Citation Nr: 18151376 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 18-01 520 DATE: November 20, 2018 ORDER Entitlement to service connection for a heart disability is denied. REMANDED Entitlement to service connection for a left hip disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for bilateral pes planus, to include as secondary to a service-connected disability, is remanded. Entitlement to a rating higher than 10 percent right knee instability is remanded. Entitlement to a rating higher than 10 percent for a left knee disability, status post meniscectomy with degenerative joint disease, is remanded. Entitlement to a rating higher than 10 percent for degenerative joint disease of the right knee with Baker's cyst and lateral collateral ligament tear, is remanded. FINDING OF FACT There is no competent evidence of record that shows the Veteran has a heart disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a heart disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1982 to April 1988. The Board notes that the Veteran has filed a notice of disagreement (NOD) at the RO concerning claims for service connection for alcohol use disorder, sinusitis and depressive disorder, as well as claims for increased ratings for the service-connected ankles and elbows, as shown in the electronic claims file. While the Board is cognizant of the Court’s decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the NOD and is presumably currently in the process of adjudicating the appeal. Action by the Board at this time may serve to actually delay the RO’s action on that appeal. As such, no action will be taken by the Board at this time, and the claims for service connection for alcohol use disorder, sinusitis and depressive disorder, as well as claims for increased ratings for the service-connected ankles and elbows, presently before the RO, will be the subject of a later Board decision, if ultimately necessary. Correspondence received in August 2017 indicated that the Veteran wished to revoke Douglas E. Sullivan as his representative of record. The Board will thus further address this case with the understanding that the Veteran is pro se (not represented in his appeal). 1. Entitlement to service connection for a heart disability Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including cardiovascular disease, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen’s disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was “noted” during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Walker at 1336; 38 C.F.R. § 3.303(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran contends that he currently suffers from a heart disability that had onset in service. The service treatment records show that in January 1988 he was seen for complaints of chest pain. Following examination of the heart, including an EKG, an assessment of chest wall strain was recorded. On separation from service in March 1988 the Veteran endorsed a history of chest pain or pressure, but his heart and vascular system were clinically evaluated as normal. The service treatment records contain no complaints, history or findings consistent with a heart disorder. On VA examination in August 2013, the Veteran reported a history of chest pain and shortness of breath since service in 1988. The examiner noted that while the Veteran’s heart was evaluated in service, all the cardiac studies conducted at that time revealed no abnormalities. The Veteran denied any subsequent treatment for his heart. Following a review of the claims file and an examination of the Veteran, which failed to disclose any heart disability, the examiner concluded that the Veteran did not have a heart condition. Review of the evidentiary record shows that there is no competent or probative evidence showing that the Veteran currently has a heart disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability,” and held that “[i]n the absence of proof of a present disability[,] there can be no valid claim.”); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes). To the extent the Veteran complains of chest pressure or pain, symptoms alone, the Board has considered whether the Veteran’s claimed symptoms are of such severity that these would be considered a “disability” as used in 38 U.S.C. 1110. Here, the best evidence in this case provides evidence against the existence of a current “disability” affecting the heart at this time. The Board has considered the Veteran’s reported history of symptomatology related to his chest throughout the appeal period. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through one’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, however, his statements do not rise to a level of competency to offer an opinion as to the existence of a current diagnosis or etiology to an undiagnosed illness. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Determining the etiology of the Veteran’s claimed heart disability, or its existence, requires medical inquiry into biological processes, pathology, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have training, expertise, or skills needed to make such a determination. As a result, the probative value of his lay assertions is low. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim, the doctrine is not for application. See 38 U.S.C. § 5107 (b); Gilbert, supra. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disability is remanded. 2. Entitlement to service connection for a right hip disability is remanded. 3. Entitlement to service connection for bilateral pes planus is remanded. The Veteran contends that he developed bilateral pes planus as due to service. Specifically, he claims that his bilateral pes planus, initially noted after 2010, was caused by wearing combat boots in service and injuries to the service-connected ankle disorders. A VA examiner in August 2013 diagnosed bilateral flat feet and opined that the that the condition was less likely than not caused or proximately due to or the result of the Veteran’s service connected bilateral knee disabilities because it had nothing to do with his knees. Concerning the claimed right and left hip disorders, the Veteran contends that the conditions were aggravated by weakening of his lower extremities due to the service-connected bilateral knee and ankle disabilities. On VA examination in August 2013, the examiner diagnosed degenerative joint disease of the hips and opined that the condition was less likely than not caused or