Citation Nr: 20052930 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 11-32 719 DATE: August 10, 2020 ORDER Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left ankle disorder is denied. Entitlement to service connection for right ankle disorder is denied. Entitlement to service connection for leg cramps is denied. Entitlement to service connection for shin splints is denied. REMANDED Entitlement to an initial rating in excess of 10 percent prior to February 6, 2020, and entitlement to a rating in excess of a 20 percent rating thereafter, for cervical strain is remanded. Entitlement to an initial rating in excess of 10 percent prior to February 6, 2020, and entitlement to a rating in excess of a 20 percent rating thereafter, for lumbosacral strain is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had currently diagnosed disabilities related to the left or right shoulder; the left or right knee; the left or right ankle; leg cramps; or shin splints at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for disabilities related to the left or right shoulder; the left or right knee; the left or right ankle; leg cramps; or shin splints are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2004 to October 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction over the case was subsequently transferred to the VA RO in Montgomery, Alabama. The matters on appeal were previously before the Board in August 2017. The Board remanded the Veteran’s claims for additional evidentiary development. The RO has since substantially complied with the remand directives and the Veteran’s claims are now again before the Board. In April 2020, the RO issued a rating decision and increased the evaluations for the Veteran’s both the service-connected cervical strain and lumbosacral strain to 20 percent, effective February 6, 2020. The Veteran has not submitted any statement suggesting this increase satisfies this appeal and the ratings assigned do not represent the maximum ratings allowable for either disability. These issues, therefore, remain before the Board. A.B. v. Brown, 6 Vet. App. 35 (1993). Service Connection Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such service as shown by the service record, the official history of each organization in which the Veteran served, his or her treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran contends that he currently suffers from bilateral shoulder, knee, and ankle disabilities, as well as leg cramps and shin splints, and he has attributed each of these conditions to his military service. A review of the Veteran’s post-service outpatient treatment records does not reveal any complaints, treatment or diagnoses of any bilateral shoulder, knee, and ankle disabilities; leg cramps; or shin splints since leaving military service. As noted in the Board’s prior remand, the has indicated that he sought treatment from private medical providers (Dr. M. and the Princeton Medical Center). The Board’s prior remand of these claims allowed for the Veteran to provide authorization in order for VA to assist him in obtaining these potentially relevant records. However, despite numerous requests by the RO from 2017 to 2020, the Veteran failed to respond and provide authorization to obtain such records and he did not provide copies of the records themselves. Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). As the Veteran in this case has not responded to the various requests for authorization for VA to assist him in obtaining the private treatment records, the Board must proceed in adjudicating these claims with the evidence of record, which show no treatment for the claimed conditions. The threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability, in this matter a diagnosis of bilateral shoulder, knee, and ankle disabilities; leg cramps; and shin splints, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the totality of the competent evidence does not reflect that the Veteran has or has had a diagnosis of bilateral shoulder, knee, and ankle disabilities; leg cramps; and shin splints during the relevant period on appeal. A review of current medical evidence since the filing of the Veteran’s claims does not show any relevant current diagnosis for any of the aforementioned claimed disabilities. The Board indeed recognizes the Veteran’s competence to testify as to a condition within his knowledge and personal observation. Barr v. Nicholson, 21 Vet. App. 303, 308-310 (2007). However, the record does not show the Veteran has any actual specialized knowledge of medicine in general. In this regard, he is not competent to diagnose such disability, as it requires specialized medical knowledge and specific testing. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As such, the Veteran’s statements to the effect that he has a current diagnosis of bilateral shoulder, knee, and ankle disabilities; leg cramps; and shin splints are lacking in probative value. Finally, the Board has considered whether a VA examination is required with regard to the claims on appeal under VA’s duty-to-assist provisions. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (c)(4) (2019); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The evidence of record is such that the duty to obtain a medical examination is not triggered with regard to these claims. As noted above, there is no evidence of post-service treatment for any of the claimed disorders. As to in-service incurrence, a review of the Veteran’s service treatment records is negative for any showing of complaints, treatment, or diagnoses of bilateral shoulder, knee, and ankle disabilities or leg cramps. The service treatment records do show in-service indications of shin splints in November 2004 and October 2005. The Veteran’s 2006 exit physical examination, however, did not reveal any shin splints or stress fractures at service discharge. Moreover, despite the in-service indication of shin splints, the post-service records lack any indication of the presence of shin splints. The Board finds remand for VA examinations related to the claims on appeal is not warranted. In sum, the most probative evidence of record reflects that the Veteran lacks a diagnosis of bilateral shoulder, knee, and ankle disabilities; leg cramps; and shin splints at any time during the period on appeal. Without the required diagnosis, there is no current disability to attribute to the Veteran’s military service. Brammer, 3 Vet. App. at 223. Accordingly, service connection for bilateral shoulder, knee, and ankle disabilities; leg cramps; and shin splints is denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REASONS FOR REMAND A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. at 271. Here, the Board previously remanded the Veteran’s cervical strain and lumbosacral strain claims to provide new VA examinations that were in compliance with the United States Court of Appeals for Veterans Claims (Court) decision in Correia v. McDonald, 28 Vet. App. 158 (2016). It was further noted that the examination forms used in the administration of the most recent VA spine examinations appeared to have used a format that did not contain any discussion of these presentations as appear to have been contemplated by the holding in Correia. In Correia, the Court found that the final sentence of 38 C.F.R. § 4.59 creates a requirement for certain range of motion testing to be conducted whenever possible in cases of joint disabilities. The final sentence of § 4.59 indicates “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found that, in order to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. In February 2020, the RO provided the Veteran with VA cervical and lumbar spine examinations; however, there was no discussion of range of motion with delineation of active versus passive ranges of motion. Rather, the examiner for both the cervical and lumbosacral spine, provided single values for the various ranges of motion, with no indication as to whether they were passive or active. The examiner did indicate the Veteran’s pain on passive motion of both the cervical and lumbar spine, but it is unclear whether this means the values recorded were passive, active, or both. In any event, if the examiner only took passive ranges of motion, the Veteran’s disability picture is not complete in consideration of the holding in Correia. As such, the Veteran’s claims file should be returned for an addendum opinion regarding Correia compliance. If it is determined that the 2020 VA examinations were not compliant with the holding in Correia, then new examinations should be obtained. The matters are REMANDED for the following action: 1. Return the Veteran’s claims file to the VA examiner who conducted the February 2020 VA spine examinations. If that examiner is no longer available, please forward to an examiner of like skill and qualification. The examiner should discuss whether, at the time of the February 2020 examination, both active and passive range of motion testing was conducted. If so, the examiner should clarify the values that were provided in the February 2020 report. 2. If it is determined that the February 2020 VA examiner did not provide range of motion testing in accordance with Correia, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cervical and lumbar spine disabilities. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. The claims file should be made available to and reviewed by the examiner in conjunction with the examination. All necessary testing should be conducted. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). If the Veteran endorses flare-ups related to his cervical and/or lumbar spine disabilities, 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. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should provide a rationale for any opinion expressed. 3. Once the above actions have been completed, the AOJ must re-adjudicate the issues on appeal. If the benefits sought on appeal remain denied, a supplemental statement of the case must be provided to the Veteran and his representative, and they should be afforded an adequate opportunity to respond. A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.