Citation Nr: 18158770 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-50 781 DATE: December 17, 2018 ORDER Service connection for a bilateral hand disability is denied. REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for headache disability is remanded. Entitlement to service connection for a low back disability is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of either right or left hand disability. CONCLUSION OF LAW The criteria for service connection for a bilateral hand disability are not met. 38U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1995 to August 2000. These matters come to the Board of Veterans Appeals (Board) from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). 1. Entitlement to service connection for a bilateral hand condition. The Veteran seeks service connection for a bilateral hand condition. He appears to content that service connection is warranted because he had right hand treatment in service and because he has bilateral hand treatment after service. The Board concludes that the preponderance of the evidence is against the claim for service connection for bilateral hand disability. A chronic disability of neither hand is shown in service and he has not had disability of either hand at any time during the pendency of the appeal. 38 C.F.R. § 3.303; McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service treatment records reflect no complaints, findings, or treatment for a chronic disability of either hand. Although a right-hand 3rd digit abrasion, avulsion, was shown in February 1999 during service, STRs reflect no subsequent complaints or abnormal pathology involving either the right or left hand. STRs do not include a service separation examination; however, a soldier medical readiness form (Readiness Report) completed in May 1999 reflects that the Veteran had a high level of medical fitness based on his profile showing a numeric designation of 1’s, which reflects fitness as to physical capacity/stamina, upper body, lower body, hearing, eyes, stability/psychiatric. The numeric designation of 1 in all categories also means that the servicemember is fully qualified and requires no medical waiver. Notably, this readiness report makes no mention of a right or left-hand injury or disability. The record reflects that the Veteran has made a few isolated reports of hand symptoms to post-service medical providers. See October 2015 Doctor’s Medical Note (referencing complaints of poison ivy on the hands); see also May 2012 Doctor’s Medical Note (complaint of left hand pain). A March 2014 VA examination report reflect no diagnosis for any current disability of either hand. Although in-service diagnosis for right hand 3rd digit abrasion, avulsion, was noted, the examiner found no residual disability associated therewith. The available medical evidence shows no indication of any chronic disorder or symptoms associated with either hand in service; it further shows no indication of any current disability related to in-service injury or disease. The Board accepts that the Veteran is competent to report bilateral hand symptoms, such as pain. However, he is not competent to diagnose himself with arthritis or any other condition requiring medical expertise and not susceptible to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His statements in this regard have no probative value. The Board has considered whether the Veteran’s report of pain constitutes a “disability” for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018) (pain alone can constitute a “disability” under 38 U.S.C. § 1110 because pain can cause functional impairment). However, the Board concludes that the Veteran does not have a present disability of either hand as he has not presented evidence of any functional loss or impairment due to hand symptoms including pain or numbness. The record shows retained use of the digits of his hands and the Veteran has not described any specific functional loss or impairment due to pain or numbness in regard to performing occupational tasks. While the Veteran complained of numbness of the right 3rd digit during flare-ups on March 2014 VA examination, the examiner noted that she could not opine as to additional loss of range of motion during a flare-up without resorting to mere speculation. In support thereof, the examiner observed that the numbness, as reported by the Veteran, would “not significantly limit functional ability during flare ups or repetitive use over time.” In addition, the examiner noted that the Veteran’s medical record does not show chronic, or progressive complaints, to include numbness or pain, of a right-hand condition. In other words, the Board finds that there is limited evidence outside the March 2014 examination to suggest that the Veteran has a right-hand disability. In sum, because the examiner opined that the Veteran’s range of motion would not be reduced during a flare-up, even in contemplation of numbness on his right 3rd digit, the Board finds the opinion probative of the absence of a current disability. It is noted that a January 2008 VA treatment record reflects that the Veteran planned to go to barber school started in a week, which suggests that he had no impairment of either hand that would interfere with using barber tools, such as, combs and scissors. He noted he was driving a truck but had his license suspected due to driving under the influence (DUI). Thus, neither the lay nor the medical evidence demonstrates the presence of “disability.” In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See McClain v. Nicholson, 21 Vet. App. 318, 321 (2007) (The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). The Board has considered the Veteran’s complaint that the March 2014 VA examination addressed only his right hand and that there was reasonable doubt concerning his claim. However, the examination report appears to be full and complete. It reflects range of motion measurements of all right-hand fingers; repetitive-use testing; strength testing –grip; and other findings along with consideration of the Veteran’s claims file and medical history. The fact that the examiner did not provide the Veteran with favorable findings or conclusions does not render the examination inadequate. Also, the Board finds that VA was not required to provide the Veteran with a left hand VA examination as there no indication that he has disability related to an