Citation Nr: 21062936 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-47 957 DATE: October 12, 2021 ORDER Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a bilateral wrist disability is denied. Entitlement to service connection for a bilateral ankle disability is denied. Entitlement to service connection for a left elbow disability is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for diabetes mellitus type II (diabetes), to include as due to exposure to herbicide agents and as due to his back disability is remanded. Entitlement to service connection for bilateral lower extremity radiculopathy is remanded. Entitlement to an increased rating in excess of 10 percent for gastritis is remanded. Entitlement to an increased rating in excess of 10 percent for sinusitis associated with headaches is remanded. Entitlement to compensable rating for hemorrhoids is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have a left shoulder disability that was incurred in or due to his time in service. 2. The Veteran does not have a bilateral wrist disability that was incurred in or due to his time in service. 3. The Veteran does not have a bilateral ankle disability that was incurred in or due to his time in service. 4. The Veteran does not have a left elbow disability that was incurred in or due to his time in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a bilateral wrist disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a bilateral ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for a left elbow disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1972 to April 1992. The Veteran had a hearing before the undersigned Veterans Law Judge in June 2021. A transcript has been associated with the file. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310. In his June 2021 hearing, the Veteran offered a lot of information about how he believed he incurred his conditions while in service. While in service, the Veteran worked with construction equipment and motor transport, both of which involved heavy lifting. Pertaining to his ankles, the Veteran said he ran in boots and he twisted his ankle many times, especially running cobblestones overseas. After service, the Veteran reported still having trouble walking and his ankle just rolling. Since service, the Veteran has had trouble with instability and frequent strains and sprains. Regarding his shoulders, the Veteran said there was no treatment for such in his service treatment records (STRs). But six to seven years after service, he had an x-ray for his right shoulder. The Veteran said he hurt his shoulder in training while in service and he dislocated his shoulder around 1973 and he continued to have trouble with it as he got older, picking things up and reaching overhead. The Veteran went to physical therapy for his right shoulder. The Veteran said he hurt his left shoulder in service doing PT in service and that he would be given ice packs. The Veteran said "it hasn't really bothered [him] much since" but that he got pain sometimes in really bad cold weather. Pertaining to his wrists, the Veteran also noted there was no treatment in his STRs. But approximately seven days after service, he got x-rays on both wrists and he had swelling and joint pain. While in service, the Veteran was a tool sergeant and so he had to work on vehicles and had his hand smashed on a piece of timber. The Veteran said the wear and tear of his service also hurt his wrists doing PT, heavy lifting, operating equipment. The Veteran reported the same wear and tear on his wrists as with ankles and shoulders. Veteran said he currently had pain in his elbows that came and went with the weather. The Veteran had an examination for his bilateral elbow, bilateral wrist, and left ankle conditions in February 2013. The Veteran was also examined for his right shoulder. In this examination, the examiner reported the Veteran did not have any current diagnoses as related to these claimed conditions. The Board has carefully reviewed the Veteran's treatment records and has not found a currently diagnosed left shoulder, bilateral elbow, bilateral wrist, or bilateral ankle disability. However, it is clear from his treatment records that the Veteran has ongoing pain in several of this areas and has sought treatment for such and sometimes takes pain medication. It is important for the Veteran to understand that pain in one joint, or more, at any given time is not always a chronic "disability". The Veteran's STRs show that he was seen once while in service in March 1979 for a right ankle injury. In May 1977, there is one mention of elbow and left shoulder pain. However, there is no further mention of such and the Veteran's STRs do not show treatment or complaint for ongoing left shoulder, bilateral wrists, or bilateral elbows, or a left ankle. In his January 1992 separation examination, the Veteran did report ongoing joint problems, explaining that he had a history of cold weather stiffness. Additionally, as noted above, the Veteran has explained how he injured himself while in service. The U.S. Court of Appeals for the Federal Circuit (Court) found that pain alone can qualify as a disability for VA purposes if it amounts to a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). The Court defined functional impairment as the inability of the body or a part of it "to function under the ordinary conditions of daily life including employment" and found that the term "disability" as used in 38 U.S.C. § § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability." Id. at 1363. However, the Federal Circuit did limit its holding, stating it did not "hold that a Veteran could demonstrate service connection simply by asserting subjective pain...." Id. Accordingly, subjective pain alone will not be enough to establish a current disability, and