Citation Nr: 20006950 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 18-41 490 DATE: January 28, 2020 ORDER Entitlement to service connection for a right ankle condition is granted. Entitlement to service connection for a left foot condition is denied. Entitlement to service connection for a left ankle condition is denied. Entitlement to service connection for a left knee condition is denied. Entitlement to service connection for a left hand condition is denied. Entitlement to service connection for a right hand condition is denied. Entitlement to an earlier effective date prior to September 12, 2016, for the award of service connection for left upper extremity muscle weakness is denied. Entitlement to an earlier effective date prior to September 12, 2016, for the award of service connection for left lower extremity muscle weakness is denied. Entitlement to an earlier effective date prior to September 12, 2016, for the award of service connection for hoarseness and mild swallowing difficulties is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for left lower extremity muscle weakness is remanded. Entitlement to an initial disability rating in excess of 20 percent for left upper extremity muscle weakness is remanded. Entitlement to an initial compensable disability rating for hoarseness and mild swallowing difficulties is remanded. Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for a left shoulder condition is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a right foot condition is remanded. FINDINGS OF FACT 1. The Veteran’s right ankle pain with associated disturbance of locomotion and gait instability was caused by his service-connected multiple sclerosis (presently evaluated as a neurogenic bladder disability). 2. The preponderance of the evidence of record is against finding that the Veteran has had a left ankle, left foot, left knee, or bilateral hand conditions at any time during or approximate to the pendency of the claim. 3. There is no evidence in the record that the Veteran filed formal claims prior to September 12, 2016, seeking entitlement to service connection for left upper extremity muscle weakness, left lower extremity muscle weakness, or hoarseness and mild swallowing difficulties. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right ankle condition are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a); Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018). 2. The criteria for entitlement to service connection for a left foot condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a left ankle condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for a left knee condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. 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. 6. The criteria for entitlement to service connection for a right hand condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for entitlement to an effective date prior to September 12, 2016, for the award of service connection for left upper extremity muscle weakness have not been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400. 8. The criteria for entitlement to an effective date prior to September 12, 2016, for the award of service connection for left lower extremity muscle weakness have not been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400. 9. The criteria for entitlement to an effective date prior to September 12, 2016, for the award of service connection for hoarseness and mild swallowing difficulties have not been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2008 to June 2011. In June 2018, he perfected an appeal of a claim seeking an initial increased rating for service-connected left eye optic atrophy with visual field defect and internuclear ophthalmoplegia. He has requested a Board hearing on this issue. As such, it will be addressed in a separate Board decision. Service Connection 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). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d); Cosman v. Principi, 3 Vet. App. 503 (1992). 1. Entitlement to service connection for a right ankle condition The Veteran maintains that he suffers from a right ankle condition that is secondary to his service-connected multiple sclerosis, which is presently evaluated as a neurogenic bladder disability. The Board concludes that the evidence supports service connection for right ankle pain with limitation of motion and gait instability. The December 2016 VA ankle examination report reflects unequivocally that the Veteran has current right ankle pain with disturbance of locomotion. Further, the VA examiner opined that it was at least as likely as not that the Veteran’s right ankle “strain/pain with ambulating” was due to an unstable gait or limp that was attributable to the Veteran’s service-connected multiple sclerosis. The Board finds that “pain” in this context, when it is combined with functional impairment from limitation of motion, satisfies the requirement for the existence of a disability within the meaning of the applicable legislation. See Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018). It is noted that, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability for VA purposes. Id. The seminal question in this case has not been one of whether the Veteran’s right ankle pain is related to a service-connected disability, but rather whether there was a current disability for VA compensation purposes. See 38 U.S.C. §§ 1110; Degmetich v. Brown, 104 F. 3d 1328 (1997). With consideration of the decision in Saunders, this matter is resolved in favor of the Veteran, and service connection for a right ankle disability is granted. 2. Entitlement to service connection for a left foot condition 3. Entitlement to service connection for a left ankle condition 4. Entitlement to service connection for a left knee condition 5. Entitlement to service connection for a left hand condition 6. Entitlement to service connection for a right hand condition The Veteran generally contends that he suffers from left foot, left ankle, left knee and bilateral hand conditions that are secondary to his service-connected multiple sclerosis, which is now evaluated as a neurogenic bladder disability. For the reasons that follow, the Board finds that service connection is not warranted for any of these respective claims, and they are denied. 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 or functional impairment due to pain that is related to his service connection claims of a left foot, left ankle, left knee and bilateral hand conditions, 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 December 2016 VA examination for the Veteran’s claimed bilateral foot conditions reflected the Veteran’s complaints of right foot pain that is accentuated on use. However, the Veteran did not report any problems with his left foot, and the VA examiner found no functional loss of the left lower extremity attributable to the Veteran’s claimed condition. A December 2016 VA ankle conditions examination, the Veteran reported experiencing pain and gait problems with his right ankle. However, he provided no information on any left ankle problems, and an examination of the left ankle resulted in normal clinical findings. Similarly, in a December 2016 VA knee and lower leg conditions examination, the Veteran did not provide any information on any left knee problems, and an examination of his left knee resulted in normal clinical findings. A December 2016 VA hand and finger conditions examination noted no pain symptoms of the Veteran’s hands. The Veteran denied experiencing any disability due to his hands. The examiner stated he had no current hand symptoms. A review of the Veteran’s available post-service medical records does not show any other indication that he has ever been diagnosed, sought medical treatment for, or suffered from symptoms of any of the above-noted conditions at any point during the period on appeal. Besides the general assertions 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 for any of the respective conditions. 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 any of the above-noted conditions 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 claims, the benefit-of-the-doubt rule does not apply, and his service connection claims must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Effective Date 7. Entitlement to an earlier effective date prior to September 12, 2016, for the award of service connection for left upper extremity muscle weakness 8. Entitlement to an earlier effective date prior to September 12, 2016, for the award of service connection for left lower extremity muscle weakness 9. Entitlement to an earlier effective date prior to September 12, 2016, for the award of service connection for hoarseness and mild swallowing difficulties The Veteran seeks earlier effective dates for the award of service connection for left upper and left lower extremity muscle weakness, as well as hoarseness and swallowing difficulties. Following a review of the pertinent evidence of record, the Board finds that assignment of an earlier effective date for service connection of the Veteran’s claims is not warranted. His respective claims are denied. Regulations defining a “claim” were revised effective March 24, 2015 and apply only to claims and appeals filed after that date. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. The Veteran’s completed application was received on September 12, 2016. The Board finds the Veteran is already in receipt of the earliest possible effective date for the above-noted disabilities. The June 2017 rating decision granting his claims assigned an effective date of September 12, 2016, which the AOJ stated was the date the Veteran filed his claim for benefits. A thorough review of the claims file shows no written communication by either the Veteran or his representative evidencing any intent to seek compensation disability benefits for left upper extremity muscle weakness, left lower extremity muscle weakness, or hoarseness and mild swallowing. Similarly, there is no evidence the Veteran filed a claim seeking compensation for multiple sclerosis prior to this date. As there is no claim of service connection prior to September 12, 2016, the preponderance of the evidence is against the respective claims for entitlement to an earlier effective date. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity muscle weakness is remanded. 2. Entitlement to an initial disability rating in excess of 20 percent for left upper extremity muscle weakness is remanded. 3. Entitlement to an initial compensable disability rating for hoarseness and mild swallowing difficulties is remanded. The Veteran contends that the above service-connected disabilities are more severe than their present evaluations would suggest. The respective disability evaluations are based on findings from a February 2017 VA examination. Unfortunately, neither the conclusory findings from that examination report nor the Veteran’s general assertions are adequate for the Board to properly evaluate the respective claims. On remand, the Veteran should be afforded a new VA examination with more thorough and specific findings of the respective disabilities. 4. Entitlement to service connection for a right shoulder condition is remanded. 5. Entitlement to service connection for a left shoulder condition is remanded. 6. Entitlement to service connection for a back condition is remanded. 7. Entitlement to service connection for a right foot condition is remanded. The Veteran contends that the above-noted disabilities are secondary to his service-connected multiple sclerosis. In December 2016, he was afforded VA examinations with opinions for the respective issues on appeal. The opinions are inadequate to adjudicate the claims because the examiner did not address the aggravation prong of secondary service connection. As such, remand is needed to obtain addendum opinions on these issues. On remand, the Veteran should also be afforded a new VA examination pursuant to Saunders to clarify whether the Veteran has any diagnosed foot disability and if not, whether any pain alone may constitute disability, even without an identifiable underlying pathology. As these issues are being remanded for further development, the Veteran’s claims folder should also be updated to include all outstanding VA treatment records. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated from June 2018 to the present and associate those documents with the Veteran’s claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left lower extremity muscle weakness, left upper extremity muscle weakness, and hoarseness and mild swallowing difficulties. The examiner should provide a full description of the respective disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. 3. Obtain an addendum opinion from an appropriate VA examiner regarding whether the Veteran’s diagnosed bilateral shoulder strain or lumbosacral strain were caused or aggravated (defined as any increase in disability) by his service-connected multiple sclerosis, which is presently evaluated as a neurogenic bladder disability. A complete rationale must be provided for any opinion offered. 4. After completion of the above, schedule the Veteran for the appropriate examination to ascertain the nature and likely etiology of his claimed right foot disability. Copies of all pertinent records must be made available to the examiner for review in conjunction with the examination. Based on review of the record and interview/examination of the Veteran, the examiner should address the following: (a) Specifically identify any diagnosable pathology associated with the Veteran’s right foot pain. In so doing, the examiner must comment on a notation in the December 2016 VA examination noting there were indications of right foot swelling on use. (b) If there is no diagnosable pathology for the right foot pain, the examiner must determine whether there is any objective evidence of foot pain. If so, does the objectively confirmed foot pain result in functional impairment? Specifically, does any pain impair the Veteran’s ability to function under the ordinary conditions of daily life, including employment? In answering this question, the examiner should ask the Veteran to explain the effect of pain. (c) Is it at least as likely as not (50 percent or greater probability) that any diagnosed foot pathology or identified functional impairment is caused or aggravated (defined as any increase in disability) by his service-connected multiple sclerosis, which is presently evaluated as a neurogenic bladder disability? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. 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.