Citation Nr: 21068416
Decision Date: 11/10/21	Archive Date: 11/10/21

DOCKET NO. 13-29 284
DATE: November 10, 2021

ORDER

Entitlement to service connection for a left shoulder disability is denied.

REMANDED

Entitlement to service connection for Raynaud's phenomena (claimed as bilateral leg condition, edema, and swelling of the hands, ankles, legs, and feet), to include as secondary to service-connected disability.

FINDING OF FACT

A left shoulder disability is not shown by the record.

CONCLUSION OF LAW

The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1980 to October 1983.

In March 2020 and March 2021, the claims on appeal were remanded for additional development. They have since returned to the Board for the purpose of appellate disposition.

1. Entitlement to service connection for a left shoulder disability

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. With respect to the current appeal, this list includes arthritis. See 38 C.F.R. § 3.309(a).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307.

The Veteran contends that her left shoulder disability is related to in-service injury.

With respect to current disability, the Boards notes that there is a question as to current left shoulder diagnosis. On VA examination in 2010, the Veteran reported symptoms of left shoulder pain, redness, and swelling. There was mild discomfort with movement of the shoulder; however, after X-ray and examination the examiner determined that the left shoulder was normal.

VA treatment records dated from 2016 forward reflect complaint of left shoulder pain and a history of osteoarthritis of both shoulders.

On VA examination in March 2020, the examiner indicated that exam of the left shoulder was normal and there was no pathology of a current chronic left shoulder condition. On VA examination in June 2021, the Veteran underwent physical examination and X-ray, and again no left shoulder disability was diagnosed. The examiner reviewed the previous assessment of osteoarthritis but noted that examination and X-ray findings did not warrant such a diagnosis. 

The Board acknowledges the notations of osteoarthritis, but finds those notations outweighed by the other evidence of record documenting no diagnosis of a left shoulder disability. In this regard, the 2021 examiner specifically reviewed the VA treatment records, examined the Veteran, and conducted X-ray studies, which revealed no joint osteoarthritis. By contrast, the notations of osteoarthritis are not accompanied by diagnostic studies.

Further, the Veteran has not alleged, and the evidence does not reflect, that her shoulder condition is productive of functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Although she reports symptoms of pain, numbness, and swelling, symptoms rising to the level of impairment of earning capacity is not indicated. On the 2010, 2020, and 2021 VA examinations of record, no significant effect on occupational or functional impairment of the shoulder was indicated.

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110; see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where, as here, competent medical evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Saunders, supra. As there is no disability with respect to the claim, the Board does not reach the issue of whether the claimed disability is related to service.

As a lay person, the Veteran is competent to report on that which she has personal knowledge, including symptoms, such as shoulder pain, and the Board deems her credible in that regard. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, there is no indication that the condition results in a functional impairment of earning capacity, and otherwise, the symptoms alone do not establish a current disability.

In the absence of a current disability, service connection cannot be established. See Holton, 557 F.3d at 1366 (holding that entitlement to service connection requires, among other things, evidence of a current disability); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (upholding VA's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

REASONS FOR REMAND

1. Entitlement to service connection for Raynaud's phenomena (claimed as bilateral leg condition, edema, and swelling of the hands, ankles, legs, and feet), to include as secondary to service-connected disability

Although the Board regrets the delay, upon review of the claims file, the Board believes that additional development on the remaining claims is warranted.

In the March 2021 remand, the Board instructed that the Veteran be afforded a VA examination to determine the nature and etiology of the claimed Raynaud's phenomena, and address whether it is at least as likely as not that any diagnosed vascular disorderto include Raynaud's phenomenaonset in service or is otherwise related to service.

On VA examination in June 2021, the examiner diagnosed Raynaud's phenomenon and opined that the disorder was less likely than not incurred in or caused by service. 

In a September 2021 informal hearing presentation, the Veteran's representative raised the issue of entitlement to service connection Raynaud's phenomenon on a secondary basis, noting that the Raynaud's phenomenon is a "secondary Raynaud's" and that a Mayo Clinic report indicated that migraine medications can be a cause of secondary Raynaud's. The record reflects that the Veteran is service-connected for migraine headaches.

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Given the foregoing, the Board finds that remand is warranted to obtain an opinion addressing this theory of entitlement, based on full consideration of the Veteran's documented medical history and assertions and supported by clearly-stated rationale. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Barr, 21 Vet. App. at 312  

The matters are REMANDED for the following action:

1. Forward the claims file to an examiner with sufficient expertise for addendum opinion as to the nature and etiology of the claimed Raynaud's phenomena.

All pertinent evidence of record must be made available to and reviewed by the examiner. If additional examination is deemed necessary, one should be provided.

Following a review of the relevant records and lay statements, the examiner must provide an opinion as to whether it is at least as not (50 percent or greater probability) that the disorder was caused or aggravated by a service-connected disorder, to include any medication used to treat a service-disorder.

In providing the requested opinion, the examiner should specifically consider and address the September 2021 Appellate Brief noting that Raynaud's phenomena is "Secondary Raynaud's" caused by an underlying problem, and that migraine medications can be a cause of secondary Raynaud's.

The examiner is also advised that the Veteran is competent to report symptoms and treatment and that her reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. 

The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached

 

 

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. E. Wilkerson, 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.