consideration should be given to the impact, or lack thereof, from the reported pain, focusing on evidence of functional limitation. The Veteran contends that while he does not have official diagnoses of conditions affecting his left shoulder, bilateral wrists, bilateral elbows, and bilateral ankles, that his pain should be considered a disability under Saunders, supra. The Board finds the facts of this appeal are distinguishable from those in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) because nothing in the record shows that the claimed disorders result in functional impairment that affects earning capacity. This is not to say that the Veteran does not suffer from pain due to his joints. This is clear from his records. However, a lot of this pain seems to stem from his back and legs (see e.g. December 2020 treatment record.) The Veteran rarely got treatment for his wrists and ankles, though records do show pain his ankles (see e.g. June 2020 treatment record). Even in the records that do indicate pain in his left shoulder, ankles, wrists, and elbows that is made worse from walking, physical activity, or standing on hard surfaces (see e.g. March 2021 treatment record), these records do not indicate the Veteran the Veteran would be unable to work due to the pain in these areas. While the Veteran reported some functional limitation as noted, the Veteran's record does not indicate that his reports of subjective pain lead to functional impairment that the Veteran is unable to function under the ordinary conditions of daily life including employment as the Veteran is still able to stand, walk, sit, move around, and use his extremities, even with limited range of motions or pain and the record does not indicate the Veteran's ability to work would be limited by his pain. The Board notes the Veteran was not provided examinations as to the current nature and etiology of his claimed conditions by VA since those in February 2013. However, VA need not conduct an examination with respect to the claim on appeal, as information and the evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 76 (2006), VA must provide an examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication 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, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim Simply stated, as discussed separately above, the standards of McLendon are not met in this case as the Veteran is not shown to have a diagnosis of the claimed conditions or that he suffered his conditions while in service and there is no other competent medical evidence suggesting an association to service. Even if the Veteran had diagnoses of his claimed conditions and while he was seen for one instance of elbow and shoulder pain while in service, the Veteran's record does not show that the Veteran's conditions were ongoing or that his current conditions are a result of his service. While the Veteran noted joint pain on his separation examination, no details were given as to which joints to which he was referring. Thus, the Board finds a remand for further examination is not warranted. Regarding the claims above, the Board acknowledges the Veteran's statements that his conditions continue to affect his daily life and still causes symptoms and pain and that his conditions were incurred in or due to his time in service. The Board has also considered the Veteran's statements about his ongoing pain since service and how he believes his conditions were incurred. However, while the Veteran is competent to report the symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his complex medical condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board lends more weight to the examinations, medical records, and objective personnel records on file and has weighed them as discussed above and discussed the relative probative value of each. It is important for the Veteran to understand that the most probative medical evidence of record provides evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that he is entitled to service connection for his conditions and pain. This does not mean that the Veteran's conditions do not cause him problems; clearly, his conditions cause him pain. However, the most probative evidence does not indicate that his pain is related to his time in service. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). REASONS FOR REMAND The Board finds a remand is warranted in the Veteran's claim to service connection for a right shoulder condition. The Veteran previously had an examination for this condition in February 2013. In this examination, the examiner found the Veteran did not have a right shoulder disability and therefore, it was not incurred in or due to his time in service. However, during the pendency of the appeal, the Veteran has been diagnosed with a right shoulder disability (see e.g. March 2020 treatment record.) Therefore, the Board finds another examination is necessary in order to determine whether this disability was incurred in or is due to the Veteran's time in service. The Board also finds a remand is warranted in the Veteran's claim to service connection for a back disability. In his June 2021 hearing, the Veteran said he hurt his back while in service lifting boxes and that he has had trouble with his back ever since and currently wears a back brace. The Veteran said he never hurt his back after service but that it was a continuation of what happened in service. The back injury, and the wear and tear while in service, hurt his back. The Veteran also has been diagnosed a current back disability that led to radiculopathy. The Veteran said his doctor told him his back was causing his radiculopathy. The Veteran said he first hurt his back while in service when he fell. During the pendency of this appeal, the Veteran has been diagnosed with a back disability (see e.g. July 2010 treatment record). His STRs shows he was seen in service for a back injury and on his January 1992 separation examination, the Veteran reported ongoing back trouble. The Veteran has not had an examination to determine the nature and etiology of his back disability. Therefore, a remand is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Lastly, the Veteran said his diabetes was caused by or aggravated by his back disability and his weight gain associated with such. A remand is warranted for the Veteran's claim to service connection for diabetes and service connection for bilateral lower extremity radiculopathy. The Veteran has been diagnosed with diabetes. While the Veteran's STRs and miliary personnel records do not indicate he had a problem with diabetes or that he was exposed to herbicide agents while in service, the Veteran contends that his diabetes may be due to the weight gain caused by his back disability. While his back disability is not yet service-connected, this issue is inextricably intertwined with the Veteran's claim to service connection for his back. Additionally, the Veteran's claim to lower extremity radiculopathy is also intertwined with his claim to a back disability as the Veteran contends this condition is secondary to his back disability. Therefore, this matter must also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, the Veteran has said that his back condition caused his obesity, which, in turn, has caused his diabetes. While obesity alone is not a compensable disability for VA purposes, it can serve as an intermediate step to establish service connection for another condition. Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020). Therefore, a remand is required in order to address this theory of entitlement. The Board finds a remand is also warranted in the Veteran's claims to increased ratings for his gastritis, his hemorrhoids, and his sinusitis associated with headaches. The Veteran last had examinations for these conditions in February 2013. Since that time, the Veteran has said his conditions have worsened and since it has been approximately eight years since his pervious examinations, the Board finds contemporaneous ones are warranted. Snuffer v. Gober, 10 Vet. App. 400, 403(1997). The Veteran had been scheduled for examinations for these conditions but did not appear. However, in his June 2021 hearing, the Veteran said he was not unwilling to appear for examinations and the reason for his previous absence was that he did not receive proper notice of these examinations. The Board finds good cause has been shown and the Veteran should be rescheduled for these examinations. Whether the Veteran is entitled to a TDIU is inextricably intertwined with the other issues being remanded and will therefore also be remanded. Harris, supra. The matters are REMANDED for the following action: 1. The AOJ should obtain the Veteran's outstanding medical records and associate them with the claims file. If possible, the Veteran should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. Send the Veteran the appropriate form to elicit current employment information. 3. Schedule the Veteran for an appropriate examination for his 1) right shoulder disability, his 2) back disability, and his 3) diabetes. For each disability, the examiner should opine as to the following: (a) The examiner should clearly state what diagnoses the Veteran has. If the examiner finds the Veteran does not have a diagnosed disability, s/he must explain medical treatment records showing otherwise. (b) Whether the Veteran's disability was at least as likely as not incurred in and due to his time in service. (c) Whether the Veteran's disability is proximately due to any of his service-connected disabilities. (d) Whether the Veteran's disability is aggravated by any of his service connected disabilities, including his psychiatric disability and the medication he takes for it. NOTE: "Aggravation" does not mean a permanent worsening. Any temporary or incremental worsening is sufficient for a finding of "aggravation." The examiner must account for the Veteran's statements including about what occurred during his time in service and his continuing pain. (e) For the Veteran's diabetes claim, the examiner should also opine as to the following: a. Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's obesity has been caused by any of his service-connected disabilities? b. Is there any medical reason to accept or reject the proposition that had the Veteran not had musculoskeletal disabilities, he would not be obese? c. Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's obesity has been aggravated (increased in severity) by any of his service-connected disabilities? d. If, and only if, the Veteran's obesity is deemed to have been caused or aggravated by his service-connected disabilities, please explain whether it is at least as likely as not the Veteran's obesity proximately caused or aggravated his back disability. 4. Schedule the Veteran for an appropriate examination for his 1) gastritis and his 2) hemorrhoids, and his 3) sinusitis associated with headaches. For each disability, the examiner should opine as to the following: The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to Veteran's disabilities and discuss the effect on any occupational functioning and activities of daily living. (Continued on the next page) The examiner should account for any symptoms reported by the Veteran. 5. After undertaking any other appropriate development deemed necessary, readjudicate the issues on appeal based on the additional evidence of record. If the determinations remain adverse to the Veteran, he and his representative must be provided with a supplemental statement of the case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.