Citation Nr: 21066600 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-44 546 DATE: November 1, 2021 ORDER Service connection for a right knee disorder is denied. Service connection for a back disorder is denied. Service connection for frostbite residuals of the hands and feet is denied. Service connection for vertigo is denied. REMANDED A higher (compensable) initial disability rating for residuals of traumatic brain injury (TBI) is remanded. A higher (compensable) initial disability rating for residuals of a fracture of the fourth metacarpal of the right hand (right hand disability) is remanded. FINDINGS OF FACT 1. A right knee disability was noted at service entrance; the preexisting right knee disability, which was noted at service entrance, did not undergo an increase in severity during service beyond its natural progression. 2. The Veteran does not have a current back disability. 3. The Veteran is not currently diagnosed with frostbite residuals of the hands and feet. 4. The Veteran is not currently diagnosed with a disability manifesting in vertigo, other than the service-connected TBI, for which he is already being compensated. CONCLUSIONS OF LAW 1. The preexisting right knee disorder was not aggravated by active service; therefore, the criteria for service connection for a right knee disorder are not met. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.306. 2. The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. The criteria for service connection for frostbite of the hands and feet have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 4. The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.14. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from July 1983 to May 1986. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of 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 of a nexus between the claimed in service disease or injury and the current disability. 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). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1132. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). 1. Service connection for a right knee disorder The Veteran contends that a preexisting right knee disorder was aggravated during service. During the July 2021 Board hearing, the Veteran testified that, although he had a preexisting right knee disability in the form of a right knee medial meniscectomy prior to service enlistment, the right knee was asymptomatic until it was injured again during service when another servicemember hit the Veteran in the right knee with a tanker bar. The Veteran testified that he sought treatment for the right knee during service, that it was wrapped, and that he was advised to ice the knee. After consideration of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against service connection for a right knee disorder. The weight of the lay and medical evidence shows that a preexisting right disorder, which was "noted" at entrance into active service, did not increase in severity during active service. The weight of the evidence shows that the right knee disorder preexisted service, as a right knee abnormality was "noted" prior to service entrance. A March 1983 service enlistment examination report found the Veteran's right knee to be abnormal and that the Veteran had a previously undergone a right knee medial meniscectomy; thus, the presumption of sound condition as it relates to a right knee disorder is not applicable. Because a preexisting right knee disorder was "noted" upon entrance to active service, service connection may be granted only if it is shown that the right knee disorder was aggravated by service, that is, if the preexisting right knee disorder was worsened in severity beyond its natural progression during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Where a disorder is noted on service entrance, 38 U.S.C. § 1153 applies, and the claim is one for aggravation by service. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service (presumption of aggravation), unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. In such claims of preexisting disability, the veteran (the evidence of record) bears the burden of showing that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Only if this burden is met does the burden of proof shift to VA to prove non-aggravation (by clear and unmistakable evidence). The Board next finds that the weight of the lay and medical evidence demonstrates that the preexisting right knee disorder did not increase in severity during active service beyond its natural progression, that is, was not aggravated by service. Service treatment records do not reflect any complaints, symptoms, diagnosis, or treatment of any right knee problems during service. Although the Veteran did not undergo an examination of the right knee at the time of service separation, service personnel records include a July 1986 Authorization for Release of Military and Medical Information form that the Veteran submitted in conjunction with an application for a deputy sheriff position with the Charles County Sheriff's Department. On that form, the Veteran denied any significant illnesses or injuries had occurred during active service. Such evidence does not indicate that there was a worsening of the right knee disorder beyond its natural progression during service. Post-service VA and private treatment records also weigh against a finding of worsening of the preexisting right knee disorder during service as they do not reflect any complaints or treatment for any right knee problems until February 2015, when a February 2015 VA treatment record reflects the Veteran had complained of right knee pain upon establishing care with the VA. The record also does not contain any competent medical opinion to show that the preexisting right knee disorder increased in severity during service beyond its natural progression. For the foregoing reasons, the Board finds that the weight of the evidence demonstrates that the preexisting right knee disorder did not increase in severity during service beyond its natural progression, i.e., it was not aggravated by service; therefore, the criteria for service connection for a right knee disorder, based on aggravation in service, have not been met. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. 2. Service connection for a back disorder 3. Service connection for frostbite of the hands and feet 4. Service connection for vertigo The Veteran contends that service connection for a back disorder, frostbite of the hands and feet, and vertigo are warranted. With regard to the back, during the July 2021 Board hearing, the Veteran testified that during basic training a drill sergeant stood on his lower back while he was doing push-ups, which fractured his spinal vertebrae, causing him to be hospitalized for two weeks. With regard to the claim for frostbite residuals, the Veteran testified that he was stuck in a broken-down tank for three days in the middle of a blizzard while stationed at Fort Carson in Colorado, and the cold weather caused him to suffer hypothermia and frostbite of the hands and feet, for which he was hospitalized for four or five days. With regard to the claim for vertigo, the Veteran testified that he has vertigo, which he believes is associated with the service-connected TBI. After a review of all the lay and medical evidence of record, the Board find that the weight of the evidence demonstrates that the Veteran does not currently have a back disability, frostbite (or residuals of frostbite) of the hands and feet, or a disability manifesting vertigo. VA and private treatment records do not reflect any complaints, symptoms, diagnoses, or treatment for a back disorder. Instead, VA treatment records reflect the Veteran's back was found to be clinically normal upon routine examination, and that he denied any joint and low back pain. See February 2015 VA treatment record; June 2015 VA treatment record. Although a February 2015 VA treatment record contains the Veteran's reports that he had previously taken Valium as needed for back spasms, the VA and private treatment records in the electronic file do not contain any further complaints, symptoms, or treatment for back pain, and do not contain any confirmed diagnosis for any back problems. Additionally, the Veteran was scheduled to undergo a VA examination for the claimed back disorder in May 2018 but did not appear for the examination. Nonetheless, a VA examiner reviewed the Veteran's electronic file and opined that it is less likely than not that any back disorder is etiologically related to service as the Veteran is not currently diagnosed with a back disorder. The May 2018 VA examiner noted that VA treatment records since 2014 do not reflect any treatment for a back condition. Furthermore, service treatment records reflect the Veteran was treated for a back strain in 1983, which was treated and resolved as service treatment records do not contain any further complaints or treatment for back pain. Similarly, VA and private treatment records do not reflect any complaints, symptoms, treatment, or diagnoses for frostbite (including any residuals) of the hands and feet or vertigo. During the July 2021 Board hearing, the Veteran testified that he had been diagnosed with peripheral neuropathy in the hands and feet; however, the VA and private treatment records in the electronic file do not reflect any diagnosis for peripheral neuropathy or any other nerve-related diseases in the hands or feet. Additionally, while the Veteran reported symptoms of dizziness associated with the service-connected TBI during a December 2014 VA examination, as the rating assigned for the service-connected TBI already accounts for subjective symptoms of dizziness, the Veteran is already being compensated for the symptom of dizziness. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). In the absence of a current disability at any time during or immediately prior to the relevant claim period on appeal, the claims for service connection for a back disorder, frostbite of the hands and feet, and vertigo must be denied. See Brammer, 3 Vet. App. 223; McClain, 21 Vet. App. 319 (disability needs to be present at any point during the claim period); Romanowsky, 26 Vet. App. 289 (current disability includes a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits). REASONS FOR REMAND 5. A higher (compensable) initial disability rating for residuals of TBI is remanded. 6. A higher (compensable) initial disability rating for the right hand disability is remanded. The Veteran is currently in receipt of initial noncompensable (0 percent) ratings for the service-connected TBI and right hand disability under 38 C.F.R. § 4.124A, Diagnostic Code 8045 and 38 C.F.R. § 4.71A, Diagnostic Code 5230, respectively. During the July 2021 Board hearing, the Veteran testified to worsening symptoms of TBI residuals and the right-hand disability. Specifically, the Veteran testified that symptoms of TBI residuals now prevent him from showering or driving and that he now experiences attacks of dizziness followed by headaches. Additionally, the Veteran testified to lack of strength and functional ability in the right hand; the Veteran testified that he can no longer hold a cup of coffee with the right hand and can no longer write with the right hand. Because the Veteran testified to specific worsening symptoms of TBI residuals and the right-hand disability, the Board finds that further examination is likely to aid in capturing a fuller and more accurate and more current disability picture. The issues of higher ratings for TBI residuals and right hand disability are REMANDED for the following action: (Continued on the next page) Schedule the appropriate VA examination(s) in order to assist in determining the current level of severity and functional impairment of the service-connected TBI residuals and residuals of a fracture of the fourth metacarpal of the right hand (right hand disability). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.