Citation Nr: 18159818 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-21 398 DATE: December 20, 2018 ORDER Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for a bilateral hip disorder is denied. Entitlement to service connection for bilateral carpal tunnel is denied. Entitlement to a 10 percent rating for service-connected left heel injury is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an initial rating higher than 20 percent for lumbar strain with spondylosis is remanded. FINDINGS OF FACT 1. The Veteran does not have a current left shoulder disability; he has not demonstrated any functional impairment as a result of his left shoulder pain. 2. The Veteran’s right shoulder disorder did not manifest in service or within one year of service; and is not otherwise related to service. 3. The Veteran’s bilateral hip disorder did not manifest in service or within one year of service; and is not otherwise related to service. 4. The Veteran’s bilateral carpal tunnel did not manifest in service; and is not otherwise related to service. 5. Throughout the appeal period, the Veteran’s left heel injury disability manifested by, at worst, intermittent pain. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left shoulder disorder have not been met. 38 U.S.C. 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right shoulder disorder have not been met. 38 U.S.C. 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a bilateral hip disorder have not been met. 38 U.S.C. 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for bilateral carpal tunnel have not been met. 38 U.S.C. 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. 3.102, 3.303, 3.307, 3.309. 5. The criteria for entitlement to an initial compensable rating for a left heel injury have not been met. 38 U.S.C. 1155, 5107; 38 C.F.R. 4.1, 4.2, 4.7, 4.10, 4.20, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1988 to March 1990. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. 1110, 1131 (2012); 38 C.F.R. 3.303(a) (2018). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. 1101, 1112, 1113, 1131, 1137; 38 C.F.R. 3.307, 3.309. Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. 1112, 1113 (2012); 38 C.F.R. 3.307(a)(3), 3.309(a) (2018). Under 38 C.F.R. 3.303(b), an alternative method of establishing in-service incurrence of a disease or injury and a causal relationship between a present disability and the in-service disease or injury is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a left shoulder disorder A threshold requirement for service connection is whether there is a current disability. Regarding the Veteran’s left shoulder, after reviewing all the evidence of record, the Board finds that a current disability has not been demonstrated, and therefore, service connection is not warranted. The voluminous amount of VA treatment records of record do not document a current left shoulder disorder. Instead, they state that the Veteran has pain in his left shoulder which began in 1998, approximately eight years post-service. At no point during the appeal period has the Veteran demonstrated anything more than pain; to include functional loss. The Federal Circuit Court recently held in Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018), where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. The Court specifically stated, however, “we do not hold that a Veteran could demonstrate service connection simply by asserting subjective pain.” Because no functional impairment has been demonstrated, the Board finds that the Veteran does not have a current disability of his left shoulder related to an in-service injury. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. 1110, 1131, see also 38 C.F.R. 3.303, 3.304. Thus, where, as here, no disability (to include pain causing functional loss) is shown, there can be no valid claim for service connection. In the absence of a diagnosis, the other elements of service connection need not be discussed, and service connection must be denied. 2. Entitlement to service connection for a right shoulder disorder 3. Entitlement to service connection for a left hip disorder 4. Entitlement to service connection for a right hip disorder 5. Entitlement to service connection for bilateral carpal tunnel syndrome Regarding the Veteran’s right shoulder, however, there is no dispute that he has a current disability. Private treatment records dated in May 2017 show that the Veteran has degenerative changes of the a.c. joint and a rotator cuff tear of the right shoulder. As to the Veteran’s bilateral hips, the Board notes that VA treatment records establish diagnoses of bilateral arthropathic changes of the hips. Further, they show that the Veteran has a diagnosis of bilateral carpal tunnel syndrome. Therefore, the first element of service connection has been met with respect to these issues. After a review of all the lay and medical evidence of record, however, the Board finds that the weight of the evidence demonstrates that there was no in-service injury, disease, or event involving the Veteran’s right shoulder, bilateral hips, or his wrists. The Veteran’s service treatment records appear complete and they do not show any complaints, treatment, or diagnoses related to the Veteran’s right shoulder, bilateral hips, or bilateral wrists. In addition, the Veteran himself has not asserted or identified any in-service injury which he believes could have caused these disabilities. Instead, on his notice of disagreement, the only reason the Veteran provided for not agreeing with the previous denials for his claims for his right shoulder and hips was that “I was a Combat Engineer in Germany.” He did not provide any reason for not agreeing with the denial of his claim for bilateral carpal tunnel syndrome. The weight of the evidence, instead, demonstrates that the Veteran’s disabilities were manifested several years after service separation and are not causally or etiologically related to service. The VA treatment records establish that the Veteran had an onset of hip and right shoulder pain that precipitated without any trauma or fall. See May 2016 VA Treatment Records. There no documentation regarding the onset of the Veteran’s bilateral carpal tunnel. The Board’s reliance on these multiple factors, only one of which is an absence of complaints or treatment during service, is consistent with the statutory and regulatory requirements to consider all evidence of record, as well as the Court’s precedential decisions. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). It is also worth noting that the Board recognizes that the Veteran was not afforded VA examinations in connection with these claimed disabilities. In order to receive a VA examination there must be: competent evidence of a current disability or persistent or recurrent symptoms of a disability; 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; 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 there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the second prong in McLendon is not satisfied as there has not been even as much as an allegation on behalf of the Veteran of an in-service injury or event related to the hips, right shoulder, or his wrists. Based on the above, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for a right shoulder, bilateral hip, and bilateral carpal tunnel disabilities, and as such, they must be denied. 6. Entitlement to an initial compensable rating for a left heel injury Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson, 12 Vet. App. 119, 126-27. Left Heel Disability The Veteran contends that his left heel disability warrants a higher rating. His disability is currently rated as non-compensable under Diagnostic Code 5284. Diagnostic Code (DC) 5284 provides for a 10 percent rating for a moderate condition, 20 percent for moderately severe, and 30 percent for a severe condition. 38 C.F.R. § 4.71a. After review of the record, the Board finds that a 10 percent rating is warranted for the entire appeal period for the Veteran’s left heel disability. In this regard, the private treatment records from March 2012 show that the Veteran had degenerative changes in the tibiotalar joint which were specifically noted to be mild. The left calcaneus was normal and there was no plantar spur or enthesopathy at the Achilles tendon insertion. There was a tiny well-corticated ossific fragment adjacent to the tibial plafond anteriorly which was “likely a sequela from old trauma.” On VA examination in December 2016, the Veteran reported intermittent pain in the heel. He did not have any flare-ups that impacted the foot, and he denied having any functional loss or impairment of the foot. He stated that prolonged walking and standing exacerbated his condition. The examiner indicated the severity was mild. Essentially, the only symptom related to the Veteran’s left heel injury is intermittent pain. Section 4.59 shows the rating schedule’s intent to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. 4.59. In Southall-Norman v. McDonald, 28 Vet. App. 346 (2016), the Court found that this regulation applies to disabilities regardless of whether its applicable diagnostic code is predicated on range of motion measurements. Here, because the Veteran has been consistent in his reports of heel pain which is exacerbated by prolonged walking and standing, the Board finds that a compensable rating is warranted consistent with Southall-Norman, supra, and section 4.59. A higher rating is not warranted because intermittent foot pain does not more nearly approximate a moderately severe foot disability. There Veteran has not demonstrated any other symptoms to warrant a higher rating; nor has he demonstrated any other impairments of the foot such that consideration under any other diagnostic code related to the foot would be warranted.   REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include major recurrent depression. The Veteran’s service connection claim for an acquired psychiatric disorder includes any current psychiatric disorder that is encompassed by his reported symptomatology. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). At the time of VA examination in February 2016, the Veteran had been diagnosed with alcohol abuse disorder. He did have any other diagnoses. However, the Veteran has since submitted additional private treatment records showing that he has a diagnosis of major recurrent depression, severe with psychotic traits, and generalized anxiety disorder. These diagnoses can also be found in the VA treatment records now associated with the claims file. As such, remand is required for an addendum opinion addressing these diagnoses. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was afforded a VA examination for his hearing loss in February 2016. The examiner opined that the Veteran’s hearing loss was less likely than not related to service. As rationale, he stated “audio exams during active duty indicated bilateral normal hearing even after being exposed to hazardous noise known to result in hearing loss.” This opinion is insufficient to allow the Board to determine whether the Veteran is entitled to service connection for hearing loss. The Court has held that 38 C.F.R. § 3.385, “does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service.” Hensley v. Brown, 5 Vet. App. 155, 159 (1993). On remand, an addendum medical opinion must be obtained that contains a complete rationale.   3. Entitlement to an initial rating higher than 20 percent for lumbar strain with spondylosis is remanded. Although the record contains a contemporaneous VA examination from February 2016 regarding the Veteran’s lumbar spine disaiblity, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) or Corria v. McDonald, 28 Vet. App. 158 (2016). The examiner stated that an opinion regarding flare-ups could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. In addition, the examination report does not contain passive range of motion measurements/pain on weight-bearing testing. The matters are REMANDED for the following action: 1. Request an addendum from the February 2016 VA examiner, or another qualified clinician, addressing the diagnoses of major recurrent depression and generalized anxiety disorder. If major recurrent depression or generalized anxiety disorder is not found currently, the examiner must state whether the prior diagnoses were made in error or whether they are now in remission. If the record supports a diagnosis of major recurrent depression or generalized anxiety disorder at any point during the appeal period, the examiner must provide an opinion addressing whether the disorder is at least as likely as not (50 percent probability or greater) the result of active service, even if the disorder is now in remission. 2. Request an addendum opinion from the February 2016 VA examiner, or another qualified clinician, for the Veteran’s bilateral hearing loss. The examiner is asked to review all pertinent records associated with the claims file, including service treatment records, and to offer comments and an opinion as to whether the current bilateral hearing loss is at least as likely as not (i.e. a 50 percent or greater probability) due to acoustic trauma during service. The examiner is asked to explain in detail the underlying reasoning for his or her opinion. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3.Schedule the Veteran for an examination of the current severity of his lumbar spine disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s lumbar spine disability alone and discuss the effect of the lumbar spine disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Pursuant to Correia, the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If any of the testing cannot be performed, the examiner must state as much. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel