Citation Nr: 18151278 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 10-36 653 DATE: November 19, 2018 ORDER Entitlement to service connection for a bilateral foot condition is denied. Entitlement to service connection for an unspecified joint condition is denied. REMANDED Whether new and material evidence has been received to support reopening the claim for a bilateral knee condition is remanded. Entitlement to service connection for a back 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 bilateral foot condition. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, an unspecified joint condition that is not accounted for by his other claims on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot 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 an unspecified joint condition 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 from October 1970 to May 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision. In April 2014, the Board remanded this appeal to schedule a hearing before a member of the Board. This hearing was scheduled for July 2014; however, the Veteran did not appear. In a November 2014 remand, the Board deemed the hearing request withdrawn under 38 C.F.R. §§ 20.702(d), 20.704(d) and directed the Agency of Original Jurisdiction (AOJ) to obtain outstanding treatment records and VA examination opinions. Duty to Assist VA has a duty to assist claimants in substantiating claims for VA benefits. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. This duty includes assisting with the procurement of pertinent treatment records. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered regarding the claims decided herein with one exception. The Veteran has stated that he obtained treatment from the San Francisco VA Medical Center between 1972 and 1984, but records of this treatment are not in the record. The Board previously remanded to obtain these records, but after multiple requests by the AOJ, the VA Medical Center in San Francisco determined no records could be found; therefore, further efforts to obtain these records would be futile. Thus, there has been substantial compliance with the Board’s prior remand directives related to these records. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a 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); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Bilateral Foot Condition The Veteran submitted a claim for entitlement to service connection for a bilateral foot condition in March 2009. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a bilateral foot condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 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). The medical evidence of record provides no indication of current treatment for any foot condition during the period on appeal. VA has contacted the Veteran asking him to identify any such treatments, but these requests have gone unanswered. Service treatment records contain no complaints or diagnoses of any bilateral foot condition in service. Post-service medical records, which document treatment the Veteran received at VA facilities from 1987 to 2014, show no signs of a chronic bilateral foot condition that would suggest continuation or recurrence during the period on appeal. The Veteran has likewise provided no competent lay evidence of a bilateral foot condition after service or any evidence of a nexus between such and his active service. For these reasons, the Board finds that the preponderance of the evidence is against finding the Veteran has, or had at any time during the appeal period, a current bilateral foot condition. Therefore, the benefit-of-the-doubt doctrine does not apply, and service connection for a bilateral foot condition is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Unspecified Joint Condition The Veteran also submitted his claim for entitlement to service connection for an unspecified joint condition in March 2009. The Board concludes that the Veteran does not have a current joint condition that cannot be accounted for by his other pending claims and has not had one at any time during the pendency of the claim or recent to the filing 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). The record contains no treatment records from the period on appeal to support the finding of a current joint condition. As previously stated, VA has contacted the Veteran asking him to identify any such record, but these requests have gone unanswered. Complaints of joint pain in the Veteran’s service records are limited to complaints of knee and back pain that are the subject of claims being remanded for further development. No other joint conditions are indicated. Post-service medical records likewise contain no indications of a joint condition aside from those described in other claims currently pending appeal. The Veteran has likewise provided no competent lay evidence of such a current joint condition. To the contrary, the Veteran submitted a statement in November 2009 indicating that the claim for an “unspecified joint condition” was intended as a claim for a knee disability, though the regional office adjudicated both as separate issues. For these reasons, the Board finds that the preponderance of the evidence is against finding the Veteran has, or had at any point during the appeal period, a current unspecified joint condition. Therefore, the benefit-of-the-doubt doctrine does not apply, and service connection is not warranted. See Gilbert, 1 Vet. App. 49. REASONS FOR REMAND In the November 2014 remand, the Board instructed the AOJ to afford the Veteran VA examinations for his spine and knees. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In October 2017, a Compensation and Pension note reflects that the examinations were cancelled because the AOJ was “unable to contact” the Veteran. No further explanation was provided, and there is no documentation in the record of any specific attempts to contact the Veteran. In light of the lack of documentation regarding the scheduling of the examinations in this case, the Board finds VA is obligated to attempt to reschedule the examinations in compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In doing so, all attempts to contact the Veteran and inform him of the scheduled examinations should be documented in the record. Notably, the Veterans of Foreign Wars (VFW) represents the Veteran. If the Veteran cannot be reached, the VFW should be contacted to assist with contacting the Veteran. The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain all outstanding VA and private treatment records pertinent to the Veteran’s claims and associate them with the record. 2. Then, attempt again to schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any spine disability. After a review of the claims file and an examination, the examiner must opine whether any diagnosed disability of the spine is at least as likely as not (50 percent or greater probability) related to his period of active service. The Veteran should be informed of his scheduled examination by all available avenues, including by telephone and/or letter. If the AOJ is unable to contact the veteran directly, the veteran’s representative, VFW, should be contacted. The AOJ is asked to document and include in the record all efforts taken to accomplish the scheduling of this examination. 3. After completing directive (1), attempt again to schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any knee disability. After a review of the claims file and an examination, the examiner must opine whether any diagnosed disability of the knees is at least as likely as not (50 percent or greater probability) related to his period of active service. The examiner should consider the Veteran’s pre-service diagnosis of rheumatic fever in 1969, as well as his chondromalacia diagnoses during service in December 1970 and February 1971. If the examiner instead finds the Veteran’s bilateral knee condition clearly and unmistakably preexisted the Veteran’s service, the examiner is asked to explain whether this finding is undebatable, and point to the evidence supporting the opinion. If any knee disability is clearly and unmistakably pre-existing, the examiner is then asked to opine on whether it is also undebatable that the knees were not aggravated by service (that is, permanently increased in severity beyond the normal progression of the disease). (Continued on the next page)   The Veteran should be informed of his scheduled examination by all available avenues, including by telephone and/or letter. If the AOJ is unable to contact the veteran directly, the veteran’s representative, VFW, should be contacted. The AOJ is asked to document and include in the record all efforts taken to accomplish the scheduling of this examination. Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Pitman, Associate Counsel