Citation Nr: 18155415 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-26 448 DATE: December 4, 2018 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for radiculopathy of the left upper extremity is denied. Entitlement to service connection for radiculopathy of the right upper extremity is denied. Entitlement to service connection for radiculopathy of the left lower extremity is denied. Entitlement to service connection for radiculopathy of the right lower extremity is denied. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for hemorrhoids is remanded. FINDINGS OF FACT 1. The evidence of record does not establish a current diagnosis of a right knee disability throughout the appeals period. 2. The evidence of record does not establish a current diagnosis of radiculopathy of the left upper extremity throughout the appeals period. 3. The evidence of record does not establish a current diagnosis of radiculopathy of the right upper extremity throughout the appeals period. 4. The evidence of record does not establish a current diagnosis of radiculopathy of the left lower extremity throughout the appeals period. 5. The evidence of record does not establish a current diagnosis of radiculopathy of the right lower extremity throughout the appeals period. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for service connection for radiculopathy of the left upper extremity have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The criteria for service connection for radiculopathy of the right upper extremity have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 4. The criteria for service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 5. The criteria for service connection for radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army Reserve, to include active duty service from July 2008 to December 2008 and from August 2010 to September 2011. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. 1. Service connection for a right knee disability The Veteran contends that her claimed right knee disability is due to her period of service. 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. After review of the record, the Board finds that the Veteran does not have a current diagnosis of a right knee disability 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 Veteran submitted application for service connection for her right knee in May 2015. The lay evidence of record does not indicate symptoms of right knee complications, and the medical record throughout the appeals period does not contain a diagnosis of a right knee condition since the filing of the claim. The Board recognizes the Veteran’s assertion in her June 2016 VA Form 9 statement that her disabilities were reported in her service treatment records. The Board notes that the Veteran’s service treatment records indicate that the Veteran’s right knee was examined in August 2011, a month prior to her active duty separation. The examiner noted normal motion, no pain elicited on motion, and no loss of muscle strength. While the examiner noted tender patellar tendon on palpation of the left knee, the examiner did not note any abnormality of the right knee. Therefore, while the Board acknowledges examination of the right knee during the Veteran’s service, the service treatment record does not indicate a specific right knee disability. Moreover, as there is no evidence of a right knee disability since the time of the filing of the claim, service connection for a right knee disability is not warranted. While the Veteran believes she has a current diagnosis of a right knee disability, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Finally, in reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the evidence weighs against a finding of service connection, this doctrine is not applicable. 2. Service connection for radiculopathy of the left upper extremity 3. Service connection for radiculopathy of the right upper extremity 4. Service connection for radiculopathy of the left lower extremity 5. Service connection for radiculopathy of the right lower extremity The Veteran contends that her claimed radiculopathy of the bilateral upper and lower extremities is due to her period of active duty service. 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. After review of the record, the Board finds that the Veteran does not have a current diagnosis of radiculopathy of the bilateral upper or lower extremities, 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 Board notes that the Veteran’s medical records indicate that she has reported upper extremity pain during the appeals period. Specifically, a June 2016 VA record indicates that the Veteran reported numbness and tingling in both arms; however, the same record indicates that there was no evidence of cervical or lumbar radiculopathy. Rather, the examiner attributed the Veteran’s musculoskeletal pain to her fibromyalgia. Likewise, in a February 2018 VA record, the Veteran reported throbbing, numbness and radiating pain in the upper extremities, but the Veteran’s symptoms were not attributed to radiculopathy. (The Board notes an April 2018 rating decision indicates that the Veteran’s claim for service connection for bilateral fibromyalgia is still pending before the RO). For these reasons, the Board finds that the first element of service connection has not been met, and therefore, service connection is not warranted. While the Veteran believes she has a current diagnosis of radiculopathy of the upper and lower bilateral extremities, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Finally, in reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the evidence weighs against a finding of service connection, this doctrine is not applicable. REASONS FOR REMAND 1. Service connection for a cervical spine disability is remanded. The Veteran contends that her cervical spine disability is due to her period of service. In January 2015, the Veteran was afforded a VA examination. The examiner determined that it was less likely than not that the Veteran’s cervical spine disability was due to her period of active duty service. The examiner explained that the Veteran’s military medical records revealed in-service event of neck pain related to a motor vehicle accident. The examiner noted that the Veteran was evaluated and found not to have a cervical spine abnormality. The examiner further explained that the Veteran has had normal x-rays of the cervical spine. The examiner stated that there were no residual conditions of the spine during the post-service period related to the acute event of the cervical sprain in military service. The Board notes that the January 2015 VA opinion references the February 2012 private medical record findings of no evidence of residual conditions; however, the November 2012 and May 2013 post-service private medical records note displacement of cervical intervertebral disc displacement which the examiner did not address. As such, a remand is necessary. 2. Service connection for a left knee disability is remanded. The Veteran contends that her left knee disability is due to her period of active duty service. The evidence of record indicates that the Veteran injured her left knee several days prior to her August 2010 period of service, which was a year and a half after her first period of active duty service. The Board finds the August 2010 hospital record following the incident to be clear and unmistakable evidence that this injury was prior to active duty service. The Board notes that an August 2011 service treatment record indicates left knee pain reaggravation. As a medical opinion has not been sought to determine whether this documented reaggravation resulted in a permanent increase in severity of the Veteran’s injury, a remand is necessary. 3. Service connection for hemorrhoids is remanded. The Veteran contends that her hemorrhoids are due to her period of active duty service. The Veteran’s service treatment records indicate that the Veteran was diagnosed with hemorrhoids in September 2008, during her first period of active duty service. The Veteran’s September 2011 service treatment record also indicates that this is a chronic condition. It is not clear that this condition would require intermittent examination by a physician, such that it would be documented for current treatment in the Veteran’s record. As such, a remand is required to determine whether this condition, which has been listed as chronic, was active at any point during the appeals period. The matters are REMANDED for the following action: 1. Send the Veteran’s claims file to an appropriate examiner(s). The examiner(s) shall consider all other medical records associated with this file during review. Schedule the Veteran for examination only if the examiner(s) determines that the examination of the Veteran is necessary. The examiner(s) is asked to offer an opinion on the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spine disability was caused by or is otherwise etiologically related to her period of active duty service. The examiner is asked to discuss the Veteran’s post-service records, to include February 2012, November 2012, and May 2013 private medical records, in formulating this opinion b. Whether there is clear and unmistakable evidence that the Veteran’s preexisting left knee disability was aggravated beyond natural progression during her period of active duty service. The examiner is asked to discuss the August 2011 service treatment record in the formulation of this opinion. c. Whether the Veteran’s hemorrhoids are an ongoing disability that was caused by or is otherwise etiologically related to her period of active duty service. The examiner is asked to discuss the Veteran’s September 2008 and September 2011 service treatment records in formulating this opinion. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ford, Associate Counsel