Citation Nr: 19155293 Decision Date: 07/18/19 Archive Date: 07/17/19 DOCKET NO. 16-39 993 DATE: July 18, 2019 ORDER Entitlement to service connection for a right elbow condition, to include as secondary to the service-connected right shoulder strain is denied. Entitlement to service connection for a right knee condition is denied. REMANDED Entitlement to service connection for a left foot/ankle condition is remanded. FINDINGS OF FACT 1. The competent evidence does not demonstrate that the Veteran currently experiences a diagnosed right elbow condition, nor has he experienced one during the pendency of the appeal or recent to the filing of the claim. 2. The competent evidence does not demonstrate that the Veteran currently experiences a diagnosed right knee condition, nor has he experienced one during the pendency of the appeal or recent to the filing of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right elbow condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. 2. The criteria for Entitlement to service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1987 to January 2014, to include service in Afghanistan. The Board notes that the Veteran also had claims on appeal relating to the ratings assigned for osteoarthritis in his hands, arthritis in his left knee and rhinitis. In a May 2019 rating decision, the RO increased the ratings for his hands and left knee to the level the Veteran requested in his August 2015 notice of disagreement. As such, the RO considered this to be a full grant of the benefits sought, and the Board concurs with this assessment. In that May 2019 rating decision, the RO also granted a 10 percent rating for rhinitis, which the Veteran also indicted would satisfy his appeal. In doing so, the RO combined this claim with his other claims related to headaches and a sinus condition. Indeed, while not previously service-connected, the 10 percent rating for this condition was under 38 C.F.R. § 4.97, DC 6512, which addresses sinusitis. Based on the evidence of record, the Board agrees that these conditions are correctly consolidated, and that separate ratings would constitute pyramiding. 38 C.F.R. § 4.14. Finally, although the Veteran also submitted a substantive appeal, VA Form-9 relating to an acquired psychiatric disorder, back disorder, and neuropathy in the lower extremities, he was informed in January 2019 that this Form-9 was untimely and could not be accepted. As such, these issues are not on appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for a right elbow condition, to include as secondary to the service-connected right shoulder strain The Veteran contends generally that he has right elbow pain. The question before the Board is whether the Veteran has a diagnosable right elbow condition that is attributable to an in-service injury, event or occurrence. Upon consideration of the record, the Board concludes that the preponderance of the evidence is against a finding that the Veteran has a diagnosable right elbow condition. A review of the Veteran’s service treatment records (STRs) does not reveal any complaints, treatment, or diagnoses relating to a right elbow condition. The Veteran was provided a VA elbow examination in December 2013. On examination the Veteran showed full range of motion measurements, no functional loss, and imaging was negative for arthritis. Available post-service VA and private medical records do not show that the Veteran has sought treatment for any symptoms of a right elbow condition. There is no competent evidence to suggest that the Veteran currently has a diagnosable right elbow injury. Although he asserts generally that he has right elbow pain, the available evidence shows full range of motion and no functional loss; therefore, the evidence does not support finding the Veteran’s pain reaches a level of functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In light of the above evidence showing no current diagnosis of a right elbow condition, the Board finds that the preponderance of the evidence is against a determination that, even in light of Saunders, the Veteran has the condition at issue or that it is attributable to service. Accordingly, service connection for a right elbow condition must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for a right knee condition The Veteran contends generally that he has right knee pain. The question before the Board is whether the Veteran has a diagnosable right knee condition that is attributable to an in-service injury, event or occurrence. Upon consideration of the record, the Board concludes that the preponderance of the evidence is against a finding that the Veteran has a diagnosable right knee condition. A review of the Veteran’s STRs show complaints of right knee pain and a diagnosed MCL and PCL sprain of the right knee in August 1991. The Veteran was provided VA knee examinations in December 2013 and January 2019. On examination the Veteran showed full range of motion measurements, no subluxation, no instability, no history of a meniscal condition, no functional impairment, and imaging was negative for arthritis. Available post-service VA and private medical records do not show that the Veteran has sought treatment for any symptoms of a right knee condition. There is no competent evidence to suggest that the Veteran currently has a diagnosable right knee injury. Although he asserts generally that he has right knee pain, the available evidence shows full range of motion and no functional loss; therefore, the evidence does not support finding the Veteran’s pain reaches a level of functional impairment of earning capacity. See Saunders, supra. In light of the above evidence showing no current diagnosis of a right knee condition, the Board finds that the preponderance of the evidence is against a determination that, even in light of Saunders, the Veteran has the condition at issue or that it is attributable to service. Accordingly, service connection for a right knee condition must be denied. Brammer, supra. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for a left foot/ankle condition is remanded. The Veteran was provided VA foot and ankle examinations in December 2013. The foot and ankle examinations failed to list any previous diagnoses for left foot or left ankle conditions. The Veteran’s enlistment examination list diagnosed pes planus. February 1994 STRs show a diagnosis of a left ankle ligament strain and August 1997 STRs show a diagnosis for left foot mild plantar fascitis. The Veteran should be provided an addendum opinion with a thorough review of the Veteran’s medical history to elicit an opinion as to the nature and etiology of any current foot/ankle condition. The matters are REMANDED for the following action: 1. Make efforts to obtain all outstanding medical records in accordance with the duties set forth in 38 C.F.R. § 3.159(c). 2. After all outstanding records have been associated with the claims file, forward the Veteran’s claims file to a qualified VA medical professional to provide an addendum opinion to determine the current nature and etiology of the Veteran’s left foot/ankle conditions. (New examinations may be conducted if deemed necessary). A full medical history should be documented in the examination report. All opinions must be supported by a rationale The examiner is asked to address the following: (a.) Provide a current diagnosis for any left foot and/or ankle condition which may be manifested at any time during the period on appeal, including any complaints of pain that result in a functional impairment of earning capacity; (b.) If the Veteran does not now have, but previously had, any diagnosed left ankle condition, when did that condition resolve; and   (c.) Provide an opinion as to whether any diagnosed left ankle or foot condition at least as likely as not is etiologically related to service, to include diagnosed in-service left ankle ligament strain. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel