Citation Nr: 18147504 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-24 733A DATE: November 6, 2018 ORDER Entitlement to service connection for a left wrist condition is denied. Entitlement to service connection for a right hip condition is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for low sex drive is denied. REMANDED Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left leg/knee condition is remanded. Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for a left foot condition is remanded. Entitlement to service connection for a left eardrum condition is remanded. Entitlement to an initial compensable rating for left elbow degenerative arthritis, status post ulna fracture, is remanded. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD) and duodenal ulcer is remanded. Entitlement to an initial compensable rating for melanoma (facial spots/skin 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 or functional impairment relating to a left wrist 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 or functional impairment relating to a right hip disability. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, hearing loss for VA purposes. 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 relating to low sex drive. CONCLUSIONS OF LAW 1. The criteria for service connection for a left wrist condition 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 a right knee disability 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 hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. 4. The criteria for service connection for low sex drive 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 in the U.S. Marine Corps from December 1990 to December 2014 with service in Southwest Asia. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). 1. Entitlement to service connection for a left wrist condition A review of the medical evidence of record fails to establish a diagnosed left wrist disability at any time during the appeal period or proximate thereto. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Although the Veteran did experience left forearm pain in service, there is no indication that he was diagnosed with a chronic left wrist disorder or that he has experienced any left wrist disorder since discharge from service. The Board has thoroughly reviewed the Veteran’s VA treatment records and September 2014 VA examination and finds that there is no competent diagnosis of a left wrist disability. The Veteran denied any tenderness, pain on palpation, or functional impairment. The examiner also noted that there was no limitation of motion or abnormality on imaging. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of orthopedic medicine in the context of a negative physical examination. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran is certainly competent to report his symptoms, he is not competent to attribute his symptoms to a particular diagnosis or any diagnosis at all. See Jandreau v. Nicholson, 492 F.3s 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Moreover, the Veteran has not specifically asserted that he has a current left wrist disability or functional impairment, rather he has only generally claimed service connection for the left wrist. His general claim is not competent evidence of a diagnosis of a left wrist disability. Further, his opinion would also be significantly outweighed by the lack of diagnosis from VA examiner, who clearly holds the level of medical expertise to address the nature and etiology of his claimed disability. The Board is cognizant of the recent ruling of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In that case, the Federal Circuit found that the term “disability” as used in 38 U.S.C. 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Id., at 1368. In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Federal Circuit limited its holding, stating, “[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain…. To establish the presence of a disability, the veteran will need to show that his pain reaches the level of functional impairment of earning capacity.” In other words, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. In this case, there is no indication that the Veteran experiences functional impairment as a result of any left wrist complaints. As noted above, the September 2014 VA examiner found that he had full range of motion of the left wrist with no objective evidence of painful motion, no functional loss or impairment, and no impact on his ability to work. In light of the lack of functional impairment or clinical diagnosis, the evidence does not support a finding of a current left wrist disability. The Board notes that some of the Veteran’s other service connection claims are being remanded herein to obtain outstanding VA treatment records. However, there is no indication that those records are relevant to the left wrist claim. He has not claimed treatment for or symptoms of the left wrist and has not indicated that the outstanding VA treatment records are relevant to this claim. As such, this claim need not be remanded to obtain VA treatment records. Accordingly, the first element of Shedden/Caluza is not met for the left wrist claim. Service connection cannot be granted for a left wrist disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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 this claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. Entitlement to service connection for a right hip condition A review of the medical evidence of record fails to establish a diagnosed right hip disability at any time during the appeal period or proximate thereto. See McClain, supra; Romanowsky, supra. Although the Veteran did experience right hip pain in service, there is no indication that he was diagnosed with a chronic right hip disorder or that he has experienced any right hip disorder since discharge from service. The Board has thoroughly reviewed the Veteran’s VA treatment records and September 2014 VA examination and finds that there is no competent diagnosis of a right hip disability. The examiner indicated that there was no limitation of motion or functional loss or impairment. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of orthopedic medicine in the context of a negative physical examination. See Kahana, supra. While the Veteran is certainly competent to report his symptoms, he is not competent to attribute his symptoms to a particular diagnosis or any diagnosis at all. See Jandreau, supra; see also 38 C.F.R. § 3.159 (a)(1). Moreover, he has not specifically asserted that he has a current right hip disability or functional impairment, rather he has only generally claimed service connection for the right hip. His general claim is not competent evidence of a diagnosis of a right hip disability. Further, his opinion would also be significantly outweighed by the lack of diagnosis from VA examiner, who clearly holds the level of medical expertise to address the nature and etiology of his claimed disability. As noted above, the Board is cognizant of the recent ruling of the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, in this case, there is no indication that the Veteran experiences functional impairment as a result of any right hip complaints. As noted above, the September 2014 VA examiner found that he had full range of motion of the right hip with no objective evidence of painful motion and no functional loss or impairment. In light of the lack of functional impairment or clinical diagnosis, the evidence does not support a finding of a current right hip disability. The Board notes that some of the Veteran’s other service connection claims are being remanded herein to obtain outstanding VA treatment records. However, there is no indication that those records are relevant to the right hip claim. He has not claimed treatment for or symptoms of the right hip and has not indicated that the outstanding VA treatment records are relevant to this claim. As such, this claim also need not be remanded to obtain VA treatment records. Accordingly, the first element of Shedden/Caluza is not met for the right hip claim. Service connection cannot be granted for a right hip disability. See Brammer, supra. 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 this claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra. 3. Entitlement to service connection for bilateral hearing loss For the purpose of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A review of the medical evidence of record does not show the Veteran has a current hearing loss disability for VA purposes in either ear. At the September 2014 VA examination, audiometric testing results did not show an auditory threshold of 40 dB or higher at any of the above-referenced frequencies or auditory thresholds of 26 dB or greater for at least three of the above-referenced frequencies in either ear. Additionally, the reported Maryland CNC Test scores of 96 percent do not meet the VA definition of a hearing loss disability for either ear. See Brammer, supra; McClain, supra; Romanowsky, supra. Without such evidence, service connection for bilateral hearing loss cannot be granted. See Shedden/Caluza, supra. The Board has also considered the Veteran’s implied contention that he has bilateral hearing loss that rises to the level of a disability for VA purposes. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of audiology and audiometric testing. See Kahana, supra. While the Veteran is certainly competent to report that he has experienced a subjective decrease in hearing acuity, he is not competent to determine whether the decreased acuity he has experienced is such as to meet the regulatory definition of a hearing loss disability. Specific testing is needed to make that determination. His claim for service connection is not competent evidence of a diagnosis of bilateral hearing loss for VA purposes. The Board notes that some of the Veteran’s other service connection claims are being remanded herein to obtain outstanding VA treatment records. However, there is no indication that those records are relevant to the hearing loss claim. He has not claimed a decrease in hearing acuity since the September 2014 VA examination, nor has he indicated that the outstanding VA treatment records are relevant to this claim. Significantly, a July 2016 VA treatment record notes that he had not had a hearing examination since 2014. As such, this claim need not be remanded to obtain VA treatment records. Accordingly, the Board finds that the claim of entitlement to service connection for bilateral hearing loss must be denied. 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 of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra. 4. Entitlement to service connection for low sex drive A review of the medical evidence of record fails to establish a diagnosis relating to low sex drive at any time during the appeal period or proximate thereto. See McClain, supra; Romanowsky, supra. The Board has thoroughly reviewed the Veteran’s VA treatment records and September 2014 VA examination and finds that there is no competent diagnosis relating to low sex drive, erectile dysfunction (ED), or a low testosterone level. The examiner specifically noted that laboratory testing showed that the Veteran’s serum testosterone and PSA were normal. The Veteran declined a genital examination. In light of the normal tests and lack of examination, the examiner was unable to diagnose the Veteran with any disability relating to low sex drive or the male reproductive system. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of urologic medicine in the context of negative laboratory. See Kahana, supra. While the Veteran is certainly competent to report his symptoms, he is not competent to attribute his symptoms to a particular diagnosis or any diagnosis at all. See Jandreau, supra; see also 38 C.F.R. § 3.159 (a)(1). Although he has claimed that he has ED and low testosterone, there is no objective evidence to support this claim and he is not competent to provide such a diagnosis. Further, his opinion would also be significantly outweighed by the lack of diagnosis from VA examiner, who clearly holds the level of medical expertise to address the nature and etiology of his claimed disability. The Board notes that some of the Veteran’s other service connection claims are being remanded herein to obtain outstanding VA treatment records. However, there is no indication that those records are relevant to the low sex drive claim. He has not claimed treatment for or symptoms of low sex drive, ED, or low testosterone and has not indicated that the outstanding VA treatment records are relevant to this claim. As such, this claim also need not be remanded to obtain VA treatment records. Accordingly, the first element of Shedden/Caluza is not met for the low sex drive claim. Service connection cannot be granted for low sex drive. See Brammer, supra. 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 this claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra. REASONS FOR REMAND 1. Entitlement to service connection for a right knee condition is remanded. The Veteran was afforded a VA examination for his claimed right knee disability in September 2014. The examiner found that the Veteran did not have a current right knee disability and noted that he had no pain and full range of motion at that time. Subsequent to the examination, a July 2016 VA treatment record indicated that the Veteran was experiencing difficulty due to bilateral knee pain and that he received treatment through a private primary care provider (PCP). VA treatment record, July 2016. This record suggests that the Veteran may have functional impairment related to his right knee and that there may be outstanding private treatment records. As the presence of functional impairment, even in the absence of a specific diagnosis, may be sufficient to qualify as a disability for service connection purposes, the right knee claim must be remanded for a new VA examination to determine whether the Veteran has functional impairment from his right knee symptoms. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Additionally, the Veteran should be asked to identify any outstanding private treatment records and the RO should attempt to obtain them. 2. Entitlement to service connection for a left leg/knee condition is remanded. The Veteran was afforded a VA examination for his claimed left knee disability in September 2014. The examiner found that the Veteran did not have a current left knee disability and noted that he had no pain and full range of motion at that time. Subsequent to the examination, a July 2016 VA treatment record indicated that the Veteran was experiencing difficulty due to bilateral knee pain and that he received treatment through a private PCP. VA treatment record, July 2016. This record suggests that the Veteran may have functional impairment related to his left knee and that there may be outstanding private treatment records. As the presence of functional impairment, even in the absence of a specific diagnosis, may be sufficient to qualify as a disability for service connection purposes, the left knee claim must be remanded for a new VA examination to determine whether the Veteran has functional impairment from his left knee symptoms. See Saunders, supra. Additionally, the Veteran should be asked to identify any outstanding private treatment records and the RO should attempt to obtain them. 3. Entitlement to service connection for a right ankle condition is remanded. The Veteran was afforded a VA examination for his claimed right ankle disability in September 2014. The examiner found that the Veteran did not have a current right ankle disability. Subsequent to the examination, the Veteran submitted a VA ankle MRI report, noting multiple ankle diagnoses. MRI report, December 2017. It is not clear which ankle the report refers to, but the Board finds that it is sufficient reason to remand the claim for a new VA examination to address these possible new diagnoses and obtain updated VA treatment records. 4. Entitlement to service connection for a left foot condition is remanded. 5. The Veteran was afforded a VA examination for his claimed left foot disability in September 2014. The examiner found that the Veteran did not have a current left foot disability. Subsequent to the examination, the Veteran submitted a VA MRI report, noting degenerative changes of the foot. MRI report, December 2017. It is not clear which foot the report refers to, but the Board finds that it is sufficient reason to remand the claim for a new VA examination to address this possible new diagnosis and obtain updated VA treatment records. 6. Entitlement to service connection for a left eardrum condition is remanded. The Veteran was afforded a VA examination for his claimed left eardrum condition in September 2014. The examiner noted visible scarring of the left eardrum and symptoms of vertigo, staggering, and loss of balance. VA examination, September 2014. Despite these findings, he concluded that the Veteran did not have a diagnosable left eardrum condition and failed to provide a nexus opinion. In light of these apparent inconsistencies in the examination report, the Board finds that this claim must be remanded for a new VA examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). 7. Entitlement to an initial compensable rating for left elbow degenerative arthritis, status post ulna fracture, is remanded. The Veteran was most recently examined for his left elbow in September 2014. At that time, the examiner noted normal range of motion, including after repeat movement, and normal muscle strength. VA examination, September 2014. Subsequent to this examination, the Veteran reported a decrease in the range of motion and muscle strength of his left elbow. See NOD, July 2015. As these new symptoms suggest a possible increase in the severity of the Veteran’s service-connected left elbow disability, the claim must be remanded for a new VA examination. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 8. Entitlement to an initial compensable rating for GERD and duodenal ulcer is remanded. The Veteran was most recently examined for his GERD and duodenal ulcer in September 2014. At that time, the examiner noted no current symptoms. VA examination, September 2014. Subsequent to this examination, the Veteran reported daily regurgitation. See NOD, July 2015. As this new symptom suggests a possible increase in the severity of the Veteran’s service-connected GERD and duodenal ulcer, the claim must be remanded for a new VA examination. See Green, supra; Schafrath, supra. 9. Entitlement to an initial compensable rating for melanoma (facial spots/skin condition) is remanded. The Veteran was most recently examined for his melanoma in September 2014. At that time, the examiner noted a possible melanoma on the Veteran’s right temple and recommended that he seek treatment. VA examination, September 2014. Subsequent to this examination, the Veteran reported that he was receiving treatment for his melanoma. See NOD, July 2015. As this new treatment suggests a possible increase in the severity of the Veteran’s service-connected melanoma, the claim must be remanded for a new VA examination. See Green, supra; Schafrath, supra. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s outstanding VA treatment records for the period. The Board is particularly interested in any records relating to his December 2017 ankle MRI. 2. Ask the Veteran to complete a VA Form 21-4142 for his private primary care physician and any other providers or facilities relevant to his remanded claims. Make two requests for the authorized records from provider or facility that he returns a VA Form 21-4142 for, unless it is clear after the first request that a second request would be futile. 3. Thereafter, schedule the Veteran for examinations to determine the nature and etiology of his claimed right knee, left knee, right ankle, left foot, and left eardrum disabilities and the current severity of his left elbow disability, GERD, and melanoma. With regard to the right knee, left knee, right ankle, left foot, and left eardrum claims, the examiner must indicate whether the Veteran has a current diagnosis for each of his claimed disabilities. If the examiner does not provide a diagnosis, s/he should indicate whether the Veteran experiences functional impairment due to his symptoms. The examiner should then opine whether it is at least as likely as not that each of the claimed disabilities is related to an in-service injury, event, or disease. The examiner should address the noted in-service treatment for each of these claims. With regard to the left elbow, GERD, and melanoma claims, the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating each disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected disability alone and discuss the effect of this disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Moore, Counsel