Citation Nr: 18129079 Decision Date: 08/23/18 Archive Date: 08/23/18 DOCKET NO. 15-26 212A DATE: August 23, 2018 ORDER Service connection for back strain and thoracolumbar (“low back disability”) is denied. Service connection for right knee disability is denied. REMANDED Entitlement to a disability rating higher than 10 percent for left knee patellofemoral syndrome (“left knee disability”) is remanded. Entitlement to a compensable disability rating for headaches is remanded. FINDINGS OF FACT 1. The probative evidence of record does not indicate a low back disability at any time during the appeal period. 2. The probative evidence of record does not indicate a right knee disability at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.§§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As noted in the May 2018 deferred rating decision, it appears that the Veteran is raising the issue of entitlement to a disability rating higher than 30 percent for posttraumatic stress disorder (PTSD) and entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. Effective March 24, 2015, when a claimant submits a communication indicating a desire to apply for VA benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.150(a). 79 Fed. Reg. 57,660, 57,695 (Sept. 25, 2014) (to be codified at 38 C.F.R. § 3.155(a)). When such a communication is received, VA shall notify the claimant and the claimant’s representative of the information necessary to complete the application form or form prescribed by the Secretary. Id. The Veteran’s claims regarding increased disability rating for PTSD and entitlement to a TDIU are referred to the Agency of Original Jurisdiction (AOJ) for any appropriate action. 38 C.F.R. § 19.9(b) (2017). Service Connection Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury or disease in the 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish direct service connection a Veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In making all determinations, the Board must fully consider the lay assertions of record. A lay person is competent to report on the onset and recurrence of his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (2012). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board has reviewed the entire record, with an emphasis on the evidence relevant to this appeal. Although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, in the present claims. Low back disability and right knee disability The Veteran contends that service connection is warranted for his low back disability and right knee disability. Upon review of the evidence, the Board finds that service connection is not warranted in that there is no probative evidence of record to indicate a diagnosis of either a low back disability or a right knee disability. Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran’s claims of service connection for low back disability and right knee disability. An October 2012 VA medical record indicates that upon review of systems, there was no diagnosis related to the Veteran’s right knee. The Veteran was afforded VA examinations in April 2014 for his back and his knee. Upon examination, the VA examiner found that there was no diagnosis related to a thoracolumbar condition. There was no objective evidence of painful motion and the x-rays did not show arthritis. Upon examination of the knees, the VA examiner diagnosed a disability related to the left knee, but no disability related to the right knee was noted. The examiner did note that there was tenderness or pain to palpation to both knees. There was no objective evidence of painful motion of the right knee and the x-rays did not show arthritis. Of record is an October 2014 VA clarification from the examiner that performed the knee examination in April 2014. She clarified that the part of the knee examination that referred to palpation of the knees should read “no tenderness to palpation to right knee,” and she highlighted that there was no diagnosis indicated. The Board understands that the Veteran and his attorney believe that the Veteran has a low back disability and right knee disability, but the medical evidence of record is far more probative and outweighs their contentions. There is no medical evidence of record to show that the Veteran has any such disabilities or functional impairment in the low back or right knee. In this case, the only evidence that the Veteran has a low back or right knee disability comes from the Veteran’s subjective statements. The Board notes that the Veteran is competent to report symptoms as that requires only personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Degmetich v. Brown, 104 F.3d 1328 (1997). As a layperson, the Veteran is competent to report that he experiences back pain and right knee pain. However, neither he nor his representative is competent to attribute any symptoms as part of a diagnosis of a low back disability or right knee disability and they are laypersons in this regard. Absent competent and reliable evidence of a claimed low back disability and right knee disability, the Board concludes that the claims of entitlement to service connection for a low back disability and right knee disability must be denied. Again, a threshold requirement for service connection is whether there is a current disability. None of the medical evidence of record establishes this. The Veteran has testified to pain in his low back and right knee, and the Board does not dispute this. However, at no point during the appeal period has the Veteran demonstrating anything more than pain; to include functional loss. The Federal Circuit Court recently held in Saunders v. Wilkie; No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018), that 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 connected simply by asserting subjective pain.” The preponderance of the evidence is against the Veteran’s claims and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND Left knee disability and headache disability In a November 2014 notice of disagreement, the Veteran asserted that his left knee disability and his headache disability have increased in severity since the Veteran was last examined by VA in April 2014. The Veteran should be provided an opportunity to report for VA examinations to ascertain the current severity and manifestations of his left knee and headache disabilities. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel