Citation Nr: 19106947 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-26 379 DATE: January 29, 2019 ORDER Entitlement to service connection for left shoulder condition is denied. Entitlement to service connection for left knee condition is denied. Entitlement to service connection for right knee condition is denied. Entitlement to service connection for bilateral pes planus (flat feet) is denied. FINDINGS OF FACT 1. The Veteran’s left shoulder condition did not have onset in active service or within one year after separation from active service, is not related to his active service, and was not caused or aggravated by a service-connected disability. 2. The Veteran does not have a current left knee disability. 3. The Veteran does not have a current right knee disability. 4. The Veteran has never had bilateral pes planus (flat feet). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left shoulder condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for left knee condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for right knee condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for entitlement to service connection for bilateral pes planus (flat feet) have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1992 to August 1999. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran filed a notice of disagreement (NOD) for the rating decision with respect to the claims in March 2015. A statement of the case (SOC) was issued in September 2016 and the Veteran filed his substantive appeal in a VA Form 9 May 2016. The Board notes that the filing of the Veteran’s VA Form 9 was not timely. However, the RO nevertheless issued a certification of appeal, VA Form 8, on September 18, 2018. Accordingly, the Board has waived the timeliness requirement of the substantive appeal, VA Form 9, in this case and assumes jurisdiction over the Veteran’s claims. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (the failure to file a timely substantive appeal is not jurisdictional and may be waived by the Board). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, 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’- the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A lay person is competent to establish a diagnosis in the following circumstances: (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1376-77. 1. Entitlement to service connection for left shoulder condition The Board notes that the medical records in the claims file indicate that the Veteran has a diagnosis of a left shoulder condition. In his NOD and VA Form 9, the Veteran claimed that he injured his shoulder “during company function activities” during active service. However, the Veteran’s service treatment records (STRs) do not indicate that the Veteran complained of, or was diagnosed with, a left shoulder condition during active service. As it pertains to the Veteran’s shoulder condition, he is competent to report that he suffered from shoulder pain or injured his shoulder during active service. However, the Veteran is not competent to give a medical opinion on the etiology of his current diagnosis, as that requires medical expertise. Moreover, the Veteran’s lay statement that he injured his shoulder during company function activities is not consistent with his STRs, which fail to show any record of treatment, diagnosis, or complaints related to this condition. In addition, the Veteran’s medical records contradict a continuity of symptomatology of the claimed left shoulder condition since service. The earliest available medical record indicating complaints about this condition is from a July 2014 private examination, during which the Veteran stated, “The pain initially started 3 weeks ago. There was no obvious precipitating injury.” As such, the Veteran’s claim that he injured his left shoulder during company function activities is not competent, credible, or probative evidence as to the etiology of the Veteran’s current left shoulder condition. See Jandreau, 492 F.3d 1372. The Board notes that the Veteran was not afforded a VA examination nor was an opinion obtained for his condition; however, neither an examination nor an opinion is warranted as the duty to assist has not been triggered. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). Although McClendon sets a low bar, that bar has not been met here as there is no indication of a link between the Veteran’s conditions and his active service. The Veteran’s STRs contain no evidence of the Veteran’s disability during active service. The first medical evidence of the Veteran’s left shoulder condition was in July 2014, 15 years after his separation from active service. The only evidence of a possible connection between the Veteran’s disability and his service are the Veteran’s own broad and conclusory statements that the condition is related to service, and such statements are not sufficient to trigger VA’s obligation to obtain an examination or opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). The preponderance of evidence is against a finding that there is a nexus between the Veteran’s current left shoulder condition and his active service. In addition, the preponderance of evidence is against a finding that his left shoulder condition manifested itself to a degree of disability of ten percent or more within a year of discharge from service. Therefore, the claim of service connection for left shoulder condition must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b), 38 C.F.R. § 3.102. 2. Entitlement to service connection for left knee condition The Board notes that STRs from 1996 and 1999 show that the Veteran complained of left knee pain and was diagnosed with a left knee condition during active service. Therefore, there is competent evidence of an in-service event of a left knee injury, which would meet the second element of service connection. However, in order to qualify for service connection, there must be both an in-service occurrence and the existence of a current disability. See Holton, 557 F.3d at 1366. After a thorough review of the Veteran’s post-service VA and private medical records, the Board has not found any evidence that the Veteran has a current diagnosis of a left knee condition. Other than his brief statements in his NOD and VA Form 9 claiming he was treated for this condition during service, the Veteran has not submitted any lay evidence showing he has a current left knee disability. The Board notes that the Veteran was not afforded a VA examination nor was an opinion obtained for his condition; however, neither an examination nor an opinion is warranted as the duty to assist has not been triggered. Although McClendon sets a low bar, that bar has not been met here as there is no competent evidence of a current left knee disability or persistent or recurrent systems of a left knee disability. While there is competent evidence that the Veteran had a left knee condition during active service, the duty to assist is not triggered unless there is also competent evidence of a current disability or persistent or recurrent symptoms of that disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). Therefore, because there is no evidence of a current diagnosed disability, the preponderance of evidence is against a finding that the Veteran has a current left knee disability. Therefore, the claim of service connection for left knee condition must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b), 38 C.F.R. § 3.102. 3. Entitlement to service connection for right knee condition The Board notes that STRs from 1995 show that the Veteran complained of right knee pain and was diagnosed with a right knee condition during active service. Therefore, there is competent evidence of an in-service event of a right knee injury, which would meet the second element of service connection. However, in order to qualify for service connection, there must be both an in-service occurrence and the existence of a present disability. See Holton, 557 F.3d at 1366. After a thorough review of the Veteran’s post-service VA and private medical records, the Board has not found any evidence that the Veteran has a current diagnosis of a right knee condition. Other than his brief statements in his NOD and VA Form 9 claiming he was treated for this condition during service, the Veteran has not submitted any lay evidence showing he has a current right knee disability. The Board notes that the Veteran was not afforded a VA examination nor was an opinion obtained for his condition; however, neither an examination nor an opinion is warranted as the duty to assist has not been triggered. Although McClendon sets a low bar, that bar has not been met here as there is no competent evidence of a current right knee disability or persistent or recurrent systems of a right knee disability. While there is competent evidence that the Veteran had a right knee condition during active service, the duty to assist is not triggered unless there is also competent evidence of a current disability or persistent or recurrent symptoms of that disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). Therefore, because there is no evidence of a current diagnosed disability, the preponderance of evidence is against a finding that the Veteran has a current right knee disability. Therefore, the claim of service connection for right knee condition must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b), 38 C.F.R. § 3.102. 4. Entitlement to service connection for bilateral pes planus (flat feet) After a thorough review of the Veteran’s medical records, the Board has not found any evidence that the Veteran had bilateral pes planus (flat feet) during or after active service. At a June 1999 examination shortly before separation from active service, the examiner marked that the Veteran’s feet were in normal condition. In a July 1999 self-reported medical questionnaire taken upon separation, the Veteran did not indicate that he had any foot conditions and denied having any conditions that limited his ability to work in his primary military specialty. Other than his brief statements in his NOD and VA Form 9 claiming that daily wear of issued footwear caused this condition, the Veteran has not submitted any lay evidence showing he had flat feet either during or after active service. The Board notes that the Veteran was not afforded a VA examination nor was an opinion obtained for his condition; however, neither an examination nor an opinion is warranted as the duty to assist has not been triggered. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). Although McClendon sets a low bar, that bar has not been met here as there is no competent evidence that the Veteran ever had flat feet. The Veteran’s STRs and post-service treatment records contain no evidence of the Veteran’s disability during or after active service. The only evidence of a possible connection between the Veteran’s disability and his service are the Veteran’s own broad and conclusory statements that the condition is related to service, and such statements are not sufficient to trigger VA’s obligation to obtain an examination or opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). Because there is no evidence of a current or past diagnosed disability, the preponderance of evidence is against a finding that the Veteran has ever had a diagnosis of flat feet. Therefore, the claim of service connection for bilateral pes planus (flat feet) must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b), 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Garver, Associate Counsel