Citation Nr: 21068283 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 14-41 857 DATE: November 9, 2021 ORDER A rating in excess of zero percent for deviated nasal septum, traumatic, status post septoplasty (herein nasal disability) prior to March 29, 2018 is denied. A 10 percent rating for a nasal disability, effective March 29, 2018, is granted. A rating in excess of 10 percent for a nasal disability from March 29, 2018 is denied. Service connection for right hand strain is granted. Service connection for a left elbow disability manifested by pain is granted. Service connection for a right elbow disability manifested by pain is granted. Service connection for scoliosis is denied. FINDINGS OF FACT 1. Prior to March 29, 2018, the Veteran's nasal disability picture did not more nearly approximate 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. 2. From March 29, 2018, but not earlier, the Veteran's nasal disability was manifested by 50-percent obstruction of the nasal passage on both sides and complete obstruction on one side. 3. The Veteran's right hand strain is related to his active service. 4. The Veteran's left elbow disability is related to his active service. 5. The Veteran's right elbow disability is related to his active service. 6. During (or recent to) the appeal period, the Veteran has not had scoliosis. CONCLUSIONS OF LAW 1. Prior to March 29, 2018, the criteria for a rating in excess of zero percent for a nasal disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6502. 2. From March 29, 2018, but not earlier, the criteria for a 10 percent rating, but no higher, for a nasal disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.97, DC 6502. 3. The criteria for service connection for a right hand strain have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a left elbow disability manifested by pain have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a right elbow disability manifested by pain have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for scoliosis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2006 to August 2013. The case is on appeal from a November 2013 rating decision. In March 2018, the Veteran testified at a Board hearing. In August 2018, the Board granted service connection for two claims (left shoulder impingement and temporomandibular joint (TMJ) dysfunction). The Board also remanded the claims noted above. The Board additionally remanded other claims and, when the case was in remand status, the RO granted service connection in an April 2021 rating decision for (1) left hand strain, (2) left knee strain, (3) right knee strain and (4) left hip strain. As the benefits sought for those issues were granted, they are no longer on appeal. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Increased rating for a nasal disability. Procedural History and Legal Criteria Prior to the Veteran's separation from active service in August 2013, he submitted a July 2013 claim of service connection for "Nose Condition (broken nose with septoplasty)." In the November 2013 rating decision on appeal, the RO granted service connection for a nasal disability and assigned a zero percent rating under DC 6502, effective August 21, 2013 (the day after separation from active service). In an April 2021 rating decision, the RO assigned an increased 10 percent rating for the Veteran's nasal disability, effective March 2, 2021. Under DC 6502 ("Septum, nasal, deviation of"), a 10 percent rating is the highest (and only) schedular rating available and is warranted for "[t]raumatic only, [w]ith 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side." 38 C.F.R. § 4.31 states "[i]n every instance where the schedule does not provide a zero percent evaluation for a [DC], a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met." Evidence The Veteran was afforded a VA examination in October 2013 and a Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx Disability Benefits Questionnaire (DBQ) was completed. A diagnosis was noted of deviated nasal septum (traumatic). The DBQ noted that the Veteran had a deviated nasal septum due to trauma. The DBQ also noted that there was not at least 50 percent obstruction of the nasal passage on both sides due to traumatic septal deviation or complete obstruction on one side due to traumatic septal deviation. October 2013 nasal x-rays were noted as normal. It was noted that the Veteran's nose condition did not impact his ability to work. VA treatment records included a September 2014 primary care treatment record, which stated that the Veteran "has chronic nasal obstruction; [status post fracture] with surgical repair." Upon physical examination, it was noted "[n]ares patent, mucosa [within normal limit], no obvious deformity." An assessment was noted of chronic nasal obstruction status post fracture. A May 2016 VA primary care treatment record noted upon physical examination that "[ears, nose, throat] exam [within normal limits]." The Veteran testified at a March 29, 2018 Board hearing. The Veteran's representative asked him if he had 50 percent obstruction of the nasal passages on both sides and the Veteran stated "I believe so. I'm not a doctor, but I have trouble breathing consistently." The representative also asked if the Veteran had any complete blockage of one side and the Veteran stated "I have a majority blockage on the left side." The Veteran also reported using "a nasal spray steroid to help keep that nasal passageway open." He additionally reported being told "that if the Flonase isn't improving that I should reconsider secondary septoplasty." Also, the representative asked how the Veteran's nasal passages affect daily life and the Veteran stated "[i]t affects my ability to sleep properly. It affects my ability to eat in a consistent manner and I often have to take time out of work to go get either prescriptions refilled or get reevaluated for some sort of sinus infection or complications due to that." An April 2018 VA sleep medicine consult note stated "[n]ose is patent in right, septum is severely deviated to the left with reduced flow." In August 2018, the Board remanded this claim for a new VA examination, with the Board stating that "[a]t the Board hearing in March 2018, [the Veteran] indicated that he has a significant blockage of the nasal passage on the left. As there is an indication that the condition is worse since the October 2013 VA examination, a VA examination is warranted with respect to the current severity of" the Veteran's nasal disability. The Veteran was afforded the requested VA examination on March 2, 2021 and a Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx DBQ was completed. A diagnosis was noted of deviated nasal septum, traumatic, status post septoplasty. Under the medical history section, the DBQ noted that the date of onset of the condition was in 2010 and regarding the details of onset that "[d]uring close quarter combat training, medic reset, states due to issues of eating and breathing it was decided to do a septoplasty...and [V]eteran still with breathing issues despite septoplasty." It was noted that the course of the condition since onset was "[p]rogressed/[w]orsened." The DBQ noted that there was at least 50 percent obstruction of the nasal passage on both sides due to traumatic septal deviation and that there was complete obstruction on the left, but not the right, side due to traumatic septal deviation. Other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran's nasal disability were noted of "difficulty breathing out of bilateral nostrils." It was noted that the Veteran's nose condition did not impact his ability to work. It was additionally noted that "there is a worsening of the Veteran's symptoms." Analysis Excess of zero percent prior to March 29, 2018 For the period prior to March 29, 2018, the Board finds that a rating in excess of zero percent is not warranted for the Veteran's nasal disability. As noted above, under DC 6502, the next higher 10 percent rating is warranted for "[t]raumatic only, [w]ith 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side." The evidence of record during the relevant period did not show that the Veteran's nasal disability picture met or approximated these criteria. In this regard, the Veteran was afforded one VA examination during this period and the October 2013 DBQ specifically noted that, while the Veteran had a deviated nasal septum due to trauma, there was not at least 50 percent obstruction of the nasal passage on both sides due to traumatic septal deviation or complete obstruction on one side due to traumatic septal deviation. The other evidence during the appeal period did not otherwise show that these criteria were met. In sum, the Board finds that, prior to March 29, 2018, the Veteran's nasal disability picture did not more nearly approximate 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. As such, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, prior to March 29, 2018, a rating in excess of zero percent for the Veteran's nasal disability is not warranted. Analysis 10 percent as of March 29, 2018 As noted, in an April 2021 rating decision, the RO assigned an increased 10 percent rating for the Veteran's nasal disability, effective March 2, 2021. This assigned effective date was noted as "the date of the VA examination which shows your disability has increased in severity." The rating decision stated that the assigned 10 percent rating was based on "[c]omplete obstruction of the left side." 38 U.S.C. § 5110(b)(3) states that "[t]he effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred." 38 C.F.R. § 3.400(o)(2) states regarding the effective date for an increase in disability compensation that such is the "[e]arliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred." The United States Court of Appeals for Veterans Claims stated in Swain v. McDonald, 27 Vet. App. 219, 224 (2015) that "the effective date for an increased rating, indeed, as well as for an initial rating or for staged ratings, is predicated on when the increase in [disability] can be ascertained." Resolving reasonable doubt in the Veteran's favor, the Board finds that it was factually ascertainable as of the March 29, 2018 Board hearing that an increase in the Veteran's nasal disability occurred. At the Board hearing, the Veteran, essentially, provided testimony indicating that his disability had worsened. In this regard, while the October 2013 DBQ noted that there was not at least 50 percent obstruction of the nasal passage on both sides due to traumatic septal deviation or complete obstruction on one side due to traumatic septal deviation, at the Board hearing the Veteran stated that he "believe[d]" he had 50 percent obstruction of the nasal passages on both sides and that "I have a majority blockage on the left side." The subsequent March 2021 VA examination confirmed that there was at least 50 percent obstruction of the nasal passage on both sides due to traumatic septal deviation and that there was complete obstruction on the left side due to traumatic septal deviation. In review, the Veteran, essentially, reported worsening of his nasal disability at the March 29, 2018 Board hearing and such worsening was validated by the subsequent March 