Citation Nr: 20062467 Decision Date: 09/23/20 Archive Date: 09/23/20 DOCKET NO. 14-35 205A DATE: September 23, 2020 ORDER Entitlement to service connection for osteoporosis is denied. Entitlement to service connection for fibromyalgia is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for left leg stress fracture is denied. Entitlement to service connection for right leg stress fracture is denied. Entitlement to service connection for left foot stress fracture is denied. Entitlement to service connection for right foot stress fracture is denied. REMANDED Entitlement to service connection for a psychiatric disability, including posttraumatic stress disorder, is remanded. INTRODUCTION The Veteran served on active duty from June 1993 to December 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. In July 2018, the Board remanded the Veteran’s claim for additional development. After the issuance of a July 2020 supplemental statement of the case, the appeal has been remitted to the Board for further appellate review. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had osteoporosis at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had fibromyalgia at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence is against finding that a left shoulder disability began during active service, or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that a right shoulder disability began during active service, or is otherwise related to an in-service injury or disease. 5. 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. 6. The preponderance of the evidence of record is against finding that the Veteran has had left leg stress fracture or residuals thereof at any time during or approximate to the pendency of the claim. 7. The preponderance of the evidence of record is against finding that the Veteran has had right leg stress fracture or residuals thereof at any time during or approximate to the pendency of the claim. 8. The preponderance of the evidence of record is against finding that the Veteran has had left foot stress fracture or residuals thereof at any time during or approximate to the pendency of the claim. 9. The preponderance of the evidence of record is against finding that the Veteran has had right foot stress fracture or residuals thereof at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for osteoporosis are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for fibromyalgia are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for right shoulder disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for low back disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for left leg stress fracture are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for right leg stress fracture are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for service connection for left foot stress fracture are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for service connection for right foot stress fracture are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminarily, in the July 2018 remand, the Board directed the RO to undertake efforts to obtain the documentation associated with the Veteran’s application for Social Security Administration (SSA) disability benefits, obtain any relevant records not already associated with the claims file, and provide the Veteran with VA examinations. In May 2019, the RO obtained the Veteran’s SSA documentation and associated them with the claims file. The RO then provided the Veteran with the requested VA examinations in July and August 2019. In January 2020, the RO associated the Veteran’s updated VA treatment records with the claims file. The RO then re-adjudicated the Veteran’s claim, confirming and continuing the denial thereof. After issuing a July 2020 supplemental statement of the case, the Veteran’s appeal was remitted to the Board for further appellate review. Based on the above, the Board finds that the RO substantially complied with the July 2018 remand directives and, thus, a remand to ensure compliance is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Osteoporosis, Fibromyalgia, and Stress Fractures The salient issue presented by these claims is whether the evidence of record includes a current diagnosis of the disabilities. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). In February 2010, the Veteran submitted claims of entitlement to service connection for osteoporosis, fibromyalgia, and stress fractures of her left and right legs and feet. In May 2010, the Veteran underwent a VA examination regarding her stress fractures. The examiner observed that a September 1993 bone scan revealed the presence of Grade II stress fracture in the left mid-tibia posteromedial cortex, as well as stress changes along the femora, the tibiae, and the mid-feet. A repeat bone scan in 1994 was administered, but none since then. The Veteran denied any specific treatment since 1994. After administering a clinical evaluation and obtaining imaging of the Veteran’s legs and feet, the examiner opined that the Veteran’s previous stress fractures had resolved (“resolved feet bone, leg tibia bones no stress fracture found bilateral”). Further, the examiner opined as follows: I reviewed the case file twice…I did not find treatment for Grade II stress fracture before service or after service. These conditions are resolved….There is no evidence of treatment for stress fracture post active duty…I find no basis for support of her current contention. In September 2014, the Veteran testified at the RO as to the onset and course of her symptoms, including pain. The Veteran testified at a Board hearing in March 2018. The Veteran reiterated the onset and course of her symptoms. The Veteran echoed these assertions in an undated letter received by VA in May 2019. As discussed above, the Board remanded the Veteran’s claims in July 2018 for additional development. The Board directed the RO to obtain the Veteran’s SSA records, any relevant evidence not already associated with the claims file, and to provide the Veteran with additional VA examinations. The Veteran’s SSA records and updated VA treatment records did not demonstrate the presence of osteoporosis, fibromyalgia, or stress fractures of her bilateral legs or feet. In July 2019, the Veteran underwent a VA examination with respect to fibromyalgia. The Veteran reported that she had been diagnosed with fibromyalgia sometime between 2008 and 2011. The Veteran mentioned that she had been treated with Soma (a depressant that relaxes muscles) in the past and had tried yoga. The Veteran then specifically denied undergoing a rheumatology evaluation and that she had received a diagnosis of or treatment for fibromyalgia to date. After a clinical evaluation, the examiner determined that there were no findings, signs, or symptoms attributable to fibromyalgia. Ultimately, the examiner opined as follows: VBMS records were reviewed and are silent for diagnosis or treatment of fibromyalgia by rheumatology to date. Further, there is no objective evidence at current examination to support a diagnosis of fibromyalgia. Since there is no objective evidence to support a diagnosis of fibromyalgia, a direct nexus opinion and/or aggravation opinion to Veteran’s active duty military service is not warranted. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Absent competent evidence reflecting the current presence of the claimed disabilities, a basis upon which to establish service connection for osteoporosis, fibromyalgia, and stress fracture of left and right leg and foot has not been presented and the claims must be denied. In making this determination, the Board acknowledges that pain alone is not a disability for which service connection is available. However, pain resulting in functional impairment is considered a disability for service connection purposes. However, administered clinical testing during the May 2010 VA examination revealed no functional impairment as a result of leg and/or foot pain. Thus, the Veteran’s claimed stress fractures cannot be considered a disability. Additionally, the Board acknowledges that the Veteran experienced left and right leg and left and right foot stress fractures during her active duty. However, the preponderance of the evidence is against finding that these stress fractures were present at any point during the pendency of this appeal. The documented existence of a past disability does not constitute sufficient evidence of current disability. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding 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). To the extent that the Veteran asserts that she experiences diagnosable osteoporosis or fibromyalgia, and that she has current disability related to past stress fractures of her left and right legs and left and right feet, the Board finds her assertions as to the presence of lay observable symptoms (for example, pain) are considered competent evidence thereof. However, as a lay person, the Veteran has not shown that she has specialized training sufficient to render diagnoses or attribute symptoms to certain disabilities, especially in the presence of other diagnosis. Accordingly, her opinions on such matters are not competent evidence because such questions require medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Because osteoporosis, fibromyalgia, left leg stress fracture, right leg stress fracture, left foot stress fracture, and right foot stress fracture have not been shown, the preponderance of the evidence is against these service connection claims, the benefit-of-the-doubt rule does not apply, and the claims of entitlement to service connection must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).   Left and Right Shoulder and Low Back The evidence of record includes current diagnoses of left shoulder, right shoulder, and low back disabilities. The salient question presented by these claims is, thus, whether the current disabilities were incurred in or due to the Veteran’s active duty. In May 2010, the Veteran underwent a VA examination regarding her low back. The examiner ultimately determined that the Veteran’s low back was normal. Subsequently evidence demonstrated the presence of lumbar sprain, lumbar herniated nucleus pulposus, and lumbar radiculopathy. Consequently, in the July 2018 remand, the Board found the May 2010 VA examination to be inadequate and, thus, remanded the Veteran’s claim in order to provide her another VA examination. With respect to the Veteran’s left and right shoulder disabilities, she was not provided a VA examination prior to July 2018. While the Veteran submitted evidence of current right and left shoulder disabilities, the evidence associated with the claims file did not include an etiological opinion as to either disability. Thus, the Board remanded these claims in order to provide the Veteran a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). In July 2019, the Veteran underwent a VA examination of her bilateral shoulders, as well as her low back. The examiners reviewed the evidence of record, interviewed the Veteran, and administered clinical testing that re-confirmed the presence of diagnosable disabilities. With respect to the Veteran’s low back, the examiner opined as follows: [Service treatment records] are silent for evaluation or treatment of chronic recurrent low back condition. VBMS records are silent for evaluation or treatment of chronic recurrent low back condition within one year of separation from active duty military service. Post-military treatment records reviewed are notable for evidence of L5 spondylosis