Citation Nr: 20006624 Decision Date: 01/29/20 Archive Date: 01/27/20 DOCKET NO. 17-47 313 DATE: January 29, 2020 ORDER Entitlement to service connection for a left hand condition is denied. REMANDED Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with bipolar disorder is remanded. Entitlement to a disability rating in excess of 40 percent for thoracolumbar spine strain, degenerative disc and joint disease, intervertebral disc syndrome and scoliosis is remanded. Entitlement to a disability rating in excess of 20 percent for cervical spine degenerative joint disease and strain with intervertebral disc syndrome is remanded. Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to a disability rating in excess of 30 percent for left upper extremity radiculopathy is remanded. Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease is remanded. Entitlement to a disability rating in excess of 10 percent for left knee degenerative joint disease is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a bilateral foot condition, to include bilateral pes planus is remanded. Entitlement to service connection for Type II diabetes mellitus is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Entitlement to special monthly compensation based on aid and attendance/housebound is remanded. Entitlement to special monthly compensation based on loss of use is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a left hand condition at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for a left hand condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1983 to November 1991. In October 2019, he testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. Entitlement to service connection for a left hand condition The Veteran generally contends that he suffers from a left hand condition that is related to his active duty service. The Board finds that service connection is not warranted, and the claim is denied. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis related to his service connection claim for a left hand condition, and he has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007). A review of the Veteran’s available medical records does not show any indication that he has ever been diagnosed, sought medical treatment for, or suffered from symptoms of any left hand condition at any point during the period on appeal. Besides the general assertion the Veteran has made claiming entitlement to service connection, neither he nor his agent have provided any explanation for why the Veteran believes he is entitled to service connection, nor have they delineated what symptoms the Veteran suffers from that would entitle him to service connection. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). Congress has specifically limited entitlement to service connection for disease or injury to cases where such in-service events have resulted in a current disability. See 38 U.S.C. § 1110. Thus, without “competent evidence of current disability,” there can be no award of service connection. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Based on a careful review of the evidence, the Board finds that service connection is not warranted for a left hand condition as the evidence in the record weighs against a finding of a current diagnosis during the period on appeal. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and his service connection claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 70 percent for PTSD with bipolar disorder is remanded. The Board testified at his Board hearing that he attended group counseling sessions to treat symptoms of his PTSD. His VA treatment records show that he attended a PTSD coping skills group in November 2016. He was scheduled to return to the clinic the next month. The record does not contain any more recent treatment records on this issue. Remand is needed to obtain these records. 2. Entitlement to a disability rating in excess of 40 percent for thoracolumbar spine strain, degenerative disc and joint disease, intervertebral disc syndrome and scoliosis is remanded. 3. Entitlement to a disability rating in excess of 20 percent for cervical spine degenerative joint disease and strain with intervertebral disc syndrome is remanded. 4. Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy is remanded. 5. Entitlement to a disability rating in excess of 30 percent for left upper extremity radiculopathy is remanded. While the record contains December 2016 VA examinations regarding the Veteran’s service-connected lumbar and cervical spine disabilities, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the examination reports do not provide range of motion findings that were obtained on active versus passive motion nor range of motion findings in weight-bearing and nonweight-bearing. Rather, in both examination reports, the same examiner stated without explanation that conducting passive range of motion testing was deferred “as it could cause injury to the veteran.” Further, the examiner stated only that there was evidence of pain in the Veteran’s neck on non-weight bearing. The Veteran has testified at his Board hearing that he believes the symptoms of the above-noted disabilities have worsened since his last examinations. Further, he testified to experiencing symptoms of tingling in his right arm and leg, which were not addressed in the January 2017 VA examination reports. Remand is needed to afford the Veteran with new examinations with more thorough findings. 6. Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease is remanded. 7. Entitlement to a disability rating in excess of 10 percent for left knee degenerative joint disease is remanded. While the record contains an April 2017 VA examination regarding the Veteran’s service-connected bilateral knee disabilities, the examination does not comply with the requirements in Correia. The examination report does not provide range of motion findings that were obtained on active versus passive motion nor range of motion findings in weight-bearing and nonweight-bearing. No explanation was provided by the examiner for why these findings were not included in the report. Remand is needed to afford the Veteran a VA examination that includes more thorough findings.   8. Entitlement to service connection for a right ankle disability is remanded. 9. Entitlement to service connection for a left ankle disability is remanded. 10. Entitlement to service connection for a bilateral foot condition, to include bilateral pes planus is remanded. The Veteran testified that he experienced bilateral foot pain and had problems with his ankles both during active service and in the years following discharge from service. He has been diagnosed with bilateral pes planus, and VA treatment records note the Veteran experiences chronic bilateral ankle pain. Considering the Veteran’s testimony and the medical evidence of record, he should be afforded VA examinations with opinions on these issues. 11. Entitlement to service connection for Type II diabetes mellitus is remanded. The Veteran contends that he developed diabetes as a result of poor diet habits during active duty service. He testified that during service he often ate sugary foods which would upset his stomach. VA treatment records show that he has been diagnosed with Type II diabetes. Considering the Veteran’s testimony and the medical evidence of record, he should be afforded a VA examination with opinion on this issue. 12. Entitlement to service connection for erectile dysfunction is remanded. The Veteran contends that he experiences erectile dysfunction because of the medication he takes to treat symptoms of his service-connected PTSD. Remand is needed to afford him a VA examination with opinion on this issue. 13. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that symptoms of sleep apnea had its onset during his active duty service. Specifically, he testified that while on active duty service, he was woken up by fellow service members in the middle of the night who informed him that he was snoring and had stopped breathing in his sleep. His VA treatment records show that he has been diagnosed with sleep apnea, and he uses a CPAP machine to treat his condition. Considering the Veteran’s competent and credible lay testimony and the medical evidence of record, he should be afforded a VA examination with opinion on this issue. 14. Entitlement to a TDIU is remanded. 15. Entitlement to special monthly compensation based on aid and attendance/housebound is remanded. 16. Entitlement to special monthly compensation based on loss of use is remanded. The Veteran’s claims for TDIU and special monthly compensation are inextricably intertwined with the other claims being remanded. These claims therefore must be deferred until further development is completed. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated from November 2016 to the present and associate those documents with the Veteran’s claims file. 2. Then, schedule the Veteran for examination of the current severity of his service-connected lumbar and cervical spine disabilities, as well as left upper and left lower extremity radiculopathy. The examiner must test and provide range-of-motion findings for the Veteran’s lumbar and cervical spine disabilities on active motion, passive motion, and pain with weight-bearing and with nonweight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner must also specifically comment on whether either the lumbar or cervical spine disability involves any functional limitation. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar or cervical spine disability alone and discuss the effect of the Veteran’s service-connected disabilities on any occupational functioning and activities of daily living. An opinion regarding flare-ups should be based on information available in the claims file as to frequency, duration, characteristics, severity or functional loss, to include lay statements. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Then, schedule the Veteran for examination of the current severity of his service-connected bilateral knee degenerative joint disease. The examiner must test and provide range-of-motion findings for the Veteran’s knee disabilities on active motion, passive motion, and pain with weight-bearing and with nonweight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner must also specifically comment on whether either knee disability involves any functional limitation. To the extent possible, the examiner should identify any symptoms and functional impairments due to either knee disability alone and discuss the effect of the Veteran’s service-connected disabilities on any occupational functioning and activities of daily living. An opinion regarding flare-ups should be based on information available in the claims file as to frequency, duration, characteristics, severity or functional loss, to include lay statements. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for examinations by an appropriate clinician to determine the nature and etiology of any diagnosed foot or ankle condition. Copies of all pertinent records should be made available to the examiner for review. Based on the examination and review of the record, the examiner should provide opinions as to the following: (a.) Please identify all diagnosed foot and ankle conditions. (b.) Is it at least as likely as not that any diagnosed foot or ankle condition had its onset in service or is otherwise related to an in-service injury, event, or disease? A complete rationale should be provided for any opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. 5. Schedule the Veteran for examinations by an appropriate clinician to determine the nature and etiology of his Type II diabetes mellitus. Copies of all pertinent records should be made available to the examiner for review. Based on the examination and review of the record, the examiner should provide opinions as to the following: Is it at least as likely as not that the Veteran’s Type II diabetes mellitus had its onset in service or is otherwise related to an in-service injury, event, or disease? A complete rationale should be provided for any opinion. The examiner is asked to specifically comment on the Veteran’s testimony that during active duty service he often ate sugary foods which would leave him with an upset stomach. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. 6. Schedule the Veteran for examinations by an appropriate clinician to determine the nature and etiology of his erectile dysfunction. Copies of all pertinent records should be made available to the examiner for review. Based on the examination and review of the record, the examiner should provide opinions as to the following: Is it at least as likely as not that the Veteran’s erectile dysfunction is (1) proximately due to, or (2) aggravated (defined as any increase in disability) by medication he takes to treat symptoms of his service-connected PTSD with bipolar disorder? A complete rationale should be provided for any opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. 7. Schedule the Veteran for examinations by an appropriate clinician to determine the nature and etiology of sleep apnea. Copies of all pertinent records should be made available to the examiner for review. Based on the examination and review of the record, the examiner should provide opinions as to the following: Is it at least as likely as not that the Veteran’s sleep apnea had its onset in service or is otherwise related to an in-service injury, event, or disease? A complete rationale should be provided for any opinion. The examiner is asked to specifically comment on the Veteran’s testimony that he was woken up by fellow service members while on active duty and informed that he was snoring and had stopped breathing in his sleep. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. (Continued on the next page)   8. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to a TDIU, entitlement to special monthly compensation based upon aid and attendance/housebound, and entitlement to special monthly compensation based on loss of use. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.