Citation Nr: 20032091 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 10-04 424A DATE: May 7, 2020 ORDER Entitlement to service connection for a right hand condition is denied. Entitlement to service connection for a right hip condition is denied. Entitlement to service connection for a left hip condition is denied. REMAND Entitlement to service connection for a lumbar spine condition is remanded. Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for an acquired psychiatric condition, to include major depression, panic disorder with agoraphobia, and posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The evidence of record is against finding that the Veteran has had a right hand disability at any time during, or approximate to, the pendency of the claim. 2. The evidence of record is against finding that the Veteran has had a right hip disability at any time during, or approximate to, the pendency of the claim. 3. The evidence of record is against finding that the Veteran has had a left hip disability at any time during, or approximate to, the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hand disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1972 to July 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 Decision Letter by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. A Board hearing was conducted via videoconference with the RO in Albuquerque, New Mexico. A transcript of this hearing is contained within the electronic claims file. See September 17, 2015, Hearing Transcript (Tr.). In an August 2018 decision, the Board denied the claims herein. The Veteran elected to appeal that decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran and the Office of the General Counsel for VA (collectively referred to as “the Parties”) resolved that appeal by way of a Joint Motion for Remand (JMR). For the hips and right hand, the Parties concluded that the Board impermissibly found that no current disability existed without applying the analytical framework of the precedential opinion Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018), from the United States Court of Appeals for the Federal Circuit (Federal Circuit), to a February 12, 2000, statement by the Veteran. The personal statement indicates that the Veteran has had difficulties holding down a job because of his back, hips and joints. See November 26, 2019, JMR at 2. The Board interestingly notes that the February 2000 personal statement referenced in the JMR actually is from February 2008. See February 12, 2008, Correspondence (“Currently I cannot hold a steady job, especially one that put[s] stress on my back, hips and joints. Because of these limitations, my future is not quite secure and I must find alternative methods of income.”). A review of the claims file shows that there is no statement from the Veteran signed or received on February 12, 2000. While that exact quote was not mentioned by the Board, it generally addressed the February 2008 statement. While the Board finds that addressing this particular sentence adds little to the other evidence of record or the Board’s overall previous analysis, it nevertheless will reassess it with the other evidence of record in compliance with the JMR. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). For the purposes of service connection, pain alone, without any underlying pathology or disease process, can constitute a current disability if there is objective evidence that the pain causes functional impairment resulting in a decrease of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Board notes that, for all the orthopedic conditions, the Veteran claims that he fell two stories onto his hands and knees, and, as noted, the Board previously has conceded that this injury took place. Service treatment records (STRs) do not reflect any symptoms of or treatment for any condition of the right hand. In March 1973, the Veteran fell two stories on his left hand and both knees and was referred for evaluation. There is no indication such evaluation ever occurred, nor is there any evidence of any right hand or hip injuries from the fall. The Veteran’s July 1973 separation examination does not note any abnormalities of the right hand or hips. The Veteran underwent a general VA examination in June 2002 in connection with his NSC pension claim. No right hand or hip condition was reported or diagnosed. In a February 2008 statement, the Veteran reported that his current disabilities are the result of the fall he experienced in March 1973 in service. Specifically, he stated that he fell ten feet, off a scaffold to the concrete base, landing on his hands and knees. He felt a sudden jolt from the point of impact to the rest of body, including his neck, back, and hips. He reported that he could not move and was taken to the infirmary where a good part of his body was bandaged. He was placed on medical leave for four days but did not receive x-rays. He stated that his current disabilities and mental stress are the result of this fall. As noted above, the Veteran also asserts that his conditions have made it difficult to work, requiring that he seek alternative methods of earning an income. In a June 2011 statement, the Veteran disputed VA’s use of Social Security Administration (SSA) records, stating that its examiners never check his injuries but check other parts of his body that have nothing to do with his injuries. He further stated that pain from his in-service injuries keeps him from sleeping at night. Indian Health Service records reflect that in May 2014 the Veteran reported bilateral hand pain in the wrist areas. He was not diagnosed with any pathology of the hands or wrists. Entries from June 2014 show that the Veteran reported joint pain in his knees, hips, and arms. He was given an initial diagnosis of unspecified arthralgia, but subsequent August 2015 x-rays showed no abnormalities of the hips. At his September 2015 hearing, the Veteran reported that his physical disabilities on appeal were related to his in-service fall. The Veteran has submitted a May 2017 private medical opinion based on a review of the claims file and a telephone interview. The Veteran reported that in service he fell two stories or 10 feet from scaffolding and landed on his hands and knees, injuring his hips, cervical, lumbar spine, and right hand. He was diagnosed with pain in his right hand and bilateral hips. The physician opined that it was at least as likely as not that the current disabilities developed from his 1973 fall in service. This opinion was based on the rationale that the Veteran denied any prior or subsequent trauma that would explain his reported symptoms. The Board finds that the evidence weighs against finding that a current right hand or bilateral hip disability exists even under the analysis provided by Saunders. The only evidence of these disabilities is the Veteran’s February 2008 statement, a May and June 2014 report of hand/wrist and hip pain, respectively, and the Veteran’s reports as described by the private physician who authored the May 2017 opinion. Despite voluminous medical records in the claims file, there is only a single instance of reported pain in the right hand area and bilateral hips. This vague report of pain led to no diagnosis by his treating physicians or his private examiner, who did not examine him in person. Indeed, the private examiner noted that he is unsure as to the extent of the Veteran’s pain: “so we do not know the actual anatomic source of his symptoms that might be better defined by an MRI.” There is no indication of an underlying pathology or functional impairment beyond subjective pain: i.e. the Veteran’s February 2008 statement, May and June 2014 reports of pain, and subjective complaints report to the private examiner. To qualify as a current disability, however, the Federal Circuit requires objective evidence of pain that rises to the level of functional impairment resulting in a decrease of earning capacity. The evidence shows only subjective complaints and no indication that they cause a decrease in earning capacity. Thus, the Board finds that the first element of service connection has not been established and it need go no further with its analysis. See Saunders, 886 F.3d at 1367–68; Romanowsky, 26 Vet. App. at 293; Brammer, 3 Vet. App. at 225; 38 C.F.R. § 3.303(a). REASONS FOR REMAND With respect to the spinal claims, the Parties noted two errors. First, the Board conceded, in its August 2018 decision, that the Veteran sustained an in-service fall. In a previous March 2016 VA examination and opinion, the examiner stated that the Veteran’s conditions were not related to the Veteran’s “alleged acute episode of back injury in 1973.” Based on this language, it is impossible to tell whether the examiner offered his opinion believing that the Veteran sustained the injury. Second, the examiner based his opinion on the lack of documented spinal problems from separation to service until the 1990s, opining that such a lack of care negated connectivity; however, the examiner failed to explain, in medical terms, why this gap negates connectivity and did not discuss whether the type of fall the Veteran suffered could be related to his current conditions. Thus, remand is required for an adequate opinion. See id at 5–6. For the psychiatric claim, the Parties agreed that the March 2016 VA examination was inadequate and that the Board provided insufficient reasons and bases for denying the claim. The Veteran’s claim originally was filed in June 2008, and the Board found that the Veteran, during the pendency of the claim, was diagnosed with adjustment disorder, anxiety, and depression; yet, the VA examiner stated that there was no current diagnosis and offered not etiology to any of the past diagnoses. Thus, remand is required to secure an adequate opinion. See id. at 3–4. Thus, the Board will order that addendum opinions be obtained. See 38 C.F.R. § 20.904(a). The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Obtain an addendum opinion to the March 2016 VA orthopedic examiner’s opinion. Said opinion shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s lumbar and cervical conditions occurred in, or are the result of, his period of active duty service, to include his March1973 fall? To the extent that the examiner believes that the lack of documented care or treatment for the Veteran’s spinal conditions negates connectivity to service, a thorough rationale and explanation must be provided. 3. Obtain an addendum opinion to the March 2016 VA psychiatric examiner’s opinion. Said opinion shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s previous diagnoses of adjustment disorder, anxiety, and depression occurred in, or are the result of, his period of active duty service? Note: The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner’s opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 4. Conduct any other development deemed necessary and then readjudicate the Veteran’s claims. If any of the claims cannot be granted in full, then issue to the Veteran a Supplemental Statement of the Case. After allowing an appropriate amount of time for response from the Veteran, return the claim(s) to the Board. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or the Court must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, Associate 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.