2021 VA examination. The Board accordingly finds, after resolving reasonable doubt in the Veteran's favor, that from March 29, 2018, the Veteran's nasal disability was manifested by 50-percent obstruction of the nasal passage on both sides and complete obstruction on one side. As such, the 10 percent rating is made effective March 29, 2018, the date of the Board hearing. An even earlier date for the 10 percent rating is not warranted because it is not factually ascertainable that an increase in the Veteran's nasal disability occurred prior to March 29, 2018. As noted, a May 2016 VA primary care treatment record noted upon physical examination that "[ears, nose, throat] exam [within normal limits]." While it is possible that the Veteran's nasal disability worsened prior to the March 29, 2018 hearing, an earlier onset of the Veteran's 10 percent level of disability cannot be ascertained based on all the evidence of record and would require speculation. Application of the benefit of the doubt doctrine is not appropriate under these circumstances. See 38 C.F.R. § 3.102 (discussing reasonable doubt as "a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility"). In sum, the Board finds that, from March 29, 2018, but not earlier, the Veteran's nasal disability was manifested by 50-percent obstruction of the nasal passage on both sides and complete obstruction on one side. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, from March 29, 2018, a rating of 10 percent for the Veteran's nasal disability is warranted. Analysis Excess of 10 percent from March 29, 2018 The Board also finds that, for the period from March 29, 2018, a rating in excess of 10 percent is not warranted for the Veteran's nasal disability. As noted above, under DC 6502, a 10 percent rating is the highest schedular rating available. As the Veteran is accordingly in receipt of the highest schedular rating under DC 6502, there is no basis to award a higher rating under this DC. Moreover, the Veteran has been granted service connection for a deviated nasal septum and DC 6502 is titled "Septum, nasal, deviation, of." As such, DC 6502 is the appropriate and required DC to rate the Veteran's service-connected disability. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("a listed condition should be rated under the DC that specifically pertains to it" and "when a condition is specifically listed in the Schedule, it may not be rated by analogy...VA must... apply the DCs that specifically pertain to the listed conditions and determine the appropriate disability rating"). In sum, the Board finds that, from March 29, 2018, the Veteran has been assigned the highest schedular rating available under the required DC. As such, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, from March 29, 2018, a rating in excess of 10 percent for the Veteran's nasal disability is not warranted. Service Connection Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 2. Service connection for a right hand disability. Evidence The Veteran's service treatment records (STRs) included a June 2013 STR (on a Chronological Record of Medical Care form) that stated that the Veteran was "to the clinic for the second part of his Separation [physical exam]" and it was noted that the Veteran reported a medical history of "arthritis in hands." Prior to the Veteran's separation from active service in August 2013, he submitted a July 2013 claim for service connection for "Bilateral Hand Condition (arthritis)." The Veteran was afforded a VA examination in October 2013 and a Hand and Finger Conditions DBQ was completed. It was noted that the Veteran did not now have or has not ever had a hand or finger condition. Under the medical history section, it was stated that the condition began in 2010 and that "[t]he [Veteran] reports hands become tired, stiff, loss of strength and a burning sensation. The [Veteran] is unsure if, to date, the condition has been formally diagnosed" and that "[t]he current symptoms include stiff, loss of strength and a burning sensation." It was noted that there were no abnormal findings shown on imaging studies. The examiner also stated that "[f]or the [Veteran's] claimed condition of right hand condition, there is no diagnosis because there is no pathology to render a diagnosis." Of record are private chiropractor records from S.S., D.C., dated from 2016 to 2017. These records included various complaints of right hand pain. At the March 2018 Board hearing, the Veteran reported as to the nature of his in-service work, stating that "in the service I had to, you know, carry a radio, shoot my weapon, fix things, bandage people up, start IVs, lift, load ammo. I mean hands are kind of pivotal to constantly being used." In August 2018, the Board remanded this claim to afford the Veteran a new VA examination to determine whether he had a right hand disability and, if so, for a direct service connection opinion. The remand directives related to the opinion request referenced whether any identified disorders were related to the Veterans "active service, including the documented [motor vehicle accident (MVA)], fall, or parachute jumps." The Veteran was afforded the requested VA examination in March 2021 and a Hand and Fingers DBQ was completed. A diagnosis was noted of bilateral hand strain, with a date of diagnosis noted of March 2008. Under the medical history section, it was noted that the date of onset was 2008. Regarding the details of onset, it was stated that "Veteran complains of bilateral hand pain which started with injuries related to Physical fitness training starting at boot camp and worsened with regular everyday activities per his military duties especially while in airborne school." The course of the condition since onset was noted as "[s]tayed the same." Current symptoms were noted as "[p]ain and stiffness in hands at rest[] and with usage." The examiner also provided a negative direct service connection opinion, stating: The claimed condition of right hand strain was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness as per my review of STR there was not enough evidence to substantiate a claim of right hand disability while in service. Evidence reviewed supporting claim: All reviewed none substantiated. Per this information the claimed right hand disability diagnosed as right hand strain is less likely than not incurred in or caused by the right hand disability during service. The examiner additionally stated that "[t]he claimed condition of right hand disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service MVA, fall or parachute jumps as there is not enough objective information to link this disability with these events." Analysis Upon review of the March 2021 VA direct service connection opinion, the Board finds that it is not entirely sufficient. As noted, this opinion noted "as per my review of STR there was not enough evidence to substantiate a claim" and also that "there is not enough objective information to link this disability with these events." This language indicated that the examiner seemingly impermissibly ignored lay evidence from the Veteran as to experiencing in-service right hand symptoms, which were reported at the October 2013 and March 2021 VA examinations. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) ("it appears that the medical examiner impermissibly ignored the appellant's lay assertions"). In light of the lack of proper consideration of the Veteran's lay statements, the Board affords the March 2021 VA opinion minimal probative value. On the other hand, the Board affords significantly greater probative value to the Veteran's lay statements. As outlined, the Veteran has provided competent lay evidence that the onset of right hand symptoms occurred during his active service. See 38 C.F.R. § 3.159(a)(2) (defining competent lay evidence). Specifically, the October 2013 Hand and Fingers Conditions DBQ noted his report that the condition began during service (in 2010) and the March 2021 Hand and Fingers DBQ noted his report that the date of onset was during service (in 2008). In addition, the March 2021 DBQ noted regarding the course of the condition since onset as "[s]tayed the same." Overall, the Veteran filed a claim for a right hand disability during his active service, he competently reported the in-service onset of right hand symptoms, a right hand disability was identified during the appeal period and the course of such condition was noted to have stayed the same since onset. In light of such, and resolving reasonable doubt in the Veteran's favor, the Board finds that the most probative evidence of record is sufficient to show that service connection is warranted for the Veteran's right hand strain. In sum, the Board finds that the Veteran's right hand strain is related to his active service. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for a right hand strain is warranted. 3. Service connection for a left elbow disability. 4. Service connection for a right elbow disability. Evidence A December 2007 STR noted the Veteran's complaint of "[left] elbow pain for a few hours," noted that he "did swim a lot yesterday" and included an assessment of "tendonitis elbow." A February 2013 STR noted that the Veteran was "with the chief complaint of left lower arm...pain...had a sudden onset of pain immediately [after] a vehicle rollover on a mission" and noted an assessment of "crush injury left forearm." Prior to the Veteran's separation from active service in August 2013, he submitted a July 2013 claim for service connection for "Bilateral Elbow Tendonitis." The Veteran was afforded a VA Examination in October 2013 and an Elbow and Forearm Conditions DBQ was completed. It was noted that the Veteran did not now have and has not ever had an elbow or forearm condition. Under the medical history section, it was stated that the date of onset of symptoms was 2006 and that "[t]he condition has stayed the same however it affects ability to perform job." It was noted that the Veteran reported flare-ups and that "[t]he [V]eteran describes the impact as inability to straighten arm, hold weight or move it properly." It was noted that imaging studies did not shown arthritis. For both the right and left, the examiner stated that "there is no diagnosis because there is no pathology to render a diagnosis." Of record are private chiropractor records from S.S., D.C., dated from 2016 to 2017. These records included various complaints of left and right elbow pain. For example, an August 2016 note stated that the Veteran "complained of constant dull, aching, tightness and throbbing discomfort in the front of the right elbow. He rated the intensity of discomfort...as a level 6 on a scale of 1 to 10...The discomfort was reported to increase with movement and applied pressure" and that he "complained of constant sharp, dull and tightness discomfort in the front of the left elbow. He rated the intensity of discomfort...as a level 6 on a scale of 1 to 10...The discomfort was reported to increase with movement." A March 2018 VA primary care nursing treatment record noted the Veteran's complaint of left and right elbow pain, with a duration noted of "6 years" and the type of pain noted as "[c]hronic [greater than] 6 months" and "[c]onstant." At the March 2018 Board hearing, the Veteran reported treatment for his elbows of taking medication, using an ice pack and going to physical therapy and a chiropractor. He referenced his in-service parachute jumps and stated "from being in an airborne unit, like I said, when we do our falls we have to like pull part of the parachute down into our chest and then you're using your elbows to kind of block your face a[s] you hit the ground, so they, they take some abuse." Previously in the hearing, he had stated that "[e]ssentially our landing method is called a parachute landing fall so you just do kind of a controlled body roll...so you're, you're fully body impact every time you land." He additionally referenced an in-service vehicle rollover and stated that "[t]hat's kind of the incident of injury for...my left elbow...Pretty much all of the left side injuries were result from that incident and then just been dealing with it since." The Board notes that the August 2018 Board remand essentially accepted the occurrence of the Veteran's in-service parachute jumps and vehicle rollover accident, as the Board stated that "there is supporting evidence with respect to his statements regarding duties as a Ranger, to include numerous parachute jumps" and that "the evidence establishes that the Veteran sustained injuries when the 18-ton Trac vehicle in which he was riding rolled over multiple times during a mission." In August 2018, the Board remanded these claims to afford the Veteran a new VA examination to determine whether he had a left or right elbow disability and, if so, for a direct service connection opinion. The remand directives related to the opinion request also stated that "[i]f no diagnosis is made, it should be determined if there is nevertheless functional impairment." An April 2019 VA treatment record noted that the Veteran "has [history] of chronic...left elbow...pain" and an assessment was noted of "chronic left elbow...pain." The Veteran was afforded a VA examination in March 2021 and an Elbow and Forearm Conditions DBQ was completed. The examiner marked a checkbox that "[t]he Veteran does not have a current diagnosis associated with any claimed condition." The examiner stated under the remarks section that "[t]here are no objective findings on exam to render a diagnosis of an elbow condition." Under the medical history section, the date of onset was noted of 2010. Regarding the details of onset, it was stated "Veteran with bilateral elbow pains which started while he was active duty in the military with lifting heavy equipment." The course of the condition since onset was noted as "[s]tayed the same." Current symptoms were noted as "soreness and pain at the elbow which occurs with repetitive motion and usage." It was noted that the Veteran reported flare-ups of mild severity, that the frequency of such were "at least 3 [times] a week," that the duration was "20 minutes to an hour," that the characteristics were "sharp pains at the elbow with movement," that the precipitating factors were "repetitive usage with holding arms straight or bending" and that the functional impairment during a flare-up was "can't bend elbow with flare ups." It was noted that the Veteran reported having any functional loss or functional impairment of the joint and also that the Veteran complained of painful motion on flexion and extension. The examiner also separately provided various opinions. Regarding a direct service connection opinion, for both the left and right elbows it was separately stated "Negative Opinion[.] There is no current condition/diagnosis therefore a relationship to service cannot be made." Regarding functional impairment of the elbows, it was stated "Negative Opinion[.] There is no current condition/diagnosis therefore a relationship to service cannot be made." Analysis A threshold issue for these claims is whether the Veteran's has left or right elbow disabilities for VA service connection purposes. This must be addressed because the evidence did not show a clear diagnosis of a left or right elbow disability during the appeal period. In this regard, as noted, both the October 2013 and March 2021 Elbow and Forearm Conditions DBQ noted, essentially, that the Veteran did not have a diagnosed left or right elbow disability. The United States Court of Appeals for the Federal Circuit has stated that "'disability' in [38 U.S.C] § 1110 refers to the functional impairment of earning capacity." See Saunders, 886 F.3d at 1363. It was also stated in that case that "pain in the absence of a presently-diagnosed condition can cause functional impairment." It was additionally stated that "to establish a disability, the veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity." In short, Saunders indicated that pain alone may be a disability for VA service connection purposes. The Court subsequently stated that "Saunders is not limited to pain. The definition of 'disability' in section [38 U.S.C. §] 1110 includes any condition that results in 'functional impairment of earning capacity.'" See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 398 (2020). In addition, the Court subsequently stated that "to establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity." See Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). It is not entirely clear what is sufficient to demonstrate functional impairment of earning capacity. In this regard, it was stated in Wait that "the rating schedule may serve as a proxy for determining whether certain manifestations may impair earning capacity" and that "[s]pecifically, where VA has determined by regulation that the average person with certain manifestations would suffer an impairment of earning capacity, that may be relevant and instructive with regard to whether an individual veteran with similar manifestations has functional impairment of earning capacity." It was also stated in Wait that "the Court expresses no opinion as to the type and extent of the evidence required to demonstrate a functional impairment of earning capacity without regard to the rating schedule, including whether affirmative evidence of difficulty working would meet the Saunders requirement." In this case, resolving reasonable doubt in the Veteran's favor, the Board finds that there is sufficient competent evidence specific to the Veteran that tends to show his left and right elbow symptoms rise to a level to affect earning capacity. In making this determination, the Board finds probative the March 2021 Elbow and Forearm Conditions DBQ notation that the Veteran had current symptoms of "pain at the elbow which occurs with repetitive motion and usage" and the notation of the Veteran's report of painful motion on flexion and extension The Board notes that 38 C.F.R. § 4.59 states "[i]t is the intention to recognize actually painful...joints...as entitled to at least the minimum compensable rating for the joint." As such, using the rating schedule as a proxy, the competent evidence of painful elbow motion tends to show that his elbow symptoms rise to a level to affect earning capacity. The Board also finds probative the October 2013 VA Elbow and Forearm Conditions DBQ notation that the condition "affects ability to perform job" and the March 2021 Elbow and Forearm Conditions DBQ notation that the Veteran reported having any functional loss or functional impairment of the joint. The Board additionally finds probative the symptoms, to include during flare-ups, reported by the Veteran, which included "inability to straighten arm, hold weight or move it properly" (the October 2013 DBQ) and "soreness and pain at the elbow which occurs with repetitive motion and usage" (the March 2021 DBQ). A July 2019 Mental Disorders DBQ noted regarding the Veteran's occupation that he "bought a land and started organic farming. He stated that he is very pleased with the decision and the business is going well." Resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran's reported elbow symptoms would, at least in some way, affect his earning capacity while working as a farmer. In review, consistent with Saunders and Wait, the Board finds that there is sufficient competent evidence specific to the Veteran that tends to show his left and right elbow symptoms rise to a level to affect earning capacity and that, therefore, he has left and right elbow disabilities for VA service connection purposes. Turning to the issue of nexus, the Board initially notes that there is no clear medical opinion of record addressing whether the Veteran's elbow disabilities are directly related to his active service. In this regard, as noted, the March 2021 VA examiner stated that "[t]here is no current condition/diagnosis therefore a relationship to service cannot be made." As discussed, the Board has found that the Veteran has bilateral elbow disabilities for VA service connection purposes and accordingly this opinion is afforded minimal probative value. On the other hand, the Board affords significantly greater probative value to the Veteran's lay statements. As outlined, the Veteran has provided competent lay evidence that the onset of left and right elbow symptoms occurred during his active service. Specifically, the October 2013 Elbow and Forearm Conditions DBQ noted his report that the condition began during service (in 2006) and the March 2021 Elbow and Forearm Conditions DBQ noted his report that the date of onset was during service (in 2010). In addition, the October 2013 DBQ noted following the onset of symptoms that "[t]he condition has stayed the same" and the March 2021 DBQ noted regarding the course of the condition since onset as "[s]tayed the same." Overall, the Veteran filed a claim for left and right elbow disabilities during his active service, he competently reported the in-service onset of elbow symptoms, bilateral elbow disabilities for VA service connection purposes were shown by various evidence during the appeal period and the course of such the Veteran's bilateral elbow condition was noted to have stayed the same since onset. In light of such, and resolving reasonable doubt in the Veteran's favor, the Board finds that the most probative evidence of record is sufficient to show that service connection is warranted for the Veteran's left and right elbow disabilities. In sum, the Board finds that the Veteran's left and right elbow disabilities are related to his active service. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for left and right elbow disabilities manifested by pain is warranted. 5. Service connection for scoliosis. Evidence In general, some evidence showed scoliosis and some evidence did not. This included the Veteran's STRs. In this regard, a December 2007 STR included physical findings for the thoracolumbar spine of "[s]coliosis was noted mildly with Tx concavity." A November 19, 2008 STR included physical findings for the thoracolumbar spine of "showed no abnormalities." A November 21, 2008 STR included physical findings for the thoracolumbar spine of "[s]coliosis was noted." A May 2009 STR included a chief complaint of "[b]ack scoliosis," noted physical findings for the lumbosacral spine of "exhibited a normal appearance" and noted an assessment of backache. A private December 2010 chiropractor record included the Veteran's report of previously being under chiropractor care for "mid thoracic scoliosis." A June 4, 2013 physical therapy STR noted "pain in left SI joint." An assessment was noted of scoliosis and it was stated that the Veteran was "with chronic scoliosis contributing to dysfunction of shoulder girdle and pelvis." An x-ray was requested. A subsequent June 27, 2013 STR (on a Chronological Record of Medical Care form) stated that the Veteran was "to the clinic for the second part of his Separation [physical exam]" and included the results of June 6, 2013 spine x-rays. The findings stated "[n]o significant spinal curvature" and an impression was noted of "[n]egative." The STR did not include an assessment related to scoliosis or the back. Prior to the Veteran's separation from active service in August 2013, he submitted a July 2013 claim for service connection for "Scoliosis." The Veteran was afforded a VA examination in October 2013 and a Back (Thoracolumbar Spine) Conditions DBQ was completed by Dr. G.F. Regarding the history for scoliosis, it was stated that "[t]he date of onset of the symptoms is 2009. The [Veteran] states the above condition began with having back issues from airborner status. He went to the chiropractor and got x-rays. He stated scoliosis was an issue. The condition has stayed the same with mid back pain." The only diagnosis noted was lumbosacral strain. It was noted that imaging studies of the thoracolumbar spine had been performed and that there was not arthritis, vertebral fracture or any other significant diagnostic test finding and/or results. October 2013 x-ray results for the thoracic and lumbar spine stated that "[v]ertebrae are normally aligned" and the impressions noted "[n]o abnormality." Of record are private chiropractor records from S.S., D.C., dated from 2016 to 2017. These records included various notations of scoliosis. In this regard, the July 2016 initial note stated "[p]revious treatment for [s]coliosis" and listed a diagnosis of "[t]horacogenic scoliosis, thoracolumbar region." It was also stated "[Veteran] is to bring in x-rays." In the notes thereafter, this same diagnosis was included in the list of diagnoses. The Veteran was afforded another VA examination in November 2016 and a Back (Thoracolumbar Spine) Conditions DBQ was completed by R.G. (no title was provided). The only diagnosis noted was lumbosacral strain. Scoliosis was not noted or discussed. It was also noted that imaging studies of the thoracolumbar spine had been performed and that there was not arthritis, vertebral fracture with loss of 50 percent or more of height or any other significant diagnostic test finding and/or results. A September 2017 VA treatment record, from D.B., Nurse Practitioner, noted upon physical examination "[m]usculoskeletal: [n]o kyphosis or scoliosis normal spinal curvature." At the March 2018 Board hearing, the Veteran stated that he found out he had scoliosis in "about 2010." His representative asked whether he was treated for it and he stated: I just kind of sucked it up and kept on moving because for, for my unit that's something that can get you voluntarily withdrawn for medical purposes and I wanted to be active in my unit so I, I chose to only seek physical therapy for it instead of getting because I think my degrees were so aggressive that they immediately recommended spinal surgery where they wanted to put a couple steel rods along my spine to slowly correct it over time, but that would have precluded me from any sort of airborne activity. He further stated regarding scoliosis that "I constantly deal with it. It's something that I've continually sought treatment for via my chiropractor because she does make lasting results when I, when I've been able to afford her." In August 2018, the Board stated "that another VA examination is warranted for this claim...to determine if in fact the Veteran has scoliosis" and remanded the claim for a VA examination, with a specific remand directive of "[f]irst, the examiner should determine whether the Veteran has scoliosis. If not, it should be explained why this is so." The Veteran was afforded the requested VA examination in March 2021 and a Back (Thoracolumbar Spine) Conditions DBQ was completed by Dr. M.S. The only diagnosis noted was lumbosacral strain. Under the medical history section, a date of onset was noted of 2008 and regarding the details of onset it was stated that "Veteran with low back injuries secondary to rough airborne landing from a parachute - states he was told he had scoliosis. Treated with PT and TENS unit." The examiner cited the previously discussed June 6, 2013 x-rays as showing "[n]o significant spinal curvature" and the examiner stated "no evidence of scoliosis." Under the remarks heading, the examiner stated that "[t]here were no objective clinical findings found on exam and per history of present illness to render a diagnosis of scoliosis. I have reviewed [V]eteran[']s prior Xray completed in 2013 however there were no signs of scoliosis, on exam." With respect to a requested direct service connection opinion regarding scoliosis, the examiner stated "[t]here is no current condition/diagnosis therefore a relationship to service cannot be made." Analysis The threshold issue in this claim is whether the Veteran has had scoliosis during (or recent to) the appeal period. Scoliosis is defined as "an appreciable lateral deviation in the normal straight vertical line of the spine." See Dorland's Illustrated Medical Dictionary 1681 (32nd ed. 2012). According to an UpToDate article, "[r]adiographs are required to confirm the