Citation Nr: 20036062 Decision Date: 05/26/20 Archive Date: 05/26/20 DOCKET NO. 17-43 032 DATE: May 26, 2020 ORDER Entitlement to service connection for a staph infection is denied. Entitlement to service connection for a low back condition is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a staph infection at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that a low back disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a staph infection 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 low back disability 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 Board notes the Veteran filed original claims for service connection for residuals of a staph infection and low back pain strain in October 2014 that were denied in a July 2015 rating decision. The Veteran did not appeal or submit additional evidence within the appeal period of the July 2015 decision. However, in March 2017 and August 2017, the Veteran submitted relevant service treatment records that were not considered in the July 2015 rating decision, but appear to have been in existence at the time the decision was made. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). As these service records appear to have been in existence at that time, the July 2015 decision was not final, and the claims for service connection for residuals of a staph infection and a low back disability will be reconsidered. As an additional matter, the Board notes that the Veteran had active service from May 2, 2002 to April 2, 2009. However, he was notified in a December 2018 correspondence that his period of service from May 2, 2005 through April 2, 2009 is not honorable for VA purposes and is a bar to VA benefits. As such, only the period of service from May 2, 2002 to May 1, 2005 will be considered. 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, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Staph Infection The Veteran contends that he has a current disability of a staph infection that is etiologically related to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (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 of a staph infection and 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, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The May 2017 VA examiner evaluated the Veteran and determined that, while he had septicemia that resulted in staphylococcal infection of the left knee during service, the infection resolved and there is no current evidence of an infection. Further, despite treatment from August 2009 to June 2018, VA and private treatment records do not contain a diagnosis of a current staph infection. The Board notes that there is evidence of residuals of a staph infection. However, these residuals are either already service-connected, or still pending before the AOJ. The May 2017 VA examiner determined that the Veteran’s left knee disability and scars are consequent to a stab wound and secondary cellulitis. However, service connection is already in effect for left knee limitation or motion due to a MRSA infection. Additionally, the issue of service connection for scars is not yet before the Board and is still pending before the AOJ since the April 2019 rating decision deferred a decision. The Veteran has not asserted any other current symptomatology or diagnoses of an active staph infection. Moreover, even if the Veteran believes he has a current diagnosis of a staph infection, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Generally, a claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. See Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). The requirement of a current disability is satisfied if it is diagnosed at the time the claim was filed or during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a current disability, there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The preponderance of the evidence is against the claim because there is no evidence of a staph infection, either currently or at the time the claim was filed. As such, service connection is not warranted. The claim for service connection for a staph infection is denied. Low Back Disability The Veteran contends that he has a current back disability that is etiologically related to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (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, while the Veteran has current symptoms of back pain, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Service treatment records do not contain any complaints or treatment relating to the low back. The earliest documented complaint of back pain occurred after separation from service. In an August 2009 mental health treatment record, the Veteran reported back pain or stiffness. In March 2010, he reported that the onset of his back pain was gradual, present for a long time, and that he was not sure how or when they started. However, these complaints of symptoms occurred more than 1 year after a period of active service that is honorable for VA purposes. The Veteran has not provided any statements describing the in-service injury or events that he believes caused his back pain. Additionally, he has not provided any statements describing the onset or history of his back pain. The Board notes that the Veteran has not been afforded an examination. However, the Veteran has not provided any statements indicating that his symptoms began in service or describing any events or injuries that may have caused the current disability. As there is no evidence establishing that an event, injury, or disease occurred in service or manifested during an applicable presumptive period for which the claimant qualifies and no evidence indicating that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, a VA examination is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). While the Veteran may believe his low back disability is related service, the Board reiterates that the preponderance of the evidence weighs against finding that an in-service injury, event, or disease occurred, or that a medical nexus between any such event and current disability exists. For these reasons, service connection is not warranted. The claim for service connection for a low back disability is denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.Vang, Department of Veterans Affairs 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.