Citation Nr: 21002667 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 12-22 332 DATE: January 14, 2021 ORDER Service connection for a right wrist disability, to include carpal tunnel syndrome, is denied. Service connection for a left knee disability, to include as secondary to service-connected bilateral hip and foot disabilities, is denied. Service connection for a right knee disability is denied, to include as secondary to service-connected bilateral hip and foot disabilities, is denied. FINDINGS OF FACT 1. The preponderance of the competent evidence of record is against finding that the Veteran has a current right wrist disability, including carpal tunnel syndrome, which is related to her active duty service. 2. The preponderance of the competent evidence of record is against finding that the Veteran has a current left knee disability, to include as secondary to service-connected bilateral hip and foot disabilities, which is related to her active duty service. 3. The preponderance of the competent evidence of record is against finding that the Veteran has a current right knee disability, to include as secondary to service-connected bilateral hip and foot disabilities, which is related to her active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for right wrist disability, including carpal tunnel syndrome, have not been met. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a left knee disability due to service or service-connected bilateral hip and foot disabilities, have not been met. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for service connection for a right knee disability due to service or service-connected bilateral hip and foot disabilities, have not been met. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2002 to July 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office. The Board remanded the appeal in February 2018 and November 2019 for further development. There here has been substantial compliance with the remand directives. See Stegall v. West,11 Vet. App. 268(1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). In the November 2019 decision, the Board noted that the Veteran’s appeal for entitlement to service connection for carpal tunnel syndrome of the right upper extremity was a claim for any acquired right wrist disability, thus the Board has recharacterized the appeal as an appeal for a right wrist disability, to include carpal tunnel syndrome. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Furthermore, the Board has recharacterized the Veteran’s bilateral knee disabilities to reflect to the Veteran’s claim that she is entitled to service connection for bilateral knee disabilities on a secondary basis. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability that is proximately due to, or aggravated beyond natural progression by, service-connected disease or injury. 38 C.F.R. § 3.310. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Certain chronic diseases, including carpal tunnel syndrome, an organic disease of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Additionally, service connection based on continuity of symptomatology can be established for the chronic diseases specified 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C. §§ 1110 and 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 1. Entitlement to service connection for a right wrist disability, to include carpal tunnel syndrome. The Veteran contends that she is entitled to service connection for carpal tunnel syndrome of the right upper extremity that is directly related to her active service. The Veteran has not submitted evidence indicating why she believes that she has carpal tunnel syndrome as a result of her active service. In the December 2017 Appellant’s brief, the Veteran’s representative stated that it is the Veteran’s contention that she is entitled to service connection for carpal tunnel syndrome due to associated functional impairment. The Board concludes that the Veteran does not have a current diagnosis of a right wrist disability, to include carpal tunnel syndrome, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Without evidence of a right wrist disability, including carpal tunnel syndrome, the Board need not address the other elements of service connection. Pursuant to the Board’s November 2019 Remand instructions, the Veteran was provided with a VA examination for peripheral nerve conditions in February 2020. The VA examiner reviewed the Veteran’s claims file and interviewed and examined the Veteran. The Veteran reported having intermittent pain and weakness as well as dropping things with her right extremity. She denied having any numbness/tingling to the hands or wrists in association with the pain. The Veteran that she is not certain if she was ever formally diagnosed with carpal tunnel syndrome and denied having any Electromyography (EMG) or Nerve Conduction Studies (NCS) testing. The VA examiner concluded that the Veteran did not have a right upper extremity peripheral nerve condition or peripheral neuropathy or carpal tunnel syndrome. The VA examiner noted that the Veteran had mild intermittent right-hand pain that did not impact her ability to work; thus, a lack of functional impairment due to the claimed disability. Moreover, none of the Veteran’s medical records show a right wrist disability or carpal tunnel syndrome. Right wrist pain is not considered a disability for VA compensation purposes if it does not result in functional impairment of earning capacity during the relevant appeals period. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). Here, the Veteran has submitted no competent evidence of any current functional impairment of earning capacity at any time during the appeals period that results from her right wrist pain. The Veteran has not identified existing records for which she desires VA’s assistance to obtain evidence of current functional impairment resulting from right wrist pain. 38 C.F.R. § 3.159. The Board finds no further duty to assist in this regard. As the preponderance of the evidence is against the appeal for entitlement to service connection for right wrist disability, to include carpal tunnel syndrome, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to service connection for a left knee disability, to include as secondary to service-connected bilateral hip and foot disabilities. 3. Entitlement to service connection for a right knee disability to include as secondary to service-connected bilateral hip and foot disabilities. The Veteran contends that she is entitled to service connection for left and right knee disabilities. The Veteran has not submitted evidence indicating why she believes that she has left and right knee disabilities as a result of her active service. In the December 2017 Appellant’s brief, the Veteran’s representative stated that it is the Veteran’s assertion that she is entitled to service connection for left and right knee disabilities due to functional impairment. In the November 2020 Appellant’s brief, the Veteran’s representative asserted that the Veteran should be provided with a medical opinion as to whether it is at least as likely as not that the Veteran’s left and right knee disabilities are proximately due to or aggravated by her service-connected hip and foot disabilities. The question for the Board is whether the Veteran has current left and right knee disabilities that began during service or are at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have current left or right knee disability diagnoses and has not had left or right knee diagnoses at any time during the pendency of the claim or recent to the filing of the claim. Without evidence of a left or right knee disability, the Board need not address the other elements of service connection. The Veteran had a VA General Medical Examination in February 2011. The Veteran reported being limited to 30 minutes of standing due to pain in both knees. She further reported having no limitations walking. Upon examination, the examiner did not find that that Veteran had a left or right knee disability. The Veteran had a VA examination for joints, including the knees, in May 2011. The Veteran reported hip and shoulder problems related to service. The Veteran did not report injuring her left or right knee in service or having any current problems with either her left or right knee. In the summary of joint symptoms, the examiner did not find any left or right hip disabilities or symptoms. The Veteran had a VA examination for knee and lower leg conditions in February 2019. The examiner reviewed the Veteran’s claims file and interviewed and examined the Veteran. The Veteran denied any in-service event, disease or injury to her left or right knee and did not report any symptoms of a left or right knee disability. The examiner stated that there is no active diagnosis of a left or right knee disability and that the examination was normal. In the November 2019 Board remand, the Board noted that the Veteran’s medical record contained diagnoses of bilateral knee arthralgia and that the VA examiner must consider all left and right knee diagnoses during the appeal period, including the knee arthralgia diagnoses. Pursuant to the Board’s November 2019 Remand instructions, the Veteran was provided with a VA examination for knee and lower leg conditions in February 2020. The VA examiner reviewed the Veteran’s claims file and interviewed and examined the Veteran. The Veteran reported having intermittent bilateral knee pain, warmth and swelling about twice a week, lasting about a day, which improves and resolves within a few hours with the use of ibuprofen and ice. The Veteran stated that she was unable to state when her bilateral knee symptoms onset, but that her knees started to bother her after she started having issues with her feet. The examiner stated that there was no pain noted on the examination, to include no evidence of pain on passive range of motion or with weight bearing. The examiner found that there was no functional impact of any knee pain. The examiner found that the Veteran did not have current left or right knee diagnoses or during the appeal period. As instructed, the examiner considered that the record contained diagnoses of left and right knee arthralgia. The examiner stated that the records is negative for evaluation, diagnosis or treatment of knee pain and/or complaints and that the VA treatment records showing knee arthralgia are without associated clinical notations showing left or right knee pain. The Board concurs with the November 2019 VA examiner’s assessment that the evidence does not support a finding that the Veteran has bilateral knee arthralgia diagnoses of record during the appeal period. The first notation of knee arthralgia in the Veteran’s VA treatment records is in the diagnosis section of an October 25, 2011 VA primary care treatment record. On that date, the Veteran did not report having any problems with her left or right knee. The treatment provider assessed that the Veteran had only three musculoskeletal problems, namely plantar fasciitis, bilateral hip pain and bilateral shoulder pain. The treatment provider did not find that the Veteran had left or right knee diagnoses. In a July 26, 2011 VA treatment record referenced by the November 2019 VA examiner, the record shows that the Veteran requested treatment for her injuries, to include plantar fasciitis and bilateral hip pain, but not for left or right knee pain or disability. The assessment and plan section of the July 26, 2011 VA treatment record then shows that the examiner assessed the Veteran as having only two musculoskeletal disabilities, namely plantar fasciitis and bilateral hip pain. An August 25, 2011 VA treatment record reflects that the Veteran was then referred to physical therapy for bilateral hip pain and plantar fasciitis. The Board concludes that a diagnosis of knee arthralgia was incorrectly entered at the Veteran’s primary care visit on October 25, 2011 and subsequently appears in the diagnosis section of the Veteran’s VA treatment records, but that the Veteran does not, in fact, have left or right knee arthralgia diagnoses, or any other left or right knee disability diagnoses. In the September 2019 Appellant’s brief, the Veteran’s representative asserted that the Veteran previously submitted medical evidence showing bilateral knee disabilities for VA purposes, however no such evidence was received, and thus is not of record. To the extent that the Veteran has left and right knee pain, knee pain is not considered a disability for VA compensation purposes if it does not result in functional impairment of earning capacity during the relevant appeals period. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). Here, the Veteran has submitted no competent evidence of any current functional impairment of earning capacity at any time during the appeals period that results from any bilateral knee pain. The Veteran has not identified existing records for which she desires VA’s assistance to obtain evidence of current functional impairment resulting from bilateral knee pain. 38 C.F.R. § 3.159. The Board finds no further duty to assist in this regard. (Continued on the next page)   As the preponderance of the evidence is against the appeal for entitlement to service connection for left and right knee disabilities, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Susan Leary, 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.