Citation Nr: 1807562 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-11 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a bilateral leg condition, to include the feet, knees, and ankles. 2. Entitlement to service connection for a cervical spine disorder, to include degenerative disc disease (DDD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Carolyn Colley, Associate Counsel INTRODUCTION The Veteran had active service from May 1966 to May 1968. This appeal is before the Board of Veterans' Appeals (Board) from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The issues of entitlement to service connection for a low back disorder and entitlement to a total disability rating for individual unemployability (TDIU) have been raised by the record in a December 2010 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The evidence of record is silent for a diagnosis of a bilateral leg condition, to include the feet, knees, and ankles. 2. The evidence of record does not show that the Veteran's cervical spine disorder, to include degenerative disc disease (DDD), is related to or a result of active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral leg condition, to include the feet, knees, and ankles, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.305, 3.309 (2017). 2. The criteria for service connection for a cervical spine disorder, to include degenerative disc disease (DDD), have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.305, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). There is thus no prejudice to the Veteran in deciding this appeal. As for the duty to assist, service treatment records and pertinent post-service medical records have been obtained, to the extent available. The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding. The Board notes that a VA medical opinion was not provided in this case relating to the Veteran's claim for entitlement to service connection for a bilateral leg condition nor a cervical spine disorder. However, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is 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. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). To that end, aside from his own statements, the Veteran has not provided any medical evidence suggesting that any bilateral leg condition (to include the feet, knees, and ankles) or any cervical spine disorder addressed herein is etiologically-related to his period of active service. Further, no such diagnosis for a bilateral leg condition is of record. As such, the Veteran's reports of undocumented symptoms alone are insufficient to trigger VA's duty to provide an examination with an opinion. See Waters, 601 F.3d 1274. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection The Board notes that in December 2010 the Veteran claimed entitlement to service connection for a bilateral leg condition (to include the feet, knees, and ankles) and a cervical spine disorder. The Veteran contends that there is a causal relationship between the purported bilateral leg condition, to include the feet, knees, and ankles, manifested as pain and swelling, and his period of active duty service. However, he evidence and record are silent as to the any specific contention regarding the nature of the purported causal relationship between a cervical spine disorder and the Veteran's period of active duty service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as arthritis or organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Turning to the evidence of record, in March 1968, in anticipation of his impending separation from active duty service, the Veteran stated that he was in good health and that he was not experiencing neck, spine, or foot trouble, "trick" or lock knee, joint pain, leg cramps, nor painful or swollen joints, and there are no reports of such in the Veteran's service treatment records. Post-service, in July 2007, the Veteran was assigned a diagnosis of DDD by his private physician, Dr. A.G.. Dr. A.G. noted that there was anterior lipping on the C5 and C6, and narrowing of the fourth and fifth cervical disc spaces. That said, the diagnosis provided by Dr. A.G lacks any indication that the current diagnosis is related to the Veteran's active duty service, nor is there an indication that Dr. A.G. reviewed any part of the Veteran's claims file, to include the Veteran's service treatment records. On the contrary, although no specific details are included, the physician notes an indication of a status post vehicle accident, without mention as to whether such occurred during the Veteran's period of active duty service. In December 2010, the Veteran stated that, when stationed in Korea in 1967, he was treated for swollen knees and ankles; however; as previously noted, the Board found no such reports in the Veteran's service treatment records. In January 2011, the Veteran stated that he is unable to maintain gainful employment due to constant pain in his feet. A. Bilateral Leg Condition The evidence of record does not show a diagnosis of a left or right leg condition. In the Appellant's Brief dated December 7, 2017, the Veteran's representative acknowledges that there is no documentation in the Veteran's service treatment records for a bilateral leg condition and that post-service outpatient treatment records were reviewed but there is no documented nexus to service. Without such signs and symptoms, there is no disability for which service connection can be granted. Notably, although the Veteran claims to be experiencing pain, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). The Court has specifically disallowed service connection where there is no present disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of a current clinical diagnosis, service connection for a bilateral leg condition must, therefore, be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Cervical Spine Disorder The evidence of record indicates that the Veteran was assigned a diagnosis of DDD in July 2007. Thus, the first criterion for entitlement service connection is met. In regard to presumptive service connection under 38 C.F.R. §§ 3.307(a)(3) and 3.309(a), to the extent the Veteran's diagnosed DDD may be considered the presumptive disease "arthritis," the evidence of record does not indicate that the Veteran's cervical spine disorder manifested to a degree of 10 percent within one year following discharge from service. And without any competent or credible lay or medical evidence of cervical spine symptoms over the forty year time period from service discharge until the 2007 diagnosis, there is no basis to award service connection the cervical spine disability based on chronicity or continuity of symptomatology under the provisions of 38 C.F.R. § 3.303(b). Turning now to the second criterion for direct service connection, the Veteran must show an in-service incurrence of a disease or injury. As noted previously, the STRs are silent for any complaints, diagnosis, or treatment for any injury or ailment of the cervical spinal. The Board reiterates that neither the Veteran nor his representative have articulated a theory of how the cervical spine disability it related to service. Indeed, no particular in-service injury or event is described or recounted. Without an in-service occurrence, service connection must be denied. The Board also emphasizes that the Veteran did not begin to seek medical care until 2007, when he was diagnosed with DDD, nearly forty years after his period of active duty service. This is evidence that weighs against the Veteran's claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor for consideration in deciding a claim). Again, the only substantive evidence submitted by the Veteran was the documentation the initial diagnosis of cervical spine DDD in 2007; but this evidence did not relate this diagnosis to an injury or disease sustained in service. For all the reasons set forth above, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for a cervical spine disability is not warranted. ORDER Service connection for a bilateral leg condition, to include the feet, knees, and ankles, is denied. Service connection for a cervical spine disorder, to include DDD, is denied. ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs