Citation Nr: 18156773 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 15-37 037 DATE: December 11, 2018 ORDER Service connection for a left ankle disability is denied. Service connection for a left foot disability is denied. REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for PTSD, to include anxiety and paranoia, is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran has a left ankle disability that is related to service. 2. The weight of the evidence is against a finding that the Veteran has a left foot disability that is related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection for a left foot disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from December 2006 to April 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The record in this case contains no evidence indicative of a current disability or persistent or recurrent symptoms of disability regarding either the left ankle or left foot. Additionally, there is no evidence indicative of an in-service event or injury. Therefore, the Board is not obligated to provide a VA examination in this case for either the left ankle or left foot disability claims based on the requirements established in McLendon. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 11101 (2012); 38 C.F.R. § 3.303 (2017). In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). 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; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Left Ankle and Left Foot Conditions. The Veteran filed claims for service connection for a left ankle condition and a left foot condition in September 2011. A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to ... filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In this case, the record is void of any evidence of a current disability related to either the left foot or the left ankle. The Veteran’s medical records do not indicate current diagnoses at the time of filing the claim or recent diagnoses prior to filing the claim. Additionally, the Veteran has not provided any evidence regarding the current disabilities or symptoms related to the claimed disabilities. Therefore, the Board finds that a claim for service connection for a left foot disability and a left ankle disability is not possible based on the lack of current diagnoses. The Board also notes the Court of Appeals for the Federal Circuit recently found that pain alone can constitute a "disability" under § 1110, because pain can cause functional impairment. Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018). However, even considering Saunders, the Veteran still does not have present disabilities for his left ankle or left foot as there is no medical evidence of record indicating the presence of pain and functional loss. The Veteran has also not provided any testimony concerning pain related to either the left ankle or left foot. However, even assuming that there are current diagnoses, the Board has reviewed the record in consideration of both claims and finds that the record is void of any evidence of an in-service injury or event for either claim. The Veteran’s service treatment records and personnel records lack any reports of treatment related to the left ankle or left foot. The service records also contain no complaints of pain or issues related to the left ankle or left foot. The Veteran was provided a Separation Exam in April 2007. The separation exam contains no reports of pain or issues related to either the left ankle or the left foot. The Veteran’s claim documents also lack any indication of an in-service event or injury that would help to substantiate a claim for service connection. The Veteran’s application for service connection only lists several conditions but provides no explanation or theory of entitlement that would help to illustrate the potential in-service event or injury that is necessary to establish a claim for service connection. Therefore, the Board finds that the record fails to establish an in-service event or injury that satisfies the requirements for service connection for either the left ankle condition or the left foot condition. In arriving at the decision to deny the claims, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for PTSD, to include anxiety and paranoia. The rating decision denied service connection for migraine headaches and PTSD based on the lack of current diagnoses and connections between current symptomatology to in-service treatment or events. The Veteran’s service treatment records (STRs) contain indications of migraines and psychiatric conditions while in service. Therefore, the Board finds that VA examinations would be helpful in evaluating the remaining two required elements for the Veteran’s service connection claims. The Veteran missed a scheduled VA examination in June 2013. However, the Veteran requested to reschedule his exams in his NOD. Additionally, the Veteran reported in his VA Form 9 and Statement in Support of Claim that he had recently moved and requested that his examinations be rescheduled. In 2017, the examinations were arranged for rescheduling however, the Veteran failed to RSVP during the appropriate time frame causing the rescheduling attempt to be canceled. The Veteran submitted evidence of an incarceration around the time of the examination scheduling request. Although the Veteran has missed examinations previously, the change in circumstances, change in residence and incarceration, reported to the Board provide some cause for prior missed examinations. As such, the claim for service connection for migraine headaches and PTSD are remanded for further development. The matters are REMANDED for the following actions: 1. Obtain any outstanding treatment records not already associated with the claims file. 2. After associating any records, arrange for the Veteran’s record to be forwarded for an appropriate medical provider for an in-person examination related to migraine headaches. Review of the claims file should be noted in the examiner’s report. The examiner should explain the reasons for any opinion offered. The examiner must consider lay reports from the Veteran along with pertinent medical evidence, including medical literature submitted by him. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. The examiner should address the following: Identify any current diagnosis related to migraines and/or headaches since the Veteran filed for such in August 2013. Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a “current” diagnosis. For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed. If a migraine and/or headache condition is diagnosed, is it at least as likely as not (50 percent or greater probability) incurred in or caused by service? 3. After associating any records with the claims file, arrange for the Veteran's record to be forwarded for an appropriate medical provider for an in-person examination related to PTSD, to include anxiety and paranoia. Review of the claims file should be noted in the examiner’s report. The examiner should explain the reasons for any opinion offered. The examiner must consider lay reports from the Veteran along with pertinent medical evidence, including medical literature submitted by him. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. The examiner should address the following: Identify all acquired psychiatric disorders that are currently present. Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a “current” diagnosis. The examiner should clearly explain how the diagnostic criteria have or have not been met under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. If PTSD is diagnosed, is it at least as likely as not (50 percent or greater probability) that PTSD manifested during or is otherwise related to the claimed in-service stressors and/or fear of hostile military or terrorist activity? For any diagnosed psychiatric disorder other than PTSD, is it at least as likely as not (50 percent or greater probability) that the disorder manifested during or is otherwise related to the Veteran’s period of active service? Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Watkins, Law Clerk