Citation Nr: 18145596 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-20 390 DATE: October 29, 2018 ORDER The Board having determined that new and material evidence has not been presented, reopening of the claim of entitlement to service connection for left ankle arthrosis is denied. The Board having determined that new and material evidence has not been presented, reopening of the claim of entitlement to service connection for right ankle arthrosis is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for fecal incontinence is denied. Entitlement to service connection for urinary incontinence is denied. Entitlement to service connection for major depressive disorder (MDD) is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed May 1982 rating decision, the Veteran was denied entitlement to service connection for a bilateral ankle condition diagnosed as bilateral ankle arthrosis. 2. The evidence associated with the claims file subsequent to the May 1982 rating decision is cumulative or redundant of the evidence previously of record, or does not relate to an unestablished fact necessary to substantiate the claims. 3. The Veteran does not have a left hip disability that had its onset during active service or is otherwise etiologically related to his active service, and left hip arthritis was not present to a compensable degree within one year of the Veteran’s separation from active service. 4. The Veteran does not have a right hip disability that had its onset during active service or is otherwise etiologically related to his active service, and right hip arthritis was not present to a compensable degree within one year of the Veteran’s separation from active service. 5. The Veteran does not have a left knee disability that had its onset during active service or is otherwise etiologically related to his active service, and left knee arthritis was not present to a compensable degree within one year of the Veteran’s separation from active service. 6. The Veteran does not have a right knee disability that had its onset during active service or is otherwise etiologically related to his active service, and right knee arthritis was not present to a compensable degree within one year of the Veteran’s separation from active service. 7. The Veteran does not have fecal incontinence that had its onset during active service or is otherwise etiologically related to his active service. 8. The Veteran does not have urinary incontinence that had its onset during active service or is otherwise etiologically related to his active service. 9. The Veteran does not have MDD that had its onset during active service or is otherwise etiologically related to his active service, and a psychosis was not present to a compensable degree within one year of the Veteran’s separation from active service. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen a claim of entitlement to service connection for left ankle arthrosis. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for right ankle arthrosis. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 4. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 5. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 6. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 7. The criteria for service connection for fecal incontinence have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018) 8. The criteria for service connection for urinary incontinence have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). 9. The criteria for service connection for MDD have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1981 to February 1982. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Claim to Reopen – Bilateral Ankle Arthrosis In a May 1982 decision, the Veteran was denied entitlement to service connection for a bilateral ankle condition based on a finding that the disability was not related to active service as it was determined the bilateral ankle condition pre-existed his active service and was not aggravated by his active service. The Veteran did not appeal that decision. The pertinent evidence that has been received since the May 1982 rating decision includes lay statements from the Veteran, in which he reported he tripped during service and injured his ankles for which he received treatment during service. And a statement from the Veteran’s friend in which she reported she knew the Veteran after his separation from service and he always had a limp and told her he was injured during service. The Board finds that while the evidence added to the record is new, as it was not previously considered by VA, it is not material as it does not specifically address the reason the claim was previously denied. In this regard, the Veteran has not submitted any evidence indicating that his claimed bilateral ankle arthrosis either did not preexist his active service, or that his preexisting disability was aggravated by service. The Board acknowledges that the Veteran has reported he fell while in service and injured his ankles. However, the Veteran’s STRs were of record at the time of the prior denial and do document treatment for ankle problems while the Veteran was in service. As such, the Veteran’s lay statements are cumulative and redundant. Therefore, the Board finds that new and material evidence has not been presented sufficient to reopen the Veteran’s claims of entitlement to service connection for right and left ankle disabilities. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claims, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Claims The Veteran maintains that he has bilateral hip disabilities, bilateral knee disabilities, fecal and urinary incontinence, and MDD that are etiologically related to his active service. The Veteran’s service treatment records (STRs) are silent for complaints of, or treatment for hip disabilities, knee disabilities, fecal and urinary incontinence, and MDD during active service. Post-service treatment records do not indicate the Veteran was diagnosed with any hip disability, knee disability, fecal incontinence, urinary incontinence, or MDD. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during, or contemporary to, the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, there is no evidence of record showing the Veteran to have a diagnoses of hip disabilities, knee disabilities, fecal and/or urinary incontinence, or MDD. Congress has 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 (1992). The Board acknowledges that a VA medical examination or medical opinion has not been obtained in response to the claims of entitlement to service connection for bilateral hip disabilities, bilateral knee disabilities, fecal and urinary incontinence, and MDD. VA is obliged to provide a VA examination or obtain a medical opinion when: (1) there is competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the Veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) the evidence indicates that the current disability or symptoms may be associated with service or with another service-connected disability, and (4) there is not sufficient medical evidence to make a decision. 38 C.F.R. § 3.159 (c)(4) (2016); Charles v. Principi, 16 Vet. App. 370 (2002). In this case, there is no competent evidence of record indicating that the Veteran has bilateral hip disabilities, bilateral knee disabilities, fecal and/or urinary incontinence, or MDD that are related to active service. Therefore, the Board finds that the medical evidence currently of record is sufficient to decide the claims and no VA examinations or medical opinions are warranted. Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to service connection for bilateral hip disabilities, bilateral knee disabilities, fecal and urinary incontinence, and MDD is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional development is required before the claims on appeal are decided. 1. Service Connection – Back Disability The Veteran contends that he had a low back disability that is as a result of physical exertion during his active service. Service treatment records (STRs) are silent for complaints of, or treatment for a low back disability while the Veteran was in active service. However, the Veteran has reported that he first experienced low back pain while in active service and that the pain has continued since that time. The Board notes that the Veteran is competent to report when he first experienced low back pain and that the symptoms have continued. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in this respect. A review of the post-service treatment records indicate that the Veteran’s low back disability has been diagnosed as mild osteoarthritis. The Veteran was afforded a VA examination in June 2014 for his claimed back disability. At that time, the VA examiner determined that there was no diagnosis for a back disability. The examiner then stated that the Veteran’s low back condition was still under work up, and thus unknown. The VA examiner then opined that the Veteran’s back disability was not etiologically related to his active service. In this regard, the examiner stated that the Veteran’s back disability is less likely than not the result of service as there is no medical evidence to support that he injured his back in service and care did not start for a back condition for about 10 years after his time in service. The Board finds the July 2014 VA examination inadequate to decide the claim. In this regard, the VA examination opinion is internally inconsistent. Specifically, the examiner determined the Veteran did not have a back disability, and then stated that the Veteran’s low back condition is unknown at this time and is still under work up. Moreover, the VA examiner failed to adequately consider the Veteran’s lay statements of a fall injury during active service. As the opinion is not adequate, it is not a sufficient basis to support a denial of entitlement to service connection. Therefore, the Board finds that a new VA examination should be obtained to determine the nature and etiology of the Veteran’s back disability. 2. Service Connection – Neck Disability The Veteran contends that he has a neck disability that is as a result of physical exertion during his active service. Service treatment records (STRs) are silent for complaints of, or treatment for a neck disability while the Veteran was in active service. However, the Veteran has reported that he first experienced neck pain while in active service and that the pain has continued since that time. The Board notes that the Veteran is competent to report when he first experienced neck pain and that the symptoms have continued. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in this respect. A review of the post-service treatment records indicate that the Veteran’s neck disability has been diagnosed as mild degenerative disc disease with a polyoid cauliflower type lesion (neck cyst). A review of the record shows that a medical opinion regarding the nature and etiology of the Veteran’s neck disability has yet to be obtained. In light of the Veteran’s post-service treatment records and diagnosis of a neck disability, and the Veteran’s contentions of a neck disability during and since active service; the Board finds that a medical opinion should be obtained to determine the nature and etiology of the Veteran’s neck disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. TDIU Regarding the TDIU issue, the Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for TDIU should be deferred pending final dispositions of the claim currently on appeal. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of his back disability. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently present back disability is etiologically related to service. The examiner should specifically address the Veteran’s lay statements regarding his fall injury during basic training. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s neck disability. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any neck disability is etiologically related to service. The rationale for all opinions expressed must be provided. 4. Confirm that the VA examination reports and all opinions provided comport with this remand, and undertake any other development found to be warranted. 5. Then, readjudicate the remaining issues on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel