Citation Nr: 18150801 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-13 119 DATE: November 15, 2018 ORDER 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 right knee disability is denied. Entitlement to service connection for a headache disability is denied. Entitlement to service connection for right upper extremity numbness is denied. Entitlement to service connection for insomnia is denied. Entitlement to service connection for a cervical spine disability is denied. REMANDED Entitlement to an evaluation in excess of 10 percent for lumbar degenerative spondylosis is remanded. Entitlement to an evaluation in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to an evaluation in excess of 10 percent for right lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. The credible evidence of record does not demonstrate that the Veteran currently has a left hip disability. 2. The credible evidence of record does not demonstrate that the Veteran currently has a right hip disability. 3. The credible evidence of record does not demonstrate that the Veteran currently has a right knee disability. 4. The credible evidence of record does not demonstrate that the Veteran currently has a headache disability. 5. The credible evidence of record does not demonstrate that the Veteran currently has right upper extremity numbness. 6. The credible evidence of record does not demonstrate that the Veteran currently has an insomnia disability. 7. The credible evidence of record does not demonstrate that the Veteran currently has a cervical spine disability. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria to establish entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for entitlement to service connection for a right knee disability have not been satisfied. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 4. The Veteran does not have a chronic headache disorder that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 5. Right upper extremity numbness was not incurred or aggravated by service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 6. The criteria for the establishment of service connection for insomnia have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 7. The criteria to establish entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to July 1990. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Service Connection To establish a right to compensation for a present disability, a Veteran 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a left hip disability is denied. 2. Entitlement to service connection for a right hip disability is denied. 3. Entitlement to service connection for a right knee disability is denied. 4. Entitlement to service connection for a headache disability is denied. 5. Entitlement to service connection for right upper extremity numbness is denied. 6. Entitlement to service connection for insomnia is denied. 7. Entitlement to service connection for a cervical spine disability is denied. The Board has reviewed the record of evidence comprehensively. Although the Board has an obligation to provide reasons and bases to support a decision, there is no requirement to discuss, in detail, all the evidence submitted by or on behalf of a Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and the most relevant evidence about what this evidence shows, or fails to show, about the issue on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not discussed explicitly. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The U.S. Court of Appeals for Veterans Claims (Court) has held that Congress 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, 225 (1992). The requirement of a current disability 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.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Notably, service treatment records (STRs) do not document any complaints, treatment, or diagnosis of any of the Veteran’s claimed conditions. The Veteran declined a separation physical examination, but review of STRs reflects treatment for low back pain due to injury, and associated bilateral lower extremity symptoms – which are service-connected and separately addressed herein. Significantly, however, the probative evidence of record does not document that the Veteran has a current diagnosis of headaches, insomnia, a left or right hip disability, a right knee disability, a cervical spine disability, or right upper extremity numbness. As such, service connection is not warranted on direct or presumptive bases for the claimed conditions. Brammer, 3 Vet. App. at 225. Review of the Veteran’s available medical records shows that the Veteran’s neck was evaluated as normal, and that he had no cervical adenopathy in December 2015. In the same evaluation, the Veteran’s review of symptoms was negative for headaches. It was also negative for weakness and joint swelling. Furthermore, the Veteran denied having nightmares, night sweats, depression, or any psychiatric symptoms. See VA medical records. Not a scintilla of medical evidence supportive of right upper extremity symptoms, bilateral hip symptoms, right knee symptoms, headaches, insomnia or cervical pain is found in the Veteran’s medical record. There is simply no record of complaint, treatment or diagnosis for any of the aforementioned claimed conditions at any point during the appeal period. Although the Veteran’s lay statements are competent insofar as they report observable symptoms, see Layno v. Brown, 6 Vet. App. 465, 469 (1994); to the extent that the Veteran asserts that his claimed conditions are related to active service or to a service-connected disability, such statements are of no probative value, as the Veteran lacks the medical expertise to diagnose complex conditions or to render nexus opinions, which relate such claimed conditions to active service or a service-connected disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, to the extent the Veteran asserts that he has such current conditions, such statements are inconsistent with post-service treatment records that do not document relevant diagnoses during the pendency of the appeal. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Board recognizes that pain can be considered a disability for VA purposes where there is evidence of functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1369 (Fed. Cir. 2018) (holding that pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability). However, despite the Veteran’s reports of pain, he does not contend that his bilateral hip, right knee, or cervical spine pain impairs his earning capacity or otherwise alters the normal working movements of his body. See Mitchell v. Shinseki, 25 Vet. App. 32, 38, 43 (2011) (stating that pain itself does not rise to the level of functional loss). Without a diagnosed hip, neck, or right knee disability, any in-service event or complaints related to his hips, neck, or right knee, competent evidence of a medical nexus, or evidence of pain causing functional impairment, the Veteran’s claims for service connection for a bilateral hip, neck, and right knee disability must be denied. As the Veteran does not have current disabilities concerning his claimed conditions during the pendency of the appeal, the preponderance of the evidence is against the claims of entitlement to service connection for a bilateral hip disability, a right upper extremity disability, a cervical spine disability, a right knee disability, headaches, and insomnia. There is no reasonable doubt to be resolved, and the claims must be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for lumbar degenerative spondylosis is remanded. 2. Entitlement to an evaluation in excess of 10 percent for left lower extremity radiculopathy is remanded. 3. Entitlement to an evaluation in excess of 10 percent for right lower extremity radiculopathy is remanded. The Veteran claims entitlement to a disability evaluation in excess of 10 percent for service-connected lumbar spondylosis, and ratings in excess of 10 percent for left and right lower extremity radiculopathy. The latest VA examination of record to assess the nature and severity of the Veteran’s lumbar spine disability was in April 2015. The Veteran’s diagnosis of degenerative spondylosis of the lumbar spine was confirmed. The Veteran reported flare-ups. Range of motion testing revealed restricted flexion and extension, as well as pain. The examiner noted that the Veteran’s flares could cause additional motion loss, but such could not be determined unless present during a flare up. Yet, the examiner also stated that the examination was being conducted during a flare-up. Some guarding was noted, but it was assessed not to result in abnormal gait or spinal contour. A sensory examination showed decreased sensation to light touch in the lower extremities. Testing also revealed symptoms due to radiculopathy in the bilateral lower extremities. Specifically, mild intermittent pain, paresthesias and/or dysesthesias, and numbness were noted. Since the April 2015 VA examination, the Veteran, through his representative, has averred that he has pain and numbness in both lower extremities, that he has reduced motion in his legs, and that the 2015 examination was inadequate. Specifically, it is argued that the examiner did not adequately address the Veteran’s flare-ups, and that he should be afforded an examination which adequately takes the DeLuca factors into account. Indeed, the Veteran’s representative contended that the VA examination is not reflective of the Veteran’s ordinary, everyday life, as it does not consider fatigue, pain and weakness caused by repetitive use and movement. See February 2016 Notice of Disagreement. The Board acknowledges the arguments set forth, and notes that while a sensory and radiculopathy evaluation were part of the 2015 VA examination, the Veteran was not afforded a peripheral nerves examination. The Board further agrees that the 2015 VA examination contains inconsistencies as to the evaluation of the Veteran’s flare-ups. Specifically, the examiner on the one hand states that the Veteran was being evaluated during a flare-up, yet also opines that flares could cause additional loss of motion – but this additional loss of motion cannot be determined unless an examiner is present to evaluate said additional loss. In addition, the medical evidence of record as well as the Veteran’s arguments before the Board are indicative of potential worsening of his lumbar spine disability and radiculopathy of the right and left lower extremities. Not only has the Veteran averred that his back pain and lower extremity numbness severely affect his daily life, he has also reported in VA treatment records that he has undergone physical therapy many times with a private medical provider, was administered injections, and was recommended by a private neurologist for spinal surgery. See VA medical records. The aforementioned private treatment records have not been associated with the record. As they are likely materially relevant to the Veteran’s claims, reasonable efforts must be made to obtain all outstanding private treatment records. Furthermore, as there is evidence suggestive of a material change in the severity of the Veteran’s low back disability with right and left lower extremity radiculopathy, the Veteran must be scheduled for a new VA examination to assess the current severity of his disabilities. Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). Finally, the Board notes that once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, said examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). As also relevant, a recent Court decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. A VA examiner should, on remand, address any flare-ups claimed by the Veteran, per Sharp. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records. Private physical therapy and orthopedic records should specifically be requested, after obtaining the necessary authorizations from the Veteran. 2. After the above development is accomplished, schedule the Veteran for a VA examination to assess the nature and severity of his low back disability. The electronic file must be made available to the examiner, and the examination report must reflect that such review occurred. All tests and studies deemed necessary must be performed. All pertinent symptomatology and findings should be reported in detail in accordance with VA rating criteria. Range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the spine must be conducted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The rationale for all opinions expressed must be provided. The examiner must also state whether the examination is taking place during a period of flare-up. If not, the examiner must ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his lumbar spine symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner must provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. 3. Schedule the Veteran for a VA examination to assess the nature and severity of his left and right lower extremity radiculopathy. The electronic file must be made available to the examiner, and the examination report must reflect that such review occurred. All tests and studies deemed necessary must be performed. All pertinent symptomatology and findings should be reported in detail in accordance with VA rating criteria. Specifically, the examiner must identify the affected nerve(s) and impairment level (e.g., mild, moderate, moderately severe, or severe) as to each. All findings must be reconciled with other conflicting medical evidence of record, if any. A detailed and complete explanation (rationale) is requested for all opinions provided. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel