Citation Nr: 21063392 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-31 924 DATE: October 14, 2021 ORDER Service connection for a right knee disorder is denied. Service connection for a right leg disorder is denied. Service connection for a traumatic brain injury (TBI) is denied. REMANDED Service connection for a lower back disorder is remanded. FINDINGS OF FACT 1. The Veteran does not have a current right knee disability. 2. The Veteran does not have a current right leg disability. 3. The Veteran does not have a current TBI disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 2. The criteria for service connection for a right leg disorder have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 3. The criteria for service connection for a TBI disorder have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 24, 1984 to June 30, 1996. This matter is on appeal from a December 2012 rating decision issued by the Regional Office (RO). The Veteran filed a notice of disagreement in April 2013. A supplemental statement of the case was issued in May 2017. The Veteran filed a substantive appeal in June 2017. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately 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). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See Allen v. Brown, 7 Vet. App. 439 (1995). The Federal Circuit recently held, however, that the term "disability" as used in 38 U.S.C. § 1110 and § 1131 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." Saunders v. Wilkie, 886 F.3d, 1356, 1368 (Fed. Cir. 2018). Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). In claims based on qualifying chronic disability, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Laypersons are competent to report objective non-medical indicators of disability. The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e)(1). The Veteran is a "Persian Gulf veteran" (i.e., had active military service in the Southwest Asian Theater of operations during the Gulf War) as defined by 38 C.F.R. § 3.317. A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders that include IBS and dyspepsia) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317 (a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). 1. Service Connection for a Right Knee Disorder The Veteran contends that she has a current right knee disorder that is related to service. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against finding that the Veteran has a current right knee disability. Upon review of the record, the Veteran has not been diagnosed with a right knee disability. VA medical treatment records do not contain a diagnosis and the Veteran did not submit any private treatment records to the record. While the Veteran worked as a staff nurse in service from 1992 to 1996, she has not even specified a right knee disorder for which she is seeking compensation. The Board also finds that the medical and lay evidence does not show that the reported pain in the right knee causes functional impairment to be considered a disability. No impairment of normal functioning or reduction in earning capacity due to muscle or joint pain in the right knee have been shown at any time during this claim. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that, to establish the presence of a disability, the evidence will need to show that the pain reaches the level of functional impairment of earning capacity). With regard to presumptive service connection for a qualifying chronic disability as a Persian Gulf veteran, the weight of the evidence is against finding that there are objective indications of chronic undiagnosed disability associated with the right knee that either manifested during service or to a degree of 10 percent or more following service. Service treatment records do not contain complaints of or treatment for right knee symptoms. There is no medical documentation in the post-service treatment records notating objective indications of chronic undiagnosed disability. The only probative documents of record are the procedural documents associated with the appeal that contain minimal lay evidence. For these reasons, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for the claimed right knee disorder; therefore, the claim must be denied. 2. Service Connection for a Right Leg Disorder The Veteran contends that she has a current right leg disorder related to service. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against finding that the Veteran has a current right leg disability. VA medical treatment records do not contain a diagnosis and the Veteran did not submit any private treatment records to the record. While the Veteran worked as a staff nurse in service, she has not even specified the right leg diagnosis for which she is seeking compensation. The Board also finds that the medical and lay evidence does not show that the reported pain in the right leg causes functional impairment to be considered a disability. No impairment of normal functioning or reduction in earning capacity due to muscle or joint pain in the right leg have been shown at any time during this claim. See Saunders, 886 F.3d 1356. With regard to presumptive service connection for a qualifying chronic disability as a Persian Gulf veteran, the weight of the evidence is against finding that there are objective indications of chronic undiagnosed disability associated with the right leg that either manifested during service or to a degree of 10 percent or more following service. Service treatment records do not contain complaints of or treatment for right leg symptoms. Again, there is no medical documentation in the post-service treatment records notating objective indications of chronic undiagnosed disability and the only probative documents of record are the procedural documents associated with the appeal that contain minimal lay evidence. For these reasons, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for the claimed right leg disorder; therefore, the claim must be denied. 3. Service Connection for a TBI The Veteran contends that she has a current TBI that is related to service. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against finding that the Veteran has a current TBI disability. Upon review of the record, the Veteran has not been diagnosed with a TBI. There is no indication in the service treatment records that the Veteran experienced an injury that could have resulted in a TBI. VA medical treatment records do not contain a diagnosis and the Veteran did not submit any private treatment records to the record. The Veteran is not competent to diagnose TBI. Medical expertise is required to diagnose TBI because it requires special knowledge of the brain and neurological system and major aspects of TBI could overlap with many other disorders, so would require an ability to differentiate overlapping symptoms; such training is not shown in this case. The Board also finds that the medical and lay evidence does not show that the any pain associated with the claimed TBI causes functional impairment to be considered a disability. No impairment of normal functioning or reduction in earning capacity due to neurological pain in the brain have been shown at any time during this claim. See Saunders. With regard to presumptive service connection for a qualifying chronic disability as a Persian Gulf veteran, the weight of the evidence is against finding that there are objective indications of chronic undiagnosed disability associated with TBI that either manifested during service or to a degree of 10 percent or more following service. Service treatment records do not contain complaints of or treatment for TBI symptoms or a TBI injury. Again, there is no medical documentation in the post-service treatment records notating objective indications of chronic undiagnosed disability and the only probative documents of record are the procedural documents associated with the appeal that contain minimal lay evidence. For these reasons, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for the claimed TBI disorder; therefore, the claim must be denied. REASONS FOR REMAND 4. Service connection for a lower back disorder is remanded. The Veteran generally contends that the current lower back disorder, diagnosed as a lumbosacral strain, is related to the in-service lower back injury in March 1995. The Veteran submitted to a VA examination in April 2017. The Veteran was diagnosed with lumbosacral strain. The VA examiner rendered a negative nexus based on direct service connection. The VA examiner reasoned that the in-service injury was acute only and that there was no evidence of chronicity of care. The Board finds that the April 2017 VA examination opinion is inadequate because it is partially based on an inaccurate factual premise that there was no evidence of chronicity of care. The service treatment records show that the Veteran sought treatment for lower back pain on multiple occasions following a March 1995 injury, specifically seeking treatment on four occasions in March 1995, one occasion in May 1995, two occasions in April 1996, and one occasion in May 1996. The VA examiner's reasoning that there is no chronicity of care is an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise is not probative); as such a remand for a VA examination addendum opinion is warranted to assist in determining service connection for a lower back disorder. The issue of service connection for a back disorder is REMANDED for the following action: Request a VA examiner to provide an addendum opinion based on a review of the evidence that includes the April 2017 VA examination report. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided, including a discussion of the service treatment records in March 1995, May 1995, April 1996, and May 1996. The VA examiner should offer an opinion to answer the following question: Is it at least as likely as not (50 percent probability or greater) that the lower back disorder is related to the in-service fall that occurred in March 1995? J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.