diagnosis of scoliosis." See Llyod A. Hey, MD, MS, Scoliosis in the adult, UpToDate (Oct. 22, 2018), https://www.uptodate.com/contents/scoliosis-in-the-adult. As outlined above, there is competent evidence that noted scoliosis. On the other hand, there is also competent evidence that did not show scoliosis. As to the issue of whether the Veteran has had scoliosis during (or close to) the appeal period, the Board affords more probative value to the evidence that did not show scoliosis. See generally D'Aries v. Peake, 22 Vet. App. 97, 107 (2008) ("The Board is permitted to favor one medical opinion over another provided it gives an adequate statement of its reasons and bases for doing so"). In this regard, the Board finds particularly probative the radiographic evidence during (or close to) the appeal period that did not show scoliosis. This included the findings of June 6, 2013 spine x-rays that stated "[n]o significant spinal curvature" and noted an impression of "[n]egative" and the impression for October 2013 thoracic and lumbar spine x-rays that was "[n]o abnormality." The Board also finds highly probative the three VA examinations conducted over a multi-year period by three separate medical professionals that did identify scoliosis, but rather noted only lumbosacral strain. The Board additionally finds probative that a separate medical professional, in a September 2017 VA treatment record, explicitly stated that there was "[n]o...scoliosis." Overall, the Board finds the most probative evidence of record as to whether the Veteran has had scoliosis during (or close to) the appeal period to be the radiographic evidence (dated in June and October 2013 x-rays) and the evidence from four separate medical professionals that did not identify scoliosis (dated in October 2013, November 2016, September 2017 and March 2021). The Board specifically acknowledges that competent evidence of record dated during, and recent to, the appeal period noted a diagnosis of scoliosis, to include the previously discussed June 4, 2013 STR and private chiropractor records from S.S., D.C., dated from 2016 to 2017. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) ("The Court holds that when the record contains a recent diagnosis of disability 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"); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) ("With regard to the requirement that a claimant have a current disability before service connection may be awarded for that disability, we agree...that this requirement 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"). These records, however, did not appear to be based on radiographic evidence, as x-ray findings were not discussed. In this regard, the June 4, 2013 STR was dated prior to the June 6, 2013 spine x-rays and the July 2016 initial note from S.S., D.C., that listed a diagnosis of scoliosis also stated "[Veteran] is to bring in x-rays." In addition, dated after the June 4, 2013 STR and July 2016 initial chiropractor note diagnosing scoliosis, multiple medical professionals did not identify scoliosis, to include the November 2016 VA Back (Thoracolumbar Spine) Conditions DBQ, the September 2017 VA treatment record and the March 2021 Back (Thoracolumbar Spine) Conditions DBQ discussed above. Overall, while the Board has considered the competent evidence of record during (and recent to) the appeal period that noted a diagnosis of scoliosis, the Board finds this evidence less probative than the previously discussed evidence that did not show scoliosis. The Board also acknowledges the Veteran's lay report at the March 2018 Board hearing of, essentially, having scoliosis. To the extent the Veteran's lay statements can be taken as him diagnosing scoliosis, the Board finds that he is not competent to provide such a diagnosis, as this is a complex medical issue that would require education, training or experience to address. See 38 C.F.R. § 3.159(a)(1), (2) (defining competent medical and competent lay evidence); see generally Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent the Veteran's lay statements can be taken as him reporting a diagnosis of scoliosis told to him by a medical professional, the Veteran is competent to make such a report and the Board has considered such report. The Board, however, finds this report to be less probative as to the issue of whether the Veteran has had scoliosis during (or close to) the appeal period than the other evidence that was discussed above as being found by the Board to be the most probative evidence of record as to this issue. The Board additionally notes that the Veteran has been service-connected for a lumbosacral strain from August 21, 2013 (the day following his separation form service). The relevant rating decisions, dated in November 2013 and January 2017, indicated that the 10 percent rating assigned for this disability was based on reduced range of motion (both forward flexion and combined range of motion of the thoracolumbar spine) and painful motion upon examination. As such, the Veteran has been service-connected, and compensated, for a lumbosacral spine disability and related symptoms, to include reduced range of motion and painful motion, since his separation from active service. In sum, the Board finds that during (or recent to) the appeal period, the Veteran has not had scoliosis. In the absence of a current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the claim, there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for scoliosis is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoopengardner, 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.