Citation Nr: 1808012 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-21 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating for service-connected depression in excess of 30 percent disabling. 2. Entitlement to an initial rating for service-connected left sternoclavicular sprain with traumatic arthritis (left shoulder disability) in excess of 10 percent disabling. 3. Entitlement to service connection for left retrocalcaneal bursitis (foot disability). 4. Entitlement to service connection for a left arm disability, to include as secondary to service connected left shoulder disability. 5. Entitlement to service connection for a right wrist disability, to include as secondary to service connected left shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel INTRODUCTION The Veteran served on active duty from July 7, 2004 to July 22, 2004 and June 2007 to April 2008. This matter is before the Board of Veterans' Appeal (Board) on appeal from a May 2011 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Seattle, Washington. This appeal was processed using the Virtual VA/VBMS paperless claim processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record. The issues of (1) entitlement to an increased rating in excess of 10 percent for a left shoulder disability, (2) entitlement to an increased rating in excess of 30 percent for depression, (3) service connection for a left arm disability, and (4) service connection for a right wrist disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran does not have a current diagnosis of a left foot disability. CONCLUSION OF LAW The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) 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 a duty to assist argument). II. Service Connection The Veteran seeks service connection for a left foot disability. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The Veteran asserts that he currently suffers from a left foot disability as a result of his active duty service. When seeking service connection, the threshold requirement is that the Veteran demonstrates a current disability at some point during the pendency of the appeal. In the absence of competent evidence showing a current disability, service-connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Preliminarily, the Board notes that the Veteran's treatment records throughout the period on appeal reflect no definitive diagnosis or treatment of a left foot disability. The January 2011 VA examination report noted that the Veteran was diagnosed with left retro calcaneal bursitis that was treated with Naproxen during service. A week later after receiving treatment, the Veteran's symptoms were relieved. The Board notes the Veteran service treatment records did not document any further complaints related to the Veteran's left foot. At that time, the examiner also provided that Veteran was not receiving treatment for a left foot disability, and there was no evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weight bearing. Moreover, the Board notes that the Veteran has not alleged or provided any evidence as to the connection between his claimed left foot condition and his military service besides the resolved in-service left retro calcaneal bursitis. As noted above, the Veteran has not received any treatment or diagnosis related to a left foot disability since his separation from military service. The absence of post-service complaints, findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (noting that 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). Thus, any assertions that he may make as to onset during service with subsequent continuity of are not supported by the objective evidence of record. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131. In the absence of proof of present disability there can be no valid claim. Brammer, 3 Vet. App. At 225; see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Thus, in the absence of competent evidence showing a current diagnosis of a left foot disability, it is unnecessary to address the remaining elements of the claim for service connection. See Brammer, 3 Vet. App. at 225. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, given the absence of evidence that there is a current left foot disability, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for a left foot disability is not warranted. ORDER Entitlement to service connection for a left foot disability is denied. REMAND The Veteran is seeking an increased disability rating in excess of 30 percent for his service connected depression and a disability rating in excess of 10 percent for a service connected left shoulder disability. The Veteran also seeks service connection for a left arm disability and right wrist disability. Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of these claims. The Veteran contends that his service connected depression is more disabling than the assigned 30 percent rating. The Veteran was last provided a VA examination related to his service connected depression in January 2011, approximately seven years ago. The January 2011 VA examination reflects that related to his depression, the Veteran had symptoms of anger, depressed mood, chronic sleep impairment, attention disturbance, and memory impairment. The Veteran was assigned a Global Assessment of Functioning (GAF) score of 55, which correspondences with moderate symptoms or moderate difficulty in social, occupational, or school functioning. DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). The examiner noted that Veteran's depression resulted in some level of occupational and social impairment, but did not specify the level of impairment. Since that time, the Veteran has received treatment related to his depression from VA facilities. A September 2014 VA mental health note provided that Veteran reported consistent improvement of his symptoms. However, VA outpatient mental health notes from September and November 2015 detailed that the Veteran suffering from significant depression with low levels of motivation or desire, and feelings of hopelessness, anhedonia, and shame. Given the apparent changing nature and severity of the Veteran's service-connected depression since the January 2011 VA examination, the Board finds that the Veteran must be provided another VA examination to determine the current nature and severity of his service connected acquired psychiatric disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). The Veteran contends that his service connected left shoulder disability is more disabling than the current 10 percent disability rating. The Veteran was most recently provided a VA examination as to his service connected left shoulder disability in March 2013. The report for that examination includes range-of-motion measurements for the Veteran's left shoulder, to include indications of where objective evidence of painful motion began. However, the report does not specify whether the range-of-motion measurements were taken on active motion, on passive motion, on weight-bearing, or on nonweight-bearing. In addition, the examiner did not indicate that he was unable to perform range-of-motion testing on active, passive, weight-bearing, and nonweight-bearing or that such testing was not necessary. Therefore, the examination report does not make clear the extent to which pain affects the Veteran's passive, active, weight-bearing, and nonweight-bearing motion of the left shoulder. The final sentence of 38 C.F.R. § 4.59 provides, in relevant part, that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing . . . ." Therefore, to be adequate for rating purposes, an examination of the joints must, whenever possible, include the results of the range-of-motion testing described in the final sentence of 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the March 2013 examination report does not include range-of-motion testing on active, passive, weight-bearing, and nonweight-bearing or a statement to the effect that such testing was not possible or unnecessary in this case. In view of the above, the March 2013 VA examination for the Veteran's left shoulder disability is inadequate for rating purposes. The Veteran must therefore be afforded a new VA examination that includes all of the necessary information as set forth in 38 C.F.R. § 4.59. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran contends that his left arm disability and right wrist disability are related to his military service. The Veteran's service treatment records did not reveal any complaints, treatment, or diagnoses related to the Veteran's claimed left arm disability or right wrist disability. The Veteran was afforded a general VA examination in January 2011. The examination report provided that the Veteran reported right wrist pain that Veteran believed was due to overcompensating for his service connected left shoulder disability. Additionally, the examiner noted that the Veteran reported left arm numbness. The examiner did not provide an etiological opinion for either condition. A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). The Board notes that the Veteran is service connected for a left shoulder disability due to an in-service injury. During service, the Veteran suffered a left shoulder injury when a howitzer shell fell on his chest and cracked his sternum on the left side. With regards to the Veteran's claimed left arm disability, the Veteran's recent VA medical records detailed left arm pain that radiates down his arm. As mentioned above, the Veteran has also reported numbness of the left arm. The Board notes that the Veteran was provided a March 2013 Shoulder and Arm Conditions VA examination, however the examination did not address whether the Veteran suffered from any neurological conditions of the left arm. The Board finds that there is a reasonable possibility that the Veteran's reported left arm pain and numbness could be related to his in-service injury, or his service connected left shoulder disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Turning to the Veteran's right wrist disability, the Veteran has not alleged or provided any evidence as to the connection between his right wrist condition and his military service. However, the Veteran has asserted that his claimed right wrist disability could be related to his service connected left shoulder disability. To that end, the Veteran asserts that his claimed right wrist disability is due to overcompensating for his service-connected left shoulder. The Veteran's recent VA medical records contain documentation of ongoing right wrist pain. Moreover, the Board notes that the January 2011 VA examination did not provide etiological opinions for the Veteran's left arm disability or right wrist disability. Therefore, the Board finds that the January 2011 VA is inadequate. 38 C.F.R. § 3.159 (c) (4) (2016); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board also requests the AOJ to attempt to obtain any additional evidence from the Veteran related to his depression, left shoulder disability, left arm disability, and right wrist disability. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran and his representative a letter requesting that he provide sufficient information and, if necessary, authorization, to obtain any additional evidence from all VA and non-VA health care providers who have treated him for his right wrist disability, left arm disability, service connected depression, and service connected left shoulder that is not currently of record. Specifically, request that the Veteran furnish, or furnish appropriate authorizations to obtain, all outstanding, pertinent private (non-VA) records. If the Veteran responds, assist him in obtaining any additional evidence identified, following current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 2. After all records and/or responses received from each contacted entity have been associated with the claim (to the extent possible), schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected acquired psychiatric disability. The record and a copy of this remand must be made available to the examiner. The examination must include all testing deemed necessary by the examiner in conjunction with this request. The examiner should conduct a mental status examination on the Veteran and report all manifestations related to the Veteran's service-connected acquired psychiatric disability. The examiner should consider the lay testimony of record. A complete rationale for all opinions must be provided 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected left shoulder disability. The examination should include all studies, tests, and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to the disability. The record and a copy of this remand must be made available to and reviewed by the examiner. The examiner must address the following: (a) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), and 38 C.F.R. § 4.59 (2017), the examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the left shoulder. The examiner should also determine whether the Veteran's right shoulder is undamaged. If the right shoulder is undamaged, the examiner should also record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the right shoulder. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. For the examination of the knee, the examination results should be recorded using VA Form 21-0960M-9, May 2013, Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ), or any other form or DBQ that provides all of the same information as "Section V-Pain" of VA Form 21-0960M-9, May 2013. In recording the ranges of motion for the Veteran's shoulder, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. The examiner should also indicate whether the Veteran experiences additional functional loss during flare-ups of the service-connected left shoulder disability. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. (b) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups in the left shoulder. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. The examiner must provide a complete rationale for any opinion expressed. If the any requested opinion cannot be provided without resort to speculation, the examiner must explain why the opinion cannot be offered, and state whether the inability is due to the absence of specific evidence or is due to the limits of scientific or medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). If the inability is due to the absence of evidence, then the examiner should state what evidence would be needed for an opinion to be provided. 4. Schedule the Veteran for examinations as to the etiology of his claimed right wrist disability and claimed left arm disability. The contents of the electronic claim files (in VBMS and Virtual VA), to include a copy of this Remand, are to be made available to the designated examiner for review. The examiner is to note in the medical report that this action has been accomplished. All tests and studies, as well as the clinical findings contained therein, should be reported in detail. The examiner is asked to provide an opinion addressing the following questions: (a) Provide diagnoses for all current right wrist disabilities, to include those noted during the appeal period. (b) Provide diagnoses for all current left arm disabilities, to include those noted during the appeal period. (c) Is it at least as likely as not (50 percent or greater probability) that any right wrist disability was caused by, or results from his service connected left shoulder disability? (d) Is it at least as likely as not (50 percent or greater probability) that any right wrist disability has been aggravated as the result of his service connected left shoulder disability? (e) Is it at least as likely as not (a 50 percent probability or greater), that any left arm disability began in service, was caused by service, or is otherwise related to the Veteran's military service, to include the 2007 in-service howitzer shell incident ? (f) Is it at least as likely as not (50 percent or greater probability) that any left arm disability was caused by the Veteran's service connected left shoulder disability? (g) Is it at least as likely as not (50 percent or greater probability) that any left arm disability was chronically worsened (aggravated) by the Veteran's service connected left shoulder disability? Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. The examiner should consider the lay testimony of record. The examiner should specifically address the Veteran's complaints of numbness and pain of the left arm and the right wrist pain due to overcompensating for the service connected left shoulder disability. A detailed rationale supporting the examiner's opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to 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. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. After the development above has completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above, and re-adjudicate the issues on appeal. If determination remains adverse to the Veteran, the AOJ should furnish an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the m matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs