Citation Nr: 18152024 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-62 757 DATE: November 20, 2018 ORDER Entitlement to service connection for bronchitis is denied. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for a left shoulder condition is remanded. Entitlement to service connection for a right foot condition is remanded. Entitlement to service connection for a left foot condition is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for a depression and anxiety is remanded. Entitlement to service connection for chest pains is remanded. Entitlement to service connection for blurred vision is remanded. Entitlement to service connection for dizziness is remanded. FINDING OF FACT The Veteran does not have a current respiratory disability. CONCLUSION OF LAW The criteria for service connection for bronchitis are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1994 to September 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The RO subsequently granted entitlement to service connection for a lumbosacral strain, right knee strain, and tinnitus in an October 2016 rating decision. The Veteran did not file a notice of disagreement with the assigned evaluations. As such, these issues are no longer subjects for current appellate review. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also 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) (2017). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 Bronchitis Entitlement to service connection for bronchitis must be denied. The Veteran received a VA examination in September 2016 and the examiner concluded that the Veteran did not have a diagnosis of a respiratory condition. The Veteran indicated that bronchitis began during basic training when he caught pneumonia and then later developed chronic bronchitis as a result. The examiner noted that a chest x-ray from August 2016 was negative, and concluded that there was no diagnosis of bronchitis because there was no pathology to render a diagnosis. The Board finds the September 2016 VA examination highly probative and concludes that there is no current disability; thus, the first element of the service connection claim has not been satisfied. Congress specifically limits entitlement for service connected disease or injury to cases where incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, in this case, without evidence of a current disability, direct service connection for bronchitis is not warranted. REASONS FOR REMAND 1. Left Knee The Veteran received a VA knee examination in September 2016 and was diagnosed with bilateral knee strain. The examiner did not, however, provided an opinion with regards to its etiology. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision.”). Therefore, this claim must be remanded for a new examination. 2. Bilateral Shoulders The Veteran received a VA shoulder examination in September 2016 and was diagnosed with bilateral shoulder strain. The examiner opined that it was not as least as likely as not that the strains were related to service, as there was no complaint of shoulder pain on his 1998 separation examination. The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is also inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, this claim must be remanded for a new examination. 3. Bilateral Foot At the outset, the Board notes that the Veteran’s bilateral pes planus was noted on his entrance examination. He was subsequently diagnosed with pes planus again at an August 2016 VA examination, in addition to bilateral 1st MTP bunions and bilateral foot enthesitis. The examiner opined that the conditions were less likely as not related to service, as there were no further mentions of foot pain and no complaints of foot pain on the discharge/separation examination. There was a foot sprain from 1995, but it was noted to have resolved that same year. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). “[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.” See Wagner v. Principi, 370 F.3d 1096 (Fed. Cir. 2004); see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such claims, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption. Horn v. Shinseki, 25 Vet. App. 234 (2012); 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To rebut that presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the condition was due to the natural progress of the disease. Horn, 25 Vet. App. at 235 n. 6; 38 U.S.C. § 1153. Here, the Veteran submitted his Substantive Appeal, VA Form 9, in December 2016 and indicated that he continued to have foot pain at discharge but, since he would not get treatment for the conditions so close to discharge, he did not make a complaint. The Board finds the August 2016 VA examination inadequate, as the examiner did not opine as to whether it was at least as likely as not that the Veteran’s moderate pes planus noted at entry worsened beyond the natural progression of the condition during service. Furthermore, the Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, this claim must be remanded for a new examination. 4. Headaches, Erectile Dysfunction, Depression, Chest Pains, Blurred Vision, Dizziness The Veteran was scheduled for VA examinations in December 2014 but did not report. The record indicates that the address used to send notice of the examinations was an incorrect address, as VA mail sent there was returned as undeliverable. On his Notice of Disagreement, the Veteran indicated that he was not notified of the examinations because his address had changed and he received the notifications late. However, he updated his address and wished to be scheduled for new examinations. Here, the Board finds that the Veteran has demonstrated good cause for not reporting for his examinations, and they should be scheduled on remand. 38 C.F.R. § 3.655(a). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his left knee strain. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s left knee strain had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left knee strain was caused or aggravated by his right knee strain. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. If the examiner finds that the Veteran’s left knee strain disability has been permanently aggravated/worsened by his service-connected condition, the degree of worsening should be identified. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral shoulder strain. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s bilateral shoulder strain had its onset in service or is otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral foot condition. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. For conditions not noted on entry: The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s bilateral foot condition had its onset in service or is otherwise the result of an incident in service. For pes planus: The examiner is asked to opine whether it was at least as likely as not that the Veteran’s moderate pes planus noted at the time of entry into service permanently worsened beyond its natural progression during active service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his headache condition. The examiner should review the claims folder and note such review in the VA examination report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s headache disorder had its onset or is otherwise related to the Veteran’s military service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his erectile dysfunction condition. The examiner should review the claims folder and note such review in the VA examination report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s erectile dysfunction condition had its onset or is otherwise related to the Veteran’s military service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of his depression. The examiner should review the claims folder and note such review in the VA examination report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s depression had its onset or is otherwise related to the Veteran’s military service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of any disability manifested by chest pains. The examiner should review the claims folder and note such review in the VA examination report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a disability manifested by chest pains had its onset or is otherwise related to the Veteran’s military service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 8. Schedule the Veteran for a VA examination to determine the nature and etiology of his blurred vision. The examiner should review the claims folder and note such review in the VA examination report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that an eye disorder manifested by blurred vision had its onset or is otherwise related to the Veteran’s military service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 9. Schedule the Veteran for a VA examination to determine the nature and etiology of any disability manifested by dizziness. The examiner should review the claims folder and note such review in the VA examination report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a disability manifested by dizziness had its onset or is otherwise related to the Veteran’s military service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel