she has experienced bilateral knee pain since. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of any bilateral knee or leg disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The March 2013 VA examiner evaluated the Veteran and determined that, while she experienced subjective symptoms of knee pain, she did not have a diagnosis of any bilateral knee or leg disability. Further, despite treatment from March 2008 to October 2015, VA treatment records do not contain a diagnosis of a bilateral ankle disability. The Board has considered the Veteran’s reports of knee pain; however, the March 2013 VA examination did not find that the Veteran’s ankle pain manifests with painful or limited range of motion and did not cause any functional impact or impairment to warrant consideration of the Veteran’s ankle pain as a disability for VA purposes. Saunders, 886 F.3d at 1356. 4. Entitlement to service connection for bilateral lower extremity neuropathy is denied. The Veteran contends that she has bilateral lower extremity peripheral neuropathy that is etiologically related to active duty service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of any bilateral lower extremity peripheral neuropathy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The March 2013 VA examiner evaluated the Veteran and determined that she does not have a diagnosis of any bilateral lower extremity peripheral neuropathy. Further, despite treatment from March 2008 to October 2015, VA treatment records do not contain a diagnosis of a bilateral lower extremity peripheral neuropathy. REASONS FOR REMAND 1. Entitlement to service connection for right shoulder strain is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for right shoulder strain because no VA examiner has adequately opined whether the Veteran’s current right shoulder strain is etiologically related to a documented in-service right shoulder injury. The Veteran underwent a VA examination for her right shoulder in March 2013. The Veteran was diagnosed with a right shoulder strain. The VA examiner’s opinion stated that the in-service right shoulder was “acute and transitory” and that considering this fact in the context of the passage of time since the injury and a lack of subjective or objective evidence of continuity of symptoms makes it less likely than not that the right shoulder strain is etiologically related to the in-service right shoulder injury. However, this rationale does not take into account the Veteran’s statement that she has experienced right shoulder pain since the in-service injury and the pain has “worsened over time” and causes physical impairment with lifting and carrying. 2. Entitlement to service connection for GERD is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for GERD because no VA examiner has opined whether the Veteran’s current GERD diagnosis is etiologically related to service, to include in-service treatment for vomiting. The Veteran underwent a VA examination for GERD in March 2013. Although a diagnosis of GERD was explicitly noted on the examination, the opinion stated that the Veteran did not have any current diagnosis of GERD. The opinion also stated that the Veteran’s STRs did not indicate any treatment for GERD but failed to address the Veteran’s in-service treatments for vomiting and sore throat. 3. Entitlement to service connection for bilateral foot condition is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for bilateral foot condition because no VA examiner has adequately opined whether the Veteran’s pre-existing bilateral foot condition was aggravated by her active duty service. The Veteran’s entrance examination clearly indicates that the Veteran had mild asymptomatic pes planus. Thus, the current claim is for service-connected aggravation of that disability. U.S.C. § 1153; Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). The opinion obtained on remand must address whether there was an increase in disability during service, and if so, whether that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable (obvious or manifest) evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right shoulder strain is at least as likely as not related to her in-service right shoulder injury. In providing this opinion the examiner must specifically address the Veteran’s statements regarding continuity of right shoulder pain since her in-service injury and findings in the STRs of physical profiles related to the right shoulder and treatment that appears more than acute and transitory. A complete rationale must be provided for any opinion offered. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s GERD is at least as likely as not related to active duty service. In providing this opinion the examiner must specifically address the in-service treatment for vomiting/nausea and sore throat. 3. Schedule the Veteran for an examination by an appropriate clinician to determine whether the preexisting asymptomatic pes planus was aggravated during service. The examiner should answer the following: (i) does the evidence show that the preexisting pes planus was aggravated by service, and; if so was any increase in due to the natural progression of the disease? Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition itself, as contrasted with mere symptoms, has worsened. A complete rationale must be provided for any opinion offered. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. McLeod