Citation Nr: 20056687 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 14-31 945A DATE: August 27, 2020 ORDER Entitlement to service connection for bilateral shin disability is denied. REMANDED Entitlement to service connection for left wrist disability is remanded. Entitlement to service connection for right big toe disability is remanded. FINDING OF FACT The Veteran does not have a shin disability. CONCLUSION OF LAW The criteria for Entitlement to service connection for bilateral shin disability have not been met. 38 U.S.C. §§ 1110, 1117, 1118, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2001 to July 2005. The Veteran and his wife testified at a Central Office hearing before the undersigned Veterans Law Judge in August 2016. A transcript of the hearing is associated with the claims files. In April 2018, the Board remanded several issues. Since then, the Veteran has sought to pursue an appeal for some of those issues under VA’s new appeals modernization system, but not the three issues adjudicated herein. See VA Forms 10182 Notice of Disagreement, received September 30, 2019, October 17, 2019 and March 13, 2020. As discussed in the April 2018 decision, entitlement to a total disability rating for compensation based on unemployability of the individual (TDIU) was raised by the record in conjunction with the Veteran’s increased ratings claims. However, the Veteran did not list entitlement to a TDIU as an issue when he opted into the appeals modernization system for some of his claims, including his increased ratings claims. Nevertheless, as noted in our April 2018 decision, a claim for a TDIU raised by the record is “part and parcel” of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Therefore, the Board considers the claim for a TDIU to be part of the Veteran’s separate appeal under the appeals modernization system. Thus, it will not be addressed below. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For a veteran who had active service in the Southwest Asia theater of operations during the Persian Gulf War (a Persian Gulf veteran), presumptive service connection may be established for a qualifying chronic disability, which specifically includes both an undiagnosed illness and a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms. See 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. 1. Entitlement to service connection for bilateral shin disability The Veteran contends he has a current shin disability that is due to prolonged running on various surfaces in service. 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 or disease. At his hearing, the Veteran testified that his “legs are terrible right now.” See hearing transcript, page 7. Although the Veteran testified about his shins and also his legs generally, his claim is limited to his shins. There is evidence of lower extremity radiculopathy in the record, but this is related to his pending low back claim. Additionally, the Veteran has previously been denied service connection for both knees and fibromyalgia, but did not appeal those claims to the Board. Therefore, the Board will not expand the Veteran’s claim to his legs more generally, as he has had ample opportunity to address non-shin issues, and has either not pursed those opportunities any further or will have the opportunity to pursue radiculopathy if his low back claim is granted. The Veteran testified to not complaining about his shins in service due to concerns about being removed from his special operations unit. See hearing transcript, page 8. Upon examination, his lower extremities were normal at separation. In his separation report of medical history, the Veteran discussed many issues, but made no mention of his shins. A review of the Veteran’s medical records does not reveal any post-service complaint of, or treatment related to, his shins. Furthermore, during an unrelated March 2019 muscle injuries examination, it was noted the Veteran has not ever had an injury to a muscle group of the foot or leg. Moreover, the Veteran’s wife and sister submitted letters focused on his PTSD, but both mentioned other issues he has, e.g. headaches, muscle pain, back pain and knee pain, but neither mentioned an issue with his shins. See statements received August 22, 2016. The Veteran has reported radiation of pain from his back down to his legs and feet. However, as noted above, this would be part of his separately claimed low back disability. Consequently, the Board finds the Veteran’s reports of shin disability to not be credible. While the Veteran believes he has a shin disability, he is not competent to provide a diagnosis in this case. The issue is medically complex. 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, which does not show the Veteran to have a shin disability. Given the lack of a credible evidence of a current shin disability, an examination is not warranted, and service connection must be denied. Lastly, because we conclude that he does not have disability, the same result is reached when considered as a Gulf War case. REASONS FOR REMAND 1. Entitlement to service connection for left wrist disability is remanded. 2. Entitlement to service connection for right big toe disability is remanded. The Board has concluded that the provisions of 38 U.S.C. § 1154(b) are applicable and that potential wrist and toe injuries are potentially consistent with such service. Based upon testimony, the Veteran has argued that there are residuals, potentially rising to the level of disability. Accordingly, a remand is required. Additionally, there may be relevant medical records not contained within the Veteran’s claims file. The Veteran testified to receiving VA treatment for his left wrist, but a review of the medical records in his claims file does not reveal any post-service complaint relating to, or treatment of, his left wrist. The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records, to include treatment of his left wrist. 2. Ask the Veteran to complete a VA Form 21-4142 for providers of treatment of his left wrist and right foot/big toe. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left wrist disability. The examiner must opine whether it is at least as likely as not related to an in-service injury or disease, including as a residual of an claimed wrist injury from a suicide bomber attack. The examiner must review the entire claims file. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: A) Identify the Veteran’s objective indications of a disability. “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran’s objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran’s objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran’s departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran’s specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran’s specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. F) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diagnosed condition was incurred in, or is otherwise related to his active service? A complete rationale must be provided for all opinions expressed. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right big toe disability. The examiner must opine whether it is at least as likely as not related to an in-service injury or disease, including as a residual of an alleged toe injury that occurred while jumping into a concrete bunker. The examiner must review the entire claims file, including a copy of this remand. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, including whether there is a mark on the Veterans’ right big toe, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: A) Identify the Veteran’s objective indications of a disability. “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran’s objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran’s objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran’s departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran’s specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran’s specific case and cannot be based on the pathophysiology of the disease or disability population as a whole.   F) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diagnosed condition was incurred in, or is otherwise related to his active service? A complete rationale must be provided for all opinions expressed. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gregory T. Shannon 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.