Citation Nr: 18149435 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 18-09 679 DATE: November 9, 2018 ORDER Entitlement to service connection for a right hip condition is denied. Entitlement to service connection for a right knee condition is denied. Entitlement to service connection for acid reflux is denied. Entitlement to service connection for a low back condition is denied. REMANDED Entitlement to a compensable rating for a skin condition, claimed as dyshidrotic eczema, is remanded. FINDINGS OF FACT 1. The Veteran has no current diagnosis of a right hip condition. 2. The Veteran has no current diagnosis of a right knee condition. 3. The Veteran’s currently diagnosed acid reflux is not related to his active service. 4. The Veteran has no current diagnosis of a low back condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hip condition have not been met. 38 U.S.C. § 1110, 1117, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 2. The criteria for entitlement to service connection for a right knee condition have not been met. 38 U.S.C. § 1110, 1117, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 3. The criteria for entitlement to service connection for acid reflux have not been met. 38 U.S.C. §§ 1110, 1117, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.317. 4. The criteria for entitlement to service connection for a low back condition have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from January 2002 to January 2007. He served in Kuwait and Iraq from September 2002 to June 2003. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of "qualifying chronic disability," a chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or any diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 U.S.C. § 1117. An "undiagnosed illness" is one that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii). A "qualifying chronic disability" is defined, in part, as an undiagnosed illness. 38 C.F.R. § 3.317 (a)(2)(i)(A). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A § 1117 (d) warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a)(2)(i). For purposes of this section, the term medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). For purposes of this section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). 1. Entitlement to service connection for a right hip condition The Veteran asserts that his right hip condition is related to his service. As a preliminary matter, the Board concludes that the Veteran does not have a current diagnosis of a right hip condition and has not had one at any time during the pendency 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). While the Veteran’s service treatment records reflect that he suffered a right hip strain in September 2006, the Board finds that post-service treatment records are silent for any complaints of, treatment of, or diagnosis of a right hip condition. The Board acknowledges the Veteran’s assertions and belief that he has a right hip condition, however, he is not competent to provide a diagnosis in this case. The issue is medically complex and requires specialized medical education and knowledge of the interaction between multiple systems in the body, as well as the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, to the extent the Veteran is competent to report hip pain, the Board acknowledges the holding in the United States Court of Appeals for the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which indicates that pain can constitute a “disability” under 38 U.S.C. § 1110. However, as the medical evidence does not reflect a current diagnosis of a right hip condition, service connection is not warranted. Likewise, the evidence does not show, and the Veteran has never alleged, that he has an undiagnosed illness manifested by hip pain. In light of the above discussion, the Board concludes that the preponderance of the evidence is against his claim of service connection for a right hip condition and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 2. Entitlement to service connection for a right knee condition The Veteran asserts that his right knee condition is a result of his service. Initially, the Board notes that a threshold requirement in all service connection claims is that there is a current disability. The Board finds that the record does not show that the Veteran has a current disability with regards to his right knee. A review of the Veteran’s service treatment records reveals a complaint of right knee pain during an examination dated November 2003. The Veteran reported that he awoke one morning and his right knee started hurting. During a pre-deployment examination in October 2005, the Veteran reported that his health was very good. The Veteran’s post service treatment records do not reflect complaints of a knee condition until a July 2017 examination, where the Veteran reported chronic pain in his knees. However, no diagnosis was made. Based on the foregoing evidence, the Board must deny the Veteran’s claim for service connection for a right knee condition. Even if the Board accepts that the Veteran has right knee symptoms, symptoms alone without a diagnosed or identifiable underlying malady or condition do not constitute a disability. The VA needs to identify a disability, not symptoms of a disability. Therefore, even if the Board accepted the Veteran’s statements asserting a link between his disability and military service, the evidence still does not demonstrate the first element required for service connection-a current disability. See 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim.”). Likewise, the evidence does not show, and the Veteran has not alleged, that he has an undiagnosed illness manifested by knee pain. Therefore, the Board finds that service connection for a right knee condition is not warranted. 3. Entitlement to service connection for acid reflux The Veteran asserts that his acid reflux is associated with his service in Southwest Asia. The Veteran’s service treatment records were silent for complaints of, treatment for, or a diagnosis of acid reflux. A review of the Veteran’s post service treatment records does not reflect treatment for acid reflux or any other gastrointestinal condition. In fact, the first indication of symptoms and a diagnosis of acid reflux was not until the Veteran’s March 2017 VA examination. While the Veteran reported changes in his bowel habits since 2005, he reported the onset of symptoms due to acid reflux as occurring approximately two years prior to his examination. The Board notes that the Veteran’s diagnosis was not until approximately 10 years after he left active service. Therefore, continuity is not established based on the clinical evidence. As part of this claim, the Board recognizes the statements regarding the Veteran’s history of symptoms. In this regard, while the Veteran is not competent diagnose a disorder such as acid reflux, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is “medical in nature,” he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is insufficient to warrant service connection on the Veteran’s statements alone. The Veteran reported that his acid reflux is a result of his service in Southwest Asia. In this case, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of acid reflux after separation from service as he was not diagnosed with acid reflux until 10 years later. Next, service connection may also be granted when the evidence establishes a medical nexus between his claimed condition and either his active duty or his service-connected disability. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed condition to active duty or a service-connected disability, despite his contentions to the contrary. As noted above, the Veteran was afforded a VA examination in March 2017 where he reported that his onset of acid reflux occurred approximately two years ago. The VA examiner opined that it was less likely than not that the diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. In support of his opinion, the examiner stated that no documentation is found regarding evaluation or treatment for these symptoms and the Veteran reported his onset of acid reflux symptoms approximately two years ago. Additionally, the examiner stated that acid reflux or GERD has not been associated with service in Southwest Asia. Therefore, after reviewing all the evidence contained in the claims file, the Board finds that service connection for acid reflux must be denied. 4. Entitlement to service connection for a low back condition The Veteran is claiming entitlement to service connection for a low back condition. After a thorough review of the evidentiary record, the Board concludes that the Veteran is not entitled to service connection for a low back condition. In reaching this conclusion, the Board finds the weight of the credible and competent evidence of record does not support a diagnosis for a low back condition. Specifically, the Veteran’s service treatment records are silent for any complaints of, treatment for, or a diagnosis of a low back condition. Additionally, while the Veteran’s post treatment records show a complaint of back pain during an examination dated July 2017, the Board notes that no diagnosis was made. As noted above, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328 (1997). The current disability requirement is satisfied when a claimant “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 current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Likewise, the evidence does not show, and the Veteran has not alleged, that he has an undiagnosed illness manifested by back pain. As there is no current diagnosis of a low back condition, the Board finds that service connection is not warranted and the appeal is denied. REASONS FOR REMAND 1. Entitlement to a compensable rating for a skin condition, claimed as dyshidrotic eczema is remanded. The Board observes that the Veteran was last afforded a VA examination for his service-connected dyshidrotic eczema of the bilateral hands in December 2016. In his February 2018 Form 9, the Veteran stated that his skin condition has spread to more areas of his body. The Veteran seeks an increased rating for his service connected skin condition. In light of this new evidence suggesting a worsening of the Veteran’s skin condition, the Board finds that a new VA examination is necessary to ascertain the current severity of the Veteran’s dyshidrotic eczema. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matter is REMANDED for the following action: Schedule the Veteran for a skin examination to determine the symptoms and manifestations associated with his eczema, any resulting impairment, and the severity thereof. The claims file is to be made available to the examiner to review. The examiner should conduct all necessary tests and (1) identify the symptoms and manifestations associated with the Veteran’s eczema, (2) note the severity of those symptoms and manifestations, and (3) identify any resulting occupational or other functional impairment. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Vample, Associate Counsel