Citation Nr: 18156725 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 08-36 941A DATE: December 11, 2018 ORDER Entitlement to service connection for fibromyalgia is denied. Entitlement to service connection for a left leg disability is denied. Entitlement to service connection for hyperlipidemia, also claims as an endocrine condition, to include as secondary to stress associated with an acquired psychiatric disorder, is denied. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for sinusitis is remanded. FINDINGS OF FACT 1. The Veteran's fibromyalgia did not manifest during active duty service; did not have onset, in line of duty, during a period of active duty for training; and is not related to active military service. 2. The Veteran has not had a left leg disability at any point during the appeal period. 3. Hyperlipidemia alone does not constitute a disability for which VA compensation benefits may be awarded; there is no indication of any currently manifested clinical disability etiologically related to hyperlipidemia. CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia have not been met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. The criteria for service connection for a left leg disability have not been met. 38 U.S.C. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 3. The criteria for service connection for hyperlipidemia, claimed as an endocrine condition, have not been met. 38 U.S.C. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty, and had active duty for training (ACDUTRA), in the Army National Guard from July 1978 to December 1978, July 1986 to January 1987, August 1990 to September 1990, May 1999 to June 1999, and May 2000. She also had multiple periods of inactive duty training (INACDUTRA) during the time period from December 1982 to June 2002, as a member of the Army National Guard. This matter comes before the Board of Veterans Appeals (hereinafter Board) on appeal from rating decisions by the Indianapolis, Indiana, Regional Office (RO). By a rating action in September 2007, the RO denied the claim for hyperlipidemia. The Veteran perfected a timely appeal to that decision. In an October 2011 decision, the Board denied service connection for hyperlipidemia. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) which, in August 2012, granted a Joint Motion for Remand (JMR) vacating the October 2011 decision and remanded the issue of service connection for hyperlipidemia to the Board for compliance with the JMR. This appeal also stems from an April 2014 rating action issued by the Indianapolis RO. By that rating action, the RO denied service connection for a left foot disorder, service connection for a right foot disorder, service connection for a left knee disorder, service connection for a left leg disorder, service connection for sinusitis, and service connection for fibromyalgia. The Veteran perfected a timely appeal to that decision. In June 2017, the Board remanded the Veteran's claim and requested that the Agency of Original Jurisdiction (AOJ) schedule her for a videoconference hearing. On August 23, 2017, the Veteran appeared at the RO and offered testimony at a hearing before the Veterans Law Judge, sitting in Washington, D.C. A transcript of the hearing is of record. The Board notes that the Veteran filed a claim of service connection for a sinus condition. As the record demonstrates diagnoses of sinusitis and rhinitis, the Board has broadened and recharacterized the issue as entitlement to service connection for a sinus condition. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (finding that what constitutes a claim is not limited by a lay veteran's assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). Active service includes active duty; any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (IDT) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty; or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6. Military personnel records indicate that the Veteran was discharged from the Army National Guard in June 2004. Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). This presumption only applies to periods of active duty and not to the Veteran’s ACDUTRA or IDT because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. With regard to a claimant whose claim is based solely on a period of ACDUTRA or IDT, however, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The dispositive matter in these claims is whether the Veteran has 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 if the disability existed at the time a claim of filing of VA disability compensation or during the pendency of that claim, even if the disability resolved prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A diagnosis dated prior to the filing of a claim is relevant evidence in determining whether a current disability existed at the time the claim was filed or while the claim was pending, and it may support the existence of a current disability at the time of claim filing if it was close enough in time under the circumstances of the case. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). However, the mere presence of medical evidence of diagnosis does not establish a valid diagnosis or current disability, as the Board must weigh the available evidence. The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for fibromyalgia The Veteran essentially contends that she developed fibromyalgia as a result of the harassment she suffered during service. At her personal hearing, the Veteran maintained that the stress from the harassment caused her chronic pain. After careful review of the evidentiary record, the Board finds that the preponderance of the evidence is against the claim for fibromyalgia. Significantly, post-service medical records document complaints of joint pain and show treatment for, diffuse joint and muscle pain (fibromyalgia). VA progress notes dated in April 2012, May 2012, August 2016 and October 2016, reflect diagnoses of fibromyalgia. There is, however, no record of any complaint, diagnosis, or treatment for fibromyalgia (or muscle/joint pain), during a period of active duty service. Moreover, while National Guard records include the reports of contemporaneous civilian medical records that relate complaints of and show treatment for diffuse joint and muscle pain (diagnosed as fibromyalgia), there is no military record that any of these claimed diseases first onset in line of duty during a period of active duty for training. See 38 C.F.R. § 3.6. To the extent that the Veteran's statements are offered as a nexus opinion to service, that is, an association between her current fibromyalgia, and her service, the record does not support that she has the background in medicine to offer a competent nexus opinion on this complex question. The Board makes this determination while taking into consideration her assignments during ACDUTRA. Her description of her duties in a role of medical assistant, wiping down planes for contaminants, and her training – a one weekend a month and two week apparently full time training program – shows that in this role she did not have the training or experience necessary to provide a medical opinion on such a complex medical question. The Board therefore finds that the Veteran's opinion as to an association between her current complaints and her service is beyond the Veteran's capacity and is of no probative weight. In sum, the evidence shows that the Veteran has fibromyalgia, but this disease was not manifest during a period of active duty service and did not onset, in line of duty, during a period of active duty for training. There is also no probative evidence of record that links her fibromyalgia to service. Thus, the criteria for service connection for fibromyalgia, are not met and the benefit-of-the-doubt doctrine does not apply. 2. Entitlement to service connection for a left leg disability The Veteran maintains that service connection is warranted for a left leg condition that had its onset in service. In this regard, the Board notes that the STRs during the period of active duty for training with the National Guard are completely silent with respect to any complaints or clinical findings of a left leg condition. Post service treatment records, including VA as well as private treatment reports, do not reflect any complaints or clinical findings of a left leg disorder. The treatment reports are also completely negative for any clinical findings of a left leg condition. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). While the Veteran's own lay statements may in some instances be sufficient to establish a current diagnosis, in this case the Veteran has not reported any diagnosis of a left leg condition; VA and private treatment reports only report osteoarthritis of the left knee, which is addressed separately below. In view of the foregoing, the Board must conclude that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a left leg disorder. As the Board finds that the requirement of a current disability has not been met, the Board need not address the other elements of service connection. See, e.g., Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The preponderance of the evidence is against the claim; thus the benefit-of-the-doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for hyperlipidemia, also claimed as an endocrine condition, to include as secondary to the psychiatric disorder The Veteran claims service connection for hyperlipidemia. VA treatment records show treatment for hyperlipidemia. The Board notes, however, that hyperlipidemia is a laboratory finding and not a disability in and of itself for which VA compensation benefits are payable. They are, therefore, not appropriate entities for the rating schedule. The term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Allen v. Brown, 7 Vet. App. 439 (1995). Thus, in this case, while elevated cholesterol (hyperlipidemia) may be a risk factor for disability, it is not itself a disability for VA purposes. Nothing in the medical evidence reflects the Veteran has a current disability manifested by hyperlipidemia, nor are there symptoms, manifestations, or any deficits in bodily functioning associated with this laboratory finding. With respect to the Veteran’s claim that her hyperlipidemia developed as a result of stress from her service-connected psychiatric disorder, following a VA examination in June 2016, the examiner opined that hyperlipidemia is less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner explained that while the Veteran does have a diagnosis of hyperlipidemia, there is no medical literature found that supports hyperlipidemia occurring secondary to PTSD, nor aggravated by the condition of PTSD. The examiner stated that it is therefore less likely as not that the Veteran's hyperlipidemia was proximately due to or the result of acquired psychiatric disorder to include PTSD. The examiner added that it is less likely than not that the hyperlipidemia developed or was aggravated as a result of stress associated with an acquired psychiatric disorder, to include PTSD. The Veteran has presented no competent medical evidence to the contrary. Because he does not have a current disability for which service connection may be granted, the preponderance of the evidence is against the claim for service connection for hyperlipidemia, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Entitlement to service connection for a left knee disorder is remanded. The Veteran maintains that she developed a left knee disorder as a result of an incident that occurred during military training. The Veteran reported injuring the left knee while performing the 91 Bravo Course and running down the stairs during active duty training; she recalled hearing the knee pop and subsequently developed pain and swelling. VA as well as private treatment reports show that the Veteran has received ongoing clinical attention for osteoarthritis of the knees. A VA progress note, dated in May 2010, reflects and assessment of left knee medial tibial osteophyte, medial compartment, narrowing. During an orthopedic consultation in May 2012, it was noted that the Veteran appeared to have medial degenerative joint disease of the knee. Also submitted in support of the Veteran’s claim are several medical statements from Dr. Debra Miller. In a statement dated in July 2011, Dr. Miller stated that the Veteran sustained various physical injuries to her knees during active duty and drill training ‘Weekends.’ In McLendon v Nicholson 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in service event, injury or disease’ or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board finds that a VA examination is warranted for the Veteran's left knee disorder due to evidence of current left knee disorder and her testimony indicating an onset during her period of ACDUTRA. Additionally, in a July 2012 VA progress note, the examiner noted that the Veteran was referred for treatment of left knee pain since 1999 when jumping out of a moving vehicle. The assessment was left knee pain. The Board therefore finds sufficient evidence to warrant an examination so as to determine the nature and etiology of the Veteran's current left knee disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a left and right foot disorder is remanded. The Veteran maintains that she injured her feet during the same training which caused damage to her left knee. The Veteran also reported an incident which occurred when she jumped out of a vehicle, which caused injury to her feet. In a statement in support of claim, dated in September 2013, the Veteran reported that from 1982 to 2001 she served weekend drills active/inactive duty training and as a full-time military technician position; during those periods, she indicated that she wore men’s boots year-round. The Veteran related that, after wearing those boots, most mornings she experienced a stabbing pain in her feet; she still feels this pain today. The Veteran indicates that she still has bruising redness warmth and puffiness around her heels and she gets calluses that are thick and cause discomfort and stiffness. The records reflect that the Veteran is currently diagnosed with various foot disorder. Significantly, a June 2010 VA progress note reflects a diagnosis of hallux valgus. In November 2012, the Veteran was diagnosed with hallux valgus and bunions, right foot. In a statement dated in February 2012, Dr. Yong S. Chae stated that the Veteran has been diagnosed with plantar fasciitis heel spurs and hallux valgus. Dr. Chae noted that the Veteran’s bilateral foot condition most likely can be attributed to standing and activities in boots/shoes that are not supportive during active and inactive duty. Given the Veteran's testimony or recurrent symptoms and Dr. Chae suggestion of a relationship between the Veteran’s bilateral foot condition and service, the Board therefore finds sufficient evidence to warrant an examination so as to determine the nature and etiology of the Veteran's current bilateral foot disorders. See McLendon, 20 Vet. App. at 79. 3. Entitlement to service connection for sinusitis The Veteran essentially contends that she suffers from sinusitis which developed as a result of her duties during service. During her personal hearing, the Veteran reported that she was first treated for sinusitis in the 1980’s. She reported that, as part of her duties during the weekend drills, she worked close to aircrafts, therefore inhaling the fumes. She indicated that she worked in the bay areas where the vehicles were brought in; thus, she was exposed to environmental contaminants and hazards. The Veteran also maintained that her sinusitis is related to her respiratory condition, which developed as a result of exposure to fumes and other hazards. The record indicates that, during the period from 1982 to 2002, the Veteran held the following positions: Military Personnel Technician Management Assistant Supply, Analyst Maintenance Technician Industrial Hygienist, Medical Specialist and Equal Opportunity Advisor. The treatment reports from the Veteran’s period of National Guard service reflect that she was seen in October 1978 with complaints of cold symptoms, including nasal and chest congestion. During an examination in February 1995, the Veteran also reported a history of hay fever. In a statement dated in March 1995, Dr. Debra Carter noted that the Veteran had been prescribed Triavil to help her stop smoking due to her chronic bronchitis and sinusitis. Post service treatment records, including VA as well as private treatment reports reflect diagnoses of acute sinusitis and rhinitis. In December 2013, the Veteran was seen an emergency room with complaints of eye redness, blurring and headaches; he stated that he had been using sinus medications which have not helped. The assessment was acute sinusitis. A more recent VA treatment note, dated in October 2016, reported active problems including allergic rhinitis. In a statement dated in July 2011, Dr. Miller noted that, while on active duty during training weekends, the Veteran inspected maintenance shops, various buildings, firing ranges, testing planes to make sure that they were decontaminated for various museums, and all these activities affected her respiratory condition. Given the Veteran's testimony and some indication of post-service treatment for a sinus disorder, an examination is warranted to determine the etiology of the claimed condition and clarify the nature and extent of the Veteran's disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant medical treatment records since March 2017, to include any private treatment records and VA treatment records, and associate the records with the claims file. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any left knee disorder that may be present. The claims folder should be made available to the examiner for review before the examination. The examiner is requested to review all pertinent records associated with the claims file, including the service treatment records, the post-service medical records, and lay assertions, including the August 2017 hearing transcript. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has a left knee disorder that had its onset during, or is otherwise related to, service, including a period of ACDUTRA or INACDUTRA and, if so, explain what injury caused the disorder. A complete rationale should be provided for any opinion rendered. 3. The Veteran should also be afforded a VA examination in connection with the bilateral foot disorder claim. The claims folder should be made available to the examiner for review before the examination. The examiner is requested to review all pertinent records associated with the claims file, including the service treatment records, the post-service medical records, and lay assertions, including the August 2017 hearing transcript. For each disorder, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder that had its onset during, or is otherwise related to, service, including a period of ACDUTRA or INACDUTRA, and, if so, explain what injury caused the disorder. A complete rationale should be provided for any opinion rendered. 4. The Veteran should also be afforded a VA examination in connection with the claim for sinusitis. The examiner should first identify whether the Veteran has a present sinus disorder. The claims folder should be made available to the examiner for review before the examination. The examiner is requested to review all pertinent records associated with the claims file, including the service treatment records, the post-service medical records, and lay assertions, including the August 2017 hearing transcript. The examiner should then provide an opinion as to whether it is at least as likely as not that the Veteran has a sinus disorder that had its onset during, or is otherwise related to, service, including a period of ACDUTRA or INACDUTRA, and, if so, identify the injury that caused such disorder. A complete rationale should be provided for any opinion rendered. (Continued on the next page)   5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims must be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted in full, the AOJ must issue a supplemental statement of the case (SSOC), allow an appropriate opportunity to respond, and then return the appeal to the Board, if otherwise in order. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs