Citation Nr: 20032533 Decision Date: 05/08/20 Archive Date: 05/08/20 DOCKET NO. 18-05 051 DATE: May 8, 2020 ORDER Entitlement to service connection for residuals of a shrapnel wound is denied. Entitlement to service connection for a left knee condition is denied. REMANDED Entitlement to service connection for a right elbow condition is remanded. Entitlement to service connection for a left elbow condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence fails to establish that the Veteran has or had residuals of a shrapnel wound at any time during the pendency of the appeal. 2. The preponderance of the evidence fails to establish that the Veteran has or had a left knee condition at any time during the pendency of the appeal. 3. The preponderance of the evidence fails to establish that the Veteran’s left knee symptoms cause functional impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a shrapnel wound are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 2004 to May 2016. During his period of service, the Veteran earned the Afghanistan Campaign Medal with Campaign Star, Bronze Star Medal (2nd Award), Meritorious Service Medal, Joint Service Commendation Medal, Army Commendation Medal (2nd Award), Army Achievement Medal, Meritorious Unit Commendation, Army Good Conduct Medal (3rd Award), National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on terrorism Service Medal, Iraq Campaign Medal with Campaign Star, Noncommissioned Officer Professional Development ribbon (2nd Award), Army Service Ribbon, NATO Medal, Combat Infantryman Badge, Special Forces Tab, Military Freefall Parachutist Badge, and Parachutist Badge. In February 2019, the Board of Veterans’ Appeals (Board) remanded the issue of entitlement to service connection for cervical spine condition, lumbar spine condition, right shoulder condition, left shoulder condition, right elbow condition, left elbow condition, right knee condition, left knee condition, and residuals of a shrapnel wound for further development. Subsequently, by a September 2019 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for left shoulder strain, right shoulder strain, cervical strain, right knee strain, and thoracolumbar strain; thus, these issues are no longer for appellate consideration. Moreover, the issue of entitlement to service connection for joint pain was remanded in the February 2019 Board decision for issuance of a statement of the case (SOC). It was indicated that the claim of entitlement to service connection for joint pain would not be returned to the Board for appellate consideration unless the Veteran perfected his appeal. As a timely substantive appeal addressing the issue of entitlement to service connection for joint pain subsequent to the issuance of the June 2019 SOC does not appear in the claims file, the Board does not have jurisdiction over that issue and will only consider the issue of entitlement to service connection for residuals of a shrapnel wound, left knee condition, right elbow condition, and left elbow condition. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. 1. Entitlement to service connection for residuals of a shrapnel wound The Veteran contends that he suffers from residuals of a shrapnel wound that are related to his military service. A review of the medical evidence of record fails to establish that the Veteran has been diagnosed with residuals of a shrapnel wound at any time during the appeal period or proximate thereto. The Veteran also appeared for a VA muscle injuries examination in June 2016. The VA examiner indicated that there was no current diagnosis of a muscle injury nor scar associated with a shrapnel injury. The Veteran also appeared for a VA scars/disfigurement examination in June 2016. The Veteran reported a shrapnel wound from the torso down to the left leg; however, the VA examiner indicated that there was no pathology to render a diagnosis. Pursuant to the February 2019 Board remand, the Veteran appeared for a VA scars/disfigurement examination in July 2019. Upon examination, the examiner opined that it was less likely than not that the Veteran’s residuals of a shrapnel wound were incurred in or caused by service as there were no visible scars on examination from his shrapnel injury to render a diagnosis. Accordingly, the Board finds that the evidence does not support a finding that the Veteran has a current diagnosis of residuals of a shrapnel wound throughout the appeals period. See Brammer, supra; McClain, supra; Romanowsky, supra. Without such evidence, service connection for residuals of a shrapnel wound cannot be granted. See Shedden, supra. Accordingly, the first element of Shedden is not met. Although the Board is sympathetic to the Veteran’s claim, the preponderance of the evidence is against the Veteran’s claim of service connection residuals of a shrapnel wound. Accordingly, the claims must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. Entitlement to service connection for a left knee condition The Veteran contends that he suffers from a left knee condition that is related to his military service. A review of the medical evidence of record fails to establish that the Veteran has been diagnosed with a left knee condition at any time during the appeal period or proximate thereto. The Veteran appeared for a VA knee and lower leg conditions examination in May 2016. While the Veteran reported pain, stiffness, swelling, and limited range of motion, the VA examiner indicated that Veteran does not have a current diagnosis for a left knee condition. Pursuant to the February 2019 Board remand, the Veteran appeared for a VA knee and lower leg conditions examination in July 2019. The VA examiner opined that it was less likely than not that the Veteran’s left knee condition was incurred in or caused by service, as there were no findings, signs and or symptoms to support a diagnosis for a left knee condition. Accordingly, the Board finds that the evidence does not support a finding that the Veteran has a current diagnosis of a left knee condition throughout the appeals period. See Brammer, supra; McClain, supra; Romanowsky, supra. Without such evidence, service connection for a left knee condition cannot be granted. See Shedden, supra. Additionally, the Board has specifically considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which clarified that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. The Board acknowledges the Veteran’s statements regarding his left knee symptoms, which have generally included pain, stiffness, swelling, and limited range of motion. However, Saunders does not stand for the proposition that a veteran can demonstrate service connection simply by asserting subjective pain, as the Veteran’s pain must amount to a functional impairment to establish a disability. Saunders, 886 F.3d at 1367. Here, the medical evidence fails to show functional impairment despite the Veteran’s complaints. The objective medical findings demonstrated by the VA examinations of record show normal range of motion and no pain on movement. Therefore, even after considering Saunders, the Board finds that there is no left knee impairment due to pain alone, and service connection for a left knee condition is not warranted. Accordingly, the first element of Shedden is not met. Although the Board is sympathetic to the Veteran’s claim, the preponderance of the evidence is against the Veteran’s claim of service connection for a left knee condition. Accordingly, the claims must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); see also Ortiz, supra. REASONS FOR REMAND 1. Entitlement to service connection for a right elbow condition 2. Entitlement to service connection for a left elbow condition The Veteran most recently appeared for a VA elbow and forearm conditions examination in July 2019, at which time the VA examiner diagnosed bilateral elbow strain. The VA examiner opined that the Veteran’s bilateral elbow disability was less likely than not incurred in or caused by service, as there were no records following service to ascribe service correlation to the current diagnoses without resorting to speculation. The VA examiner further noted the Veteran’s report of a post-service motorcycle accident resulting in a left clavicle fracture. He opined that it was more likely the cause of the Veteran’s current elbow pathology. Unfortunately, the Board finds the July 2019 VA examination is inadequate for adjudication purposes, as the VA examiner appears to base his negative findings on the lack of contemporaneous treatment records, without consideration of the Veteran’s lay statements regarding an in-service injury and continuity of elbow symptomatology since service. However, lack of documentation of continuity of care in itself cannot form the basis for a negative nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, the VA examiner failed to provide sufficient rationale for the conclusions that the Veteran’s bilateral elbow disability was more likely than not caused by a post-service left clavicle fracture. As such, the claims must be remanded in order to obtain an adequate examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with the appropriate medical examiner to determine the nature and etiology of his bilateral elbow disability. The examiner must review pertinent documents in the Veteran’s claims file in conjunction with the examination. This must be noted in the examination report. All tests and studies deemed necessary by the examiner should be performed. After eliciting a detailed history from the Veteran, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s current bilateral elbow disability had its onset in service or is otherwise etiologically related to active service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports regarding current or past symptoms, the examiner must provide a reason for doing so. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Joseph, 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.