Citation Nr: 1817478	
Decision Date: 03/22/18    Archive Date: 04/03/18

DOCKET NO.  13-09 849	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for bilateral shin splints.

2.  Entitlement to service connection for bilateral knee arthritis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. N. Quarles, Associate Counsel
INTRODUCTION

The Veteran served on active duty from April 2008 to September 2008.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  


FINDINGS OF FACT

1.  There is no competent evidence of a current diagnosis for bilateral shin splints.

2.  There is no competent evidence of a current diagnosis for bilateral knee arthritis.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral shin splints have not been met.  38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303 (2017).

3.  The criteria for service connection for bilateral knee arthritis have not been met.  38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).  The Veteran waived RO readjudication of newly submitted evidence during the November 2017 Board hearing before the undersigned Veterans Law Judge.  

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service.  38 C.F.R. § 3.303(d).
Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Certain chronic disabilities are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  Chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b).  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court), clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303 (b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a), to include sensorineural hearing loss and tinnitus. 

The Board has reviewed the Veteran's service treatment records and post-service medical records but finds no evidence suggesting any current diagnosed knee, tibia, or fibula disabilities.  The Veteran's service treatment records show treatment for shin splints in service.  The Veteran was treated for patellofemoral chondromalacia in 2008 post service records.  Private treatment records from December 2008 and February 2009 are negative for diagnoses of knee arthritis.  An April 2012 VA orthopedic examination report indicated negative findings for a current knee disability.  The examiner found the knees bilaterally normal outside of signs of crepitus.  The examiner acknowledged the past diagnosis of bilateral patellofemoral chondromalacia in 2008, but noted the Veteran had completed treatment and has no further treatment for a knee condition since February 2009.  The examination determined the Veteran's knees were negative for arthritis based on imaging studies. 

The Board notes that the Veteran contends constant knee pain since separation from service.  However, the Veteran has not sought medical treatment for a knee disability or shin splints since 2009, and the Veteran's record is negative for positive diagnoses for either knee or tibia/fibula conditions since submitting her claim for service connection in January 2012.  See McClain v. Nicholson, 21 Vet. App. 319 (2007).  The Veteran reports bilateral knee pain since service.  For VA purposes, a disability is" the impairment of earning capacity" resulting from "a disease, injury, or defect."  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Pain alone, without an underlying diagnosed medical condition, disease, or injury, does not constitute a disability on which claim of service connection may be based.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999).

Again, the Board acknowledges the Veteran's lay report of pain from her Board hearing.  The Veteran is competent to describe current symptoms but does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  Accordingly, her lay opinion lacks probative value and is substantially outweighed by the July 2016 examiner's opinion; the preponderance of the evidence is against the claims, and the claims must be denied.  38 U.S.C. § 5107(b).  









ORDER

Entitlement to service connection for bilateral shin splints is denied.

Entitlement to service connection for bilateral knee arthritis is denied.



____________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs