Citation Nr: 18146357 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-35 726 DATE: October 31, 2018 ORDER Entitlement to service connection for a left ankle condition is denied. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. FINDING OF FACT The Veteran does not have a left ankle disability; nor does the Veteran’s pain amount to a functional impairment. CONCLUSION OF LAW The criteria for entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. §§ 101, 1101, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1989 to November 1992 and from October 1994 to November 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision of the rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction has since been transferred to the RO in Louisville, Kentucky. 1. Left ankle condition Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Because “Congress specifically limit[ed] entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability,” service connection cannot be granted “[i]n the absence of proof of a present disability.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when a veteran “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or “when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability,” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). “In the absence of proof of a present disability there can be no valid claim.” Brammer, supra. After a thorough review of the record, the Board finds that service connection is not warranted for the Veteran’s claimed left ankle disability. The evidence simply does not show that such a condition is present. In this regard, the Board notes that Congress has specifically limited service connection to instances where there is current disability that has resulted from disease or injury. See 38 U.S.C. § 1131. In the absence of a current disability, the analysis ends, and the claim for service connection for a left ankle disability cannot be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. In making this finding, the Board accords significant probative weight to the VA examination provided in June 2011. The Board finds that the findings of the June 2011 VA examiner to be the most probative evidence of record as to whether the Veteran presently has the claimed disability. Upon review of the pertinent medical history, physical examination, and appropriate diagnostic testing, the examiner noted that the Veteran does not have a left ankle disability. The Board is cognizant of Saunders v. Wilkie, 2018 U.S. App. LEXIS 8467 (2018), wherein the United States Court of Appeals for the Federal Circuit (Court) held that pain alone can constitute a disability for VA purposes when such pain amounts to functional impairment of earning capacity. In this case, the Board does not dispute the Veteran’s previous contentions that he experiences pain in his left ankle. However, the evidence of record does not show that the Veteran’s pain amounts to a functional impairment of earning capacity. In particular, report of the June 2011 VA examination reflects full range of motion of the left ankle. Similar findings were noted after repetitive-use testing. Physical examination revealed no evidence of swelling, effusion, instability, tenderness, redness, heat, abnormal movement, guarding of movement, deformity, malalignment, drainage or weakness. The examiner indicated there was no functional impairment of the left ankle. Muscle strength testing was noted as “5/5”. The evidence simply does not show that the Veteran’s reported pain amounts to functional impairment to establish a disability. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for a left ankle disability. 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 Veteran’s claim for service connection, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Bilateral knee condition is remanded. The Veteran contends that his bilateral knee disorder was incurred as a result of service. The Veteran indicated that he had knee problems after he returned from his last deployment in February 2011. See July 2016 VA Form 9. The Veteran underwent a VA examination in June 2011. The Veteran reported that his bilateral knee condition began in 1994 and he denied any specific injury to his knees. The Veteran noted that his symptoms included constant pain in the bilateral knees and legs aggravated by movement and exercise. The examiner diagnosed normal bilateral knees and noted that there was not enough evidence on examination to support a residual or chronic condition at this time. Medical treatment records since the June 2011 VA examination reflect a possible worsening of the Veteran’s disability. For instance, a January 2016 VA Primary Care Progress Note shows that the Veteran’s active problems included arthritis of knee. The Board lacks the medical experience necessary to determine the nature and etiology of such disabilities. As such, a VA examination commenting on the evidence of record is necessary. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). Additionally, the Board notes that in his July 2016 VA Form 9, the Veteran sought to raise an alternative theory of entitlement. Specifically, the Veteran raised entitlement to service connection for a bilateral knee condition to include as due to an undiagnosed painful joint condition due to Persian Gulf service. However, the Board notes that VA treatment records note arthritis of the knee. This diagnosis appears to exclude presumptive service connection consideration as due to undiagnosed illness. See Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006); Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004). In light of the surrounding circumstances, the Board finds that a remand is appropriate in this case to obtain a new examination regarding the Veteran’s claimed bilateral knee disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination, by an appropriate medical specialist, to determine the nature and etiology of the Veteran’s bilateral knee disorder. For each identified knee disorder, state whether it is at least as likely as not (a 50 percent probability or greater) that the disability had its onset in service or is otherwise etiologically related to his active service. (Continued on the next page)   2. The examiner must acknowledge review of the pertinent evidence of record, including the Veteran’s reports of symptom manifestation. All necessary examinations, tests, and studies should be conducted. 3. Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel