Citation Nr: 18149890 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 13-04 611 DATE: November 14, 2018 ORDER Entitlement to service connection for a right wrist disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record does not show that the Veteran has a chronic, clinically diagnosed right wrist disability. 2. The preponderance of the evidence of record does not show that the Veteran has a chronic, clinically diagnosed right ankle disability. 3. The preponderance of the evidence is against finding that the Veteran has a low back disability which is due to a disease or injury in-service or which was manifested by arthritis to a compensable degree within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right wrist disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 2004 to June 2009. Included among his many decorations and awards are the Marine Corps Good Conduct Medal, Combat Action Ribbon (Iraq), and Sea Service Deployment Ribbon with 2 Stars. In October 2016, the Veteran appeared at a hearing held at the San Antonio, Texas Satellite Office before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In September 2017, the Board remanded the Veteran’s appeal for additional evidentiary development. It has since been returned to the Board for further consideration. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain chronic diseases, including arthritis, may be presumed if they are manifest to a compensable degree within one year following the date of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in-service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word “chronic.” Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in-service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the “chronic” diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a right wrist disability. Initially, the Board observes that the Veteran’s service records reveal treatment for right wrist tenonitis in January 2008 wherein he was prescribed Motrin. Service treatment reports also show that he was placed on quarters for swollen, stiff, or painful joints after a fall, but the joints were not identified. His separation examination included complaints of right wrist pain. The Board further observes that the Veteran has received ongoing VA treatment for multiple medical conditions. The Veteran was afforded a VA wrist examination in January 2013. The Veteran stated that he originally injured his wrist when bracing himself during an in-service fall. The examiner diagnosed the Veteran with right wrist strain. Diagnostic testing showed an impression of “no significant radiologic abnormality.” The examiner provided the following remarks: No evidence of treatment for [right wrist disability], post discharge (2009 to present), in available records reviewed by this Provider. The duties of the Veteran, while on active duty, cause this Provider to speculate that his [right wrist disability] may very well have occurred as a result of military service. However, a direct service connection cannot be given, with any probability, based on available records. Pursuant to the Board’s September 2017 remand, the Veteran underwent another VA wrist examination in November 2017. The Veteran again stated that he injured his right wrist after an in-service fall. Upon examination, the examiner determined that the Veteran does not have a current diagnosis of a right wrist disability. The examiner explained: Review of the Veteran service treatment record documents a onetime complaint of atraumatic right wrist pain. The Veteran was evaluated and diagnosed with non-specific tendonitis. He was treated for this condition with Motrin three times a day which resolved the problem without residual(s) or sequelae. There are no documentations for a chronic condition or diagnosis of a chronic right wrist condition; and there is no current right wrist condition. Since separating from the military on (06/30/2009) the Veteran has not sought medical attention for his [wrist]; and his current health record maintained at the Veterans Administration Medical Center is silent for a clinical encounter or intervention for a right wrist condition. The Board acknowledges several lay statements submitted in support of his claim. These statements, as well as his October 2016 testimony, essentially relate his joint pain to the fact that he often carried heavy loads during service, which caused substantial wear and tear on his joints. Importantly, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran is competent to report his symptoms of right wrist pain. However, an underlying disability related to the right wrist has never been identified during the current appeal period. There is no other competent medical evidence of record, VA or private, of a chronic right wrist disability during the applicable appeal period. While it appears that the Veteran did injure his wrist in January 2008, he was prescribed Motrin and the November 2017 VA examiner confirmed that this “resolved the problem without residual(s) or sequelae.” In essence, the evidence of a current diagnosis of a chronic right wrist disability is limited to statements from the Veteran, his peers, and his general complaints. The Board finds that diagnosing a disability related to the wrist requires medical expertise and knowledge because such a diagnosis involves clinical testing and evidence which is beyond the scope of observable symptoms. Thus, while the Veteran is competent to report his experience and symptoms in service and thereafter, his reports are not competent evidence of a diagnosis of chronic right wrist disability. 38 C.F.R. § 3.159(a)(1), (2). In light of the absence of any competent evidence of a chronic, clinically diagnosed right wrist disability, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. 2. Entitlement to service connection for a right ankle disability. Initially, the Board observes that the Veteran’s service records are silent as to any complaints of or treatment for a right ankle disability. It is again noted that service treatment reports also show that he was placed on quarters for swollen, stiff, or painful joints after a fall, but the joints were not identified. His separation examination included complaints of right ankle pain. The Board further observes that the Veteran has received ongoing VA treatment for several medical conditions. The Veteran received a VA ankle examination in January 2013. The Veteran reported that in March 2006, he twisted his right ankle during a hike. The examiner diagnosed the Veteran with right ankle sprain, dated 2010. Diagnostic testing included an impression of “mild degenerative changes of the anterior tibiotalar joint. No acute abnormality. Tiny Achilles enthesophyte.” The examiner provided the following remarks: No evidence of treatment for [right ankle disability] post discharge (2009 to present), in available records reviewed by this Provider. The duties of the Veteran, while on active duty, cause this Provider to speculate that his [right ankle disability] may very well have occurred as a result of military service. However, a direct service connection cannot be given, with any probability, based on available records. Pursuant to the Board’s September 2017 remand, the Veteran received another VA ankle examination in November 2017. The Veteran again stated he twisted his right ankle during a hike, but claimed that he did not present to sick call as he feared being eliminated from training. Upon examination, the examiner determined that the Veteran does not have a current diagnosis of a right ankle disability. The examiner concluded: Review of the Veteran’s service treatment record is silent for a diagnosis for a right ankle condition. There is no documentation of an injury and/or subsequent treatment for ankle pain and/or condition. Since separating from the military on (06/30/2009) the Veteran has not sought medical attention for his right ankle; and his current health record maintained at the Veterans Administration Medical Center is silent for a clinical encounter or intervention for a right ankle condition. The Board again acknowledges several lay statements submitted in support of his claim. These statements, as well as his October 2016 testimony, essentially relate his joint pain to the fact that he often carried heavy loads during service, which caused additional wear and tear on his joints. Given the above, it does not appear that the Veteran has a right ankle disability for VA rating purposes. The Veteran is competent to report his symptoms of ankle pain. However, an underlying condition related to a chronic right ankle disability has never been identified during the current appeal period. There is no other competent medical evidence of record, VA or private, of a chronic right ankle disability during the applicable appeal period. While it appears that the Veteran complained of ankle pain around the time of discharge from service, the November 2017 VA examiner confirmed that no clinical diagnosis has been rendered and no nexus to service has ever been suggested. Additionally, functional impairment has not been shown. Due to the absence of any competent evidence of a chronic, clinically diagnosed right ankle disability, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. 3. Entitlement to service connection for a low back disability. To begin, the Board observes that the Veteran’s service records are silent as to any complaints of or treatment for low back disability. It is again noted that service treatment reports also show that he was placed on quarters for swollen, stiff, or painful joints after a fall, but the joints were not identified. His separation examination included complaints of back pain. The Board further observes that the Veteran has received ongoing VA treatment for several medical conditions, including back pain. The Veteran underwent a VA back examination in January 2013. The Veteran complained that he often carried heavy loads during service, which caused low back pain. The examiner diagnosed the Veteran with back strain, dated 2010. Diagnostic testing included an impression of “5 nonrib-bearing lumbar type vertebral bodies. Normal lumbar lordosis. No compression fracture or listhesis. Mild intervertebral disc space narrowing at L5-S1. Minimal endplate degenerative changes at L4-L5. Facet joints and spinous processes are intact. SI joints are maintained. Surrounding soft tissues are unremarkable.” The examiner found that the Veteran’s low back strain is not related to or aggravated by service. The examiner provided the following remarks: No evidence of treatment for [low back disability] post discharge (2009 to present), in available records reviewed by this Provider. The duties of the Veteran, while on active duty, cause this Provider to speculate that his [low back disability] may very well have occurred as a result of military service. However, a direct service connection cannot be given, with any probability, based on available records. Pursuant to the Board’s September 2017 remand, the Veteran underwent a new VA back examination in November 2017. The Veteran stated that he developed low back pain secondary to carrying heavy loads. He also reported that in January 2017, he felt a pop in his lower back, wherein an injection was administered to minimize the pain. The examiner diagnosed the Veteran with degenerative arthritis of the spine, as well as lumbar spondylosis, dated January 2017. The examiner also noted that diagnostic testing was performed in February 2017. Impressions included “1. Disc protrusion at L4-L5 with annular fissure causing mild spinal canal stenosis without neutral narrowing. 2. Left-sided disc extrusion causing mild thecal sac narrowing on the left as well as contact and displacement of the descending left S1 nerve root. No associated neural foraminal narrowing.” The examiner determined that the Veteran’s low back disability is less likely than not attributable to service. The examiner provided the following rationale: Review of the Veteran service treatment record is silent for a diagnosis or complaint for a lower back condition. There is no documentation of an injury and/or subsequent treatment for lower back pain and/or condition. The Veteran’s initial presentation for a lower back condition was on (01/18/2013); when he presented for a Compensation & Pension examination. Again, the Board again notes several lay statements submitted in support of his claim. These statements, as well as his October 2016 testimony, essentially relate his joint pain to the fact that he often carried heavy loads during service, which caused increased wear and tear on his joints. After carefully considering the Veteran’s contentions and reviewing the evidence of record, the Board finds that the preponderance of the most probative evidence is against the claim of entitlement to service connection for a low back disability. While the Veteran clearly has a low back disability, the weight of the evidence is against finding that such disability is related to military service, or that arthritis manifested to a compensable degree within one year of separation from active duty. Here, the Board finds that the opinions of multiple VA examiners are highly probative because those opinions were based upon a review of the Veteran’s entire electronic claims file, as well as other pertinent medical records, and, in most cases, full examinations, to include both history and clinical findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Notably, the November 2017 VA examiner found no records concerning low back pain until the Veteran’s initial VA examination in early 2013. The Veteran is competent to describe events that occurred during military service and any symptomatology regarding his low back pain. However, as a lay person, he is not competent to provide a medical diagnosis or to determine the etiology of his current back disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the opinions of competent medical professional such as the VA examiners of record are entitled to greater probative weight, and are found by the Board to be far more probative than the Veteran’s lay assertions as to the etiology of his low back disability. There is also no evidence of a chronicity of symptomatology from the time of service to the present. While the Veteran complained of pain upon his separation from service, there is no indication that he had any clinically diagnosed back disability until approximately 2013. The Board also notes that there is no basis to grant service connection for a low back disability, including arthritis, on a presumptive basis, as there is no evidence that arthritis manifested to a compensable degree within one year of discharge from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The first x-ray evidence of any abnormality in the Veteran’s spine is from x-rays from his January 2013 VA examination. This is several years after separation from service, and thus this presumption is not applicable. For the above reasons, the Veteran’s claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to service connection for a right knee disability is remanded. Regarding the claim of entitlement to this issue, a review of the record reveals that a remand is necessary to ensure substantial compliance with the Board’s September 2017 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, it appears that the November 2017 VA examiner did not consider whether the Veteran’s right knee disability pre-existed the Veteran’s active military service. Instead, the VA examiner only rendered an opinion as to direct service connection. Here, the Veteran’s service treatment records reveal that he suffered a right knee injury playing football prior to service. As discussed in the Board’s remand, it is unclear whether the Veteran’s right knee disability undebatably existed prior to his enlistment. In cases where a condition is properly found to have pre-existed service, the Board, in considering the pertinent statutory and regulatory framework governing the presumption of aggravation, must determine: (1) whether there was a worsening of the disorder during service; and (2) if so, whether there was clear and unmistakable evidence that the increase in severity was due to the natural progress of the disease. See Crowe v. Brown, 7 Vet. App. 238, 245-46 (1994). 38 C.F.R. § 3.306 (2017). Thus, remand is required to obtain an addendum opinion as it pertains to this issue. 1. The Regional Office (RO) should arrange for an addendum opinion authored by an appropriate specialist in order to determine the nature and etiology of the Veteran’s claimed right knee disability. The examiner is to be provided access to the Veteran’s electronic claims file and must specify in the report that these records have been reviewed. All pertinent symptomatology and findings should be reported in detail, including all diagnoses. The examiner should provide the following opinions: (a) Does the Veteran have a right knee disability that clearly and unmistakably (i.e., undebatably) existed prior to his enlistment in-service? (b) If so, is there clear and unmistakable evidence that the pre-existing right knee disability was not aggravated (i.e., is it undebatable that the disability did not undergo a permanent increase in severity) during the Veteran’s period of active service? If the Veteran’s pre-existing right knee disability did undergo a permanent increase in severity, was that permanent increase in severity during service clearly and unmistakably due to the natural progress of the condition? (c) For any right knee disability that did not pre-exist his active service, the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the right knee disability had its onset during, or is otherwise etiologically related to, the Veteran’s active service. In providing the requested opinions, the examiner should refer to the pertinent evidence of record, including the Veteran’s documented in-service treatment for joint pain (not specified) after a fall as well the lay statements in support of his claims. The examiner must provide a complete rationale for any opinions expressed, based on the examiner’s clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner should also reconcile all prior reports, as necessary. If an additional examination is required for the examiner to sufficiently address the above questions, then a new examination should be afforded. 2. After the development requested has been completed, the Agency of Original Jurisdiction (AOJ) should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Miller, Associate Counsel