proximately due to or the result of the Veteran’s service connected bilateral knee disabilities, rather his bilateral hip condition was caused by early arthritis which was secondary to the aging process and had nothing to do with his knees. The Board finds that the VA medical opinions of record incompletely address the Veteran’s theory of service connection on a secondary or direct basis. Thus, the Board finds that a remand is warranted to fulfill VA’s duty to assist by obtaining adequate medical opinions that clearly contemplate the Veteran’s claim that his bilateral pes planus was incurred in service, or in the alternative, that it is secondary to a service-connected disability, as well as his claim that the bilateral hip disorders were caused or aggravated by the service connected bilateral knee and ankle disorders. Once VA undertakes an effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 4. Entitlement to a rating higher than 10 percent right knee instability is remanded. 5. Entitlement to a rating higher than 10 percent for a left knee disability, status post meniscectomy with degenerative joint disease, is remanded. 6. Entitlement to a rating higher than 10 percent for degenerative joint disease of the right knee with Baker’s cyst and lateral collateral ligament tear, is remanded. The Veteran asserts that the symptoms of his service-connected right and left knee disabilities are more severe than presently evaluated. The Veteran’s right and left knees were most recently examined in August 2013. Evidence submitted since the Veteran was last examined suggests that the severity of the Veteran right and left knee disorders may have worsened and required left knee surgery in January 2018. VA’s duty to assist requires affording the Veteran a new VA examination in order to accurately assess the current level of impairment when there is evidence that the disability may have worsened. Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). The claim is thus remanded for an examination to assess the current severity of the Veteran’s service-connected left and right knee disabilities. Additionally, a review of the Veteran’s most recent VA examination findings from August 2013, do not meet the specifications of Correia v. McDonald, 28 Vet. App. 158, 168-169 (2016). In Correia, the Court found that 38 C.F.R. § 4.59 requires that VA joint examinations must, where possible, include range of motion results for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Id. at 165. Further, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that a new VA examination is required. Given this, further examination is thus necessary under 38 C.F.R. § 3.159 (c) (4). When adjudicating the claims, the AOJ should be mindful of the Court’s holdings in DeLuca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011) regarding painful motion. The matters are REMANDED for the following action: 1. The AOJ should ask the Veteran to identify all providers of evaluations or treatment he received for the remaining disabilities on appeal and to provide authorizations for VA to obtain such records. If any private records identified are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. If possible, the Veteran himself should submit such evidence. 2. Obtain all relevant outstanding VA treatment records. 3. Schedule the Veteran for a VA examination(s) to determine whether the Veteran’s bilateral pes planus and bilateral hip disabilities, are related to service or a service-connected disorder. The claims folder must be made available to the examiner(s) for review before the examination. All indicated tests should be done and all findings must be reported in detail. Following review of the claims file, the examiner(s) must address the following: a. Is it at least as likely as not (50 percent probability or higher) that any diagnosed right hip disorder, left hip disorder and/or bilateral pes planus, is the result of the Veteran’s service, to include wearing combat boots? b. Is it at least as likely as not (50 percent probability or higher) that any diagnosed any diagnosed right hip disorder, left hip disorder and/or bilateral pes planus, is caused or aggravated (made permanently worse beyond the natural progression of the disease) by a service-connected disability, to include his bilateral knee and bilateral ankle disabilities? If a right hip disorder, left hip disorder and/or bilateral pes planus, has been aggravated by a service connected disability, the examiner should attempt to quantify the degree of aggravation beyond the baseline level of disability. The examiner(s) should consider all evidence, including lay statements regarding onset and continuity of symptoms, and must provide a complete rationale for all opinions expressed. 4. Schedule the Veteran for a VA examination to assess the current severity of the service-connected right and left knee disabilities. The Veteran’s claims file should be made available to and reviewed by the examiner, and he or she must indicate whether such review was accomplished. a. The examiner should determine the range of motion of the Veteran’s right and left knees in degrees. Range of motion testing must include both passive and active motion, and in weight-bearing and nonweight-bearing conditions. It should be indicated whether and at what point during the Veteran’s range of motion the Veteran experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, or incoordination should be indicated. If the Veteran endorses flare-ups of symptoms the examiner must comment on the functional limitations of the right and left knees during flare-ups, and the effect of pain on range of motion. If there is no flare-up at the time of the examination, the examiner is asked to opine on further functional limitations based on the Veteran’s subjective complaints and history. b. The examiner should state whether there is right or left knee instability that is best characterized as moderate or severe. c. The examiner should assess the impact of the Veteran’s service connected right and left knee disabilities on his activities of daily living, including his occupational functioning. (Continued on the next page)   All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. Please note that an examiner’s report that she/ he cannot provide and opinion without resort to mere speculation is inadequate unless the examiner provides a rationale for that statement. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Azizi-Barcelo, Tatiana