and degenerative disc disease of lumbosacral spine per Jan[uary] 2016 MRI of lumbar spine, more than 23 years after separation from active duty military service. The [V]eteran’s present condition most often occurs as a chronic process from ‘wear and tear’ and is also part of the normal aging process. Given the [the service treatment records] are silent for evaluation or treatment of chronic recurrent low back condition in the military service, given that VBMS records are silent for evaluation or treatment for chronic recurrent low back condition within one year of separation from active duty military service, given that the diagnosis of L5 spondylosis and degenerative disc disease of lumbosacral spine was noted more than 23 years after separation from active duty military service, and given that the [V]eteran’s present condition most often occurs as a chronic process from ‘wear and tear’ and is also part of the normal aging process, [the] Veteran’s diagnosed L5 spondylosis and degenerative disc disease of lumbosacral spine is less likely than not (less than 50 percent probability) incurred in or aggravated by the Veteran’s active service, or is otherwise etiologically related to her active service. With respect to the Veteran’s bilateral shoulder disabilities, the examiner opined similarly: [Service treatment records] are silent for evaluation or treatment of chronic recurrent shoulder condition in military service. VBMS records are silent for evaluation or treatment of chronic recurrent bilateral shoulder condition within one year of separation from active duty military service. Post-military treatment records reviewed are notable for Spine & Orthopedics Note dated [January 12, 2008] notable for diagnosis of bursitis and bilateral rotator cuff tendinitis, left greater than right. The [January 12, 2008] treatment documents treatment with bilateral subacromial steroid injections. The diagnosed bilateral rotator cuff tendinitis and bursitis is noted more than 14 years after separation from active duty military service. The [V]eteran’s present condition most often occurs as a chronic process from ‘wear and tear’ and is also part of the normal aging process. Given the [the service treatment records] are silent for evaluation or treatment of chronic recurrent bilateral shoulder condition in the military service, given that VBMS records are silent for evaluation or treatment for chronic recurrent bilateral shoulder condition within one year of separation from active duty military service, given that the bilateral rotator cuff tendinitis and bursitis is noted more than 14 years after separation from active duty military service, and given that the [V]eteran’s present condition most often occurs as a chronic process from ‘wear and tear’ and is also part of the normal aging process, [the] Veteran’s diagnosed bilateral rotator cuff tendinitis and bursitis is less likely than not (less than 50 percent probability) incurred in or aggravated by the Veteran’s active service, or is otherwise etiologically related to her active service. The record did not include other competent evidence demonstrating that the Veteran’s left shoulder, right shoulder, or low back disability was incurred in or due to her active duty. In this, and in other cases, the Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The only competent and probative opinion of record is that of the July 2019 VA examiners, which are negative to the Veteran’s claims. To the extent that the Veteran asserts that her left shoulder, right shoulder, and low back disability were incurred in or due to her active duty, the Board finds her lay assertions as to the presence of lay observable symptoms (for example, pain) are considered competent evidence. However, as a lay person, the Veteran has not shown that she has specialized training sufficient to render etiological opinions, especially in the presence of other possibilities (i.e., aging, post-service motor vehicle accident). Accordingly, her assertions on such matters are not competent evidence because such a question requires medical expertise to determine. See Jandreau, 492 F.3d at 1376-77. As the preponderance of the evidence is against the Veteran’s claims, the benefit-of-the-doubt rule does not apply. Accordingly, service connection for left shoulder, right shoulder, and low back disabilities is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see Gilbert, 1 Vet. App. At 53. REASONS FOR REMAND Pursuant to the July 2018 remand, the Veteran was provided a July 2019 VA examination regarding her claimed psychiatric disability. The purpose of the examination was to obtain an opinion from a VA examiner to whether any present psychiatric disability was incurred in or due to her active duty. However, the July 2019 VA examiner simply analyzed whether the record already included evidence etiologically linking her psychiatric disability to her active duty instead of rendering on opinion. As such, the Board finds that the July 2019 VA examination is insufficient and, thus, a remand is required. The matters are REMANDED for the following action: Obtain a supplemental opinion from the July 2019 VA examiner or, if unavailable, an appropriate substitute. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner is asked to provide an opinion (not simply analyze the evidence already of record) whether each diagnosed psychiatric disability was at least as likely as not (a 50 percent probability or greater) incurred in service or is otherwise etiologically related to her active service, to specifically include as result of an in-service personal assault or as secondary to her now resolved lower extremity stress fractures. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean G. Pflugner, 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.