in-service injury, disease or event. McClendon v. Nicholson, 20 Vet App. 79 (2006) (a VA medical examination is required when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim). As to “reasonable doubt,” the Board notes that this is a legal concept applicable in VA law. It is applicable when the evidence is in relative equipoise. The Veteran has not presented persuasive evidence of a current disability of either hand. He has not presented a favorable medical opinion in this matter to weigh. Therefore, the benefit-of-the-doubt doctrine does not apply in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. On balance, the weight of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of either right or left hand disability. Accordingly, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral pes planus is remanded. The Veteran asserts that his bilateral pes planus, which was annotated as moderate, asymptomatic, on his entrance examination, was aggravated by his active service. A condition will be presumed to have been aggravated by active service where there is an increase in disability during service unless clear and unmistakable evidence shows that the increase in disability is due to the natural progression of the condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. A temporary flare-up or recurrence of symptoms during service of a preservice condition does not establish an increase in disability as required for a finding of service aggravation. Rather, aggravation requires an increase in the level of the underlying condition. See Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991). As a preliminary matter, the Board notes that the Veteran’s bilateral pes planus was noted on his entrance examination. As such, the presumption on soundness on service entry is not for application. The question for the Board is whether pes planus shown on service entry was aggravation by his active service. 38 C.F.R. § 3.306. A March VA examination reflects that the Veteran’s bilateral pes planus is “less likely than not [related to] service complaints.” The examiner, however, did not provide a medical opinion on whether the Veteran’s bilateral pes planus was aggravated during active service. Hence, the examination report is incomplete. Therefore, to ensure that VA has met its duty to assist, remand is necessary. 2. Entitlement to service connection for headaches is remanded. The Veteran states that he was diagnosed with cephalgia in service and had three separate episodes of intense headaches, one occurring in-service and two occurring post-service. STRs dated in April 1998 reflect a diagnosis for cephalgia with possible diagnoses of presyncope or vasovagal episode. The Veteran also reports that he was hospitalized in 2004 and 2007 for the subsequent intense headache episodes. Available treatment records, in-service and post-service, indicate treatment for headaches without a diagnosis. The Veteran reported that he sought treatment at a non-VA medical center for headaches in 2004 and 2007. These records have not been obtained. Therefore, to ensure that VA has met its duty to assist, remand is necessary. 3. Entitlement to service connection for a low back disability is remanded. STRs reflect that, in February 2000, the Veteran was diagnosed with low back pain. However, subsequently dated records reflect no complaints, findings, or treatment for abnormal back pathology. Many years later, after service separation, a July 2008 VA pension examination reflects complaint of low back complaints with objective findings for limitation of motion. A January 2011 VA x-ray for low back pain showed spina bifida of L6 but no other findings; the impression was no significant abnormality. An April 2013 VA treatment records shows complaints of chronic low back pain for many years. He denied injury. He reported treatment by a chiropractor many years ago. The assessment was low back pain. A March 2014 VA examination report reflects that the Veteran was diagnosed with lumbar back pain in service in 2000. The examiner opined that the current condition was not related to service because in-service back pain resolved until later post service exacerbation. The Board finds that the March 2014 VA medical opinion is inadequate as it is not supported by a complete rationale. There is no explanation for the conclusion that the back pain resolved in service; also, the use of the term “exacerbation” suggests that it was a continuation of a prior problem. Additionally, the record reflects that the Veteran obtained chiropractic treatment for his back problems. However, these records are not associated with the claims file. Therefore, to ensure that VA has met its duty to assist remand is necessary. Accordingly, the above matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from June 2016 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for any non-VA medical providers that treated his feet, headaches, and low back. Make two requests for the authorized records from any sources identified, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his currently diagnosed bilateral pes planus. The examiner must opine on whether it was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. 4. If necessary additional pertinent treatment records are obtained, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his headaches. The clinician should provide an opinion as to the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran has or had during this appeal a chronic headache disability that had its onset in service or is otherwise etiologically related to active service (i.e. disease, injury, or event). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including findings for low back pain in service. If arthritis is shown, indicate whether it at least as likely as not (1) began during active service, (2) manifested within one after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. With regard to spina bifida, indicate whether it constitutes a congenital disease, a congenital defect, or an acquired disease or injury. If the reviewing clinician determines that any low back disability is a congenital disease, opine whether the disability clearly and unmistakably existed prior to his active service and clearly and unmistakably underwent no permanent increase in severity as a result of active service. 5. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Griffey, Associate Counsel