Citation Nr: 21066479 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 14-40 749 DATE: November 1, 2021 ORDER Service connection for a left leg condition, to include as secondary to service-connected right ankle disability, is denied. REMANDED Service connection for blood abnormalities, to include as secondary to right ankle disability, is remanded. FINDING OF FACT The Veteran's left leg condition has been medically identified as diabetic peripheral neuropathy, which has already been service connected. The Veteran has not had a different left leg disability medically associated with the present claim during the claim period. CONCLUSION OF LAW The criteria for service connection for a left leg condition, other than diabetic peripheral neuropathy, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1983 to November 1991. The Department of Veterans Affairs (VA) is grateful for his service. Service connection for a left leg condition, to include as secondary to service-connected right ankle disability Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Simply put, service connection is not warranted in the absence of proof of current disability. The current disability requirement may be satisfied by the presence of the claimed disability at any time during the claim period. McClain v. Nicholson, 21 Vet. App. 319,321 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim [...] even though the disability resolves prior to the Secretary's adjudication of the claim"). The Board must determine whether the evidence in the record, constitutes "competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability" under new section 5103A(d)(2)(A). See also Caluza v. Brown, 7 Vet. App. 498, 504 (1995) (where determinative issue involves either medical etiology or medical diagnosis, competent medical evidence is required), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Veteran was afforded a VA examination in January 2020 identifying the presence of diabetes mellitus, type II, and diabetic peripheral neuropathy in the lower extremities. Upon VA examination in February 2020, the examiner found that the Veteran's claimed left leg condition was diabetic peripheral neuropathy. Upon VA examination in October 2020, the examiner opined that the Veteran's diabetes mellitus, type II, was causally linked to his service-connected right and left ankle disabilities and bilateral pes planus based on inactivity due to these lower extremities' disabilities with associated pain and limitation of functioning contributing to weight gain and obesity, and the obesity in turn being causally associated with the diabetes mellitus, type II. In January 2020, the Veteran submitted private medical records including a September 2012 private examination report which includes an assessment of non-inflammatory myopathy. However, that private physician based that assessment on the Veteran's self-report of myopathy and the presence of elevated CPK which was not otherwise explained. Subsequently, in a February 2020 VA examination report and an addendum in June 2021, VA examiners explained that the Veteran's chronic elevated CPK was attributable to the Veteran's sickle cell trait based on medical knowledge of these being associated. The chronic elevated CPK was not found by VA examiners to be indicative of myopathy. An electromyography (EMG) report dated in September 2012, also submitted by the Veteran in January 2020, informs that findings were not supportive of the presence of myopathy. While a private medical record included an initial assessment of myopathy based on incomplete evidence, VA examiners, including upon myopathy examination in March 2020, found no myopathy. VA examiners in January 2020, February 2020, March 2020, and October 2020 did identify peripheral neuropathy in the extremities due to diabetes mellitus, and attributed the Veteran's pain-related weakness or limited functioning of the lower extremities to that peripheral neuropathy. Therefore, as to any myopathy, the Board finds that the VA examiners' findings and VA and private tests for myopathy (finding none) are more probative than the September 2012 private clinician's initial assessment of non-inflammatory myopathy, based on the findings of no myopathy being based on more complete and more accurate evidence. Based on these examination findings, by a November 2020 decision the RO granted service connection for diabetes mellitus, type II, and also then granted service connection for peripheral neuropathy in all four extremities. Service connection cannot be granted in the absence of proof of a current disability. To the extent that the Veteran believes that he has a left leg condition other than for which he has been service-connected, he is not competent to provide a diagnosis. The issue is medically complex. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examination reports, which were rendered by medical professionals based on objective medical testing and reliance on accepted medical principles. With the weight of the evidence against a current left leg disability other than diabetic peripheral neuropathy during the claim period, service connection for a left leg condition, other than peripheral neuropathy of the left lower extremity, cannot be granted. Brammer, 3 Vet. App. at 225. To arrive at this determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND Service connection for blood abnormalities, to include as secondary to right ankle disability, is remanded. The Veteran has been diagnosed with sickle cell genetic trait and elevated CP, to include as secondary to right ankle disability. The Veteran's sickle cell trait was noted to have been identified in service in 1984. This has been medically identified including by VA examiners as a genetic abnormality. In February 2020 and an addendum in June 2021, VA examiners explained that elevated CPK is attributable to the Veteran's sickle cell trait based on medical knowledge of these being associated. However, VA examiners have failed to address whether the Veteran has superimposing disability associated with the genetic abnormality or elevated CPK which either developed in service or which is otherwise causally related to service. Accordingly, remand is warranted for an addendum to address this. The matter is REMANDED for the following actions: 1. Obtain an addendum to the February 2020 VA blood abnormalities examination, to address the nature and etiology of any superimposing disability associated with the Veteran's sickle cell genetic abnormality or associated with elevated CPK, including secondary to his right ankle disability. If the requested addendum cannot be obtained, then a new examination should be conducted to address the questions posed. The claims file must be reviewed for the addendum or examination. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. a. For any blood abnormality present during the claim period, to include elevated CPK, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in service or is otherwise causally related to service. b. For any blood abnormality present during the claim period, to include elevated CPK, the examiner should separately opine whether it is at least as likely as not (50 percent or greater probability) that the disability was caused or aggravated (worsened) by the Veteran's service-connected right ankle disability. Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. Separate opinions and rationales are required for causation and aggravation. c. Specifically for the Veteran's sickle cell trait and elevated CPK, address the following: (1) Is it a congenital defect or a congenital disease? (For VA purposes, a defect differs from a disease in that the former is "more or less stationary in nature" while the latter is "capable of improving or deteriorating.") (2) If the Veteran has a congenital defect, was this defect subject to a superimposed disease or injury during service? If the answer is "Yes," please describe the resultant disability. (3) If the Veteran has a congenital disease, did this disease, which was not noted upon entrance into service, clearly and unmistakably (obviously or manifestly) exist prior to the Veteran's entry into active duty service? (4) If the disorder clearly and unmistakably existed prior to service, was it clearly and unmistakably (obviously or manifestly) not aggravated by military service? The examiner must provide a complete rationale (explanation) for all opinions, supported by evidence and medical knowledge. 2. Thereafter, readjudicate the remanded claim. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.