Citation Nr: 21076166 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-60 729 DATE: December 22, 2021 ORDER Entitlement to service connection for a right leg disability, other than right hip arthritis, right knee arthritis, right ankle arthritis, right foot arthritis, right thigh shrapnel injury, and right thigh scars due to a shrapnel injury, is denied. REMANDED Entitlement to service connection for peripheral vascular disease (PVD) of the left leg (originally claimed as "swelling") is remanded. Entitlement to service connection for bilateral hand arthritis (originally claimed as "joint pain") is remanded. Entitlement to service connection for bilateral wrist arthritis (originally claimed as "joint pain") is remanded. FINDING OF FACT 1. The preponderance of the probative evidence of record does not show the existence of a right leg disability other than right hip arthritis, right knee arthritis, right ankle arthritis, right foot arthritis, and right thigh scars resulting from a shrapnel injury. CONCLUSION OF LAW 1. The criteria for service connection for a right leg disability other than right hip arthritis, right knee arthritis, right ankle arthritis, right foot arthritis, right thigh shrapnel injury, and right thigh scars resulting from a shrapnel injury, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1965 to June 1969. He appealed an October 2014 rating decision by the Agency of Original Jurisdiction (AOJ). In June 2020, the Board remanded the Veteran's service connection claims for a left knee disorder, headache disorder, right leg disability, skin cysts, joint pain, arthritis disorder, and swelling, for additional development. In a November 2020 rating decision, the AOJ granted service connection in pertinent part for a skin cyst, residual scarring of the neck and scalp, left knee degenerative arthritis, and migraine headaches. Additionally, in an October 2021 rating decision, the AOJ granted service connection for right and left shoulder glenohumeral joint osteoarthritis, representing the Veteran's arthritis claim. Those claims have been granted in full and are no longer on appeal. The remaining appeals now before the Board were originally characterized as claims for service connection for a right leg disability, "swelling," and "joint pain." See July 2013 and August 2013 VA Forms 21-526EZ; see also October 2021 Supplemental Statement of the Case. On his January 2015 Notice of Disagreement, the Veteran asserted he should be compensated for joint pain and swelling in his knees, legs, feet, ankles, back, and hips. The Board observes that the Veteran has been awarded service connection for cervical spine arthritis, bilateral shoulder arthritis, lumbar spine arthritis, bilateral hip arthritis, bilateral knee arthritis, bilateral ankle arthritis, and bilateral foot arthritis. See April 2017, September 2019, November 2020, and October 2021 Rating Decisions. With respect to the Veteran's claim for a right leg disability, service connection has been established for right knee arthritis, right hip arthritis, right ankle arthritis, and scars of the right thigh due to a shrapnel injury. Although a November 2016 rating decision denied service connection for a right thigh shrapnel injury on the basis that the condition did not exist, the Veteran did not appeal that denial. The Veteran has not identified a specific right leg condition outside of what has already been awarded. In the absence of more specific guidance from the Veteran and given that he has been awarded compensation for several conditions of the right leg, the Board has recharacterized his claim as one for service connection for a right leg disability, other than right hip arthritis, right knee arthritis, right ankle arthritis, right foot arthritis, right thigh shrapnel injury, and right thigh scars due to a shrapnel injury, and will address the matter accordingly. To the extent that the Veteran seeks compensation for joint pain other than what has been previously awarded, the Board observes that the Veteran has reported arthritis of the hands. See December 2016 correspondence. Additionally, he reported his wrists were injured while he was a prisoner of war, and that he sought compensation for them as part of his claim for joint pain. See May 2019 informal conference report. Moreover, the December 2016 VA examiner noted in the Veteran's reported history that the Veteran had bilateral hand arthritis. See December 2016 back examination report, pg. 2. However, the medical records before the Board do not confirm a diagnosis of arthritis of the hands or wrists, nor has the AOJ undertaken development with respect to these matters. As the hands and wrists represent an outstanding aspect of the Veteran's claim for joint pain, the Board has recharacterized the issue as indicated above. However, additional development is necessary before the Board may decide these claims. As for the swelling claim, a September 2021 examiner observed that the Veteran's report of swelling was a symptom, and that the Veteran's ankles, hips, knees, and feet were already service connected; he added that no additional diagnoses or opinions were warranted. To the extent the Veteran continues to seek compensation for swelling other than the already service-connected disabilities, a September 2021 artery and vein examination report noted a diagnosis of PVD of the left leg. Although the examiner rendered a negative opinion, additional clarification is required as explained below. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). In June 2020, the Board remanded the Veteran's right leg claim to afford the Veteran an examination. Examinations were obtained in October 2020, August 2021, and September 2021. An August 2021 knee and lower leg examination report noted the Veteran's diagnosed right knee arthritis but indicated that there was no evidence the Veteran had a chronic right leg condition. Similarly, a September 2021 artery and vein examination report indicated there was no objective evidence to warrant a diagnosis related to the right lower extremity. The Veteran has reported pain radiating down his right leg. See December 2016 VA back examination report, pg. 3. However, the December 2016 examiner stated that the Veteran did not have objective evidence of right lower extremity radiculopathy. Id. at pp. 9-10, 13. Additionally, an October 2020 peripheral nerves examination found that while the Veteran had left lower extremity radiculopathy, objective testing indicated the absence of radiculopathy in the right leg. The Court of Appeals for Veterans Claims has held that pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability, if it reaches the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this case, although the December 2016 examination report noted the Veteran's description of radiating pain down the right leg, the presence of right leg radiculopathy has been refuted by objective testing as shown by the December 2016 and October 2020 examination reports. The Veteran is competent to report symptoms that he can observe, such as pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he has not indicated, nor does the remaining evidence of record show, that the radiating pain resulted in functional impairment of earning capacity such that it would represent a disability for VA compensation purposes. As such, to the extent the Veteran experiences radiating pain down the right leg, it has not been shown to be a disability. Based on a review of all available evidence, the record does not reflect a right leg disability, other than right hip arthritis, right knee arthritis, right ankle arthritis, right foot arthritis, right thigh shrapnel injury, and right thigh scars due to shrapnel injury. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the claim is denied. REASONS FOR REMAND In June 2020, the Board remanded the Veteran's claims for "joint pain" and "swelling," to afford the Veteran VA examinations. Examinations were performed in October 2020, August 2021, and September 2021. However, for the reasons discussed below, additional development is required. 1. Arthritis of the hands and wrists. As noted above, the Board has recharacterized the Veteran's joint pain claim as claims for service connection for bilateral hand arthritis and bilateral wrist arthritis. The December 2016 examiner noted the Veteran's report of having hand arthritis; however, x-ray evidence of hand arthritis is not of record. The Veteran has reported he sustained injuries while captured as a prisoner of war during service, stating he was tied to a tree from his wrists. See December 2016 correspondence. Additionally, the Veteran's service treatment records (STRs) reflect that he injured his left hand in September 1967 after slamming a hatch on it. VA has not provided the Veteran with an examination or opinion in connection with either claim. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Given the Veteran's reports of symptoms of hand and wrist pain, his circumstances of service, and his assertion of a relationship between his claimed disabilities and service, remand for an examination and opinion is warranted. 2. PVD of the left leg. With respect to PVD, the AOJ afforded the Veteran artery and veins examinations in October 2020 and September 2021. At his October 2020 examination, the Veteran reported his left knee and ankle swelled, and had done so for the past 40 years. The October 2020 examiner did not provide a diagnosis. The September 2021 examiner diagnosed the Veteran with PVD of the left leg and opined that the condition was less likely than not related to service. However, the examiner provided no rationale for that opinion. Moreover, the Veteran's STRs document treatment for ankle swelling in February 1966 and May 1967. Given the examiner did not address these entries in the Veteran's STRs, remand for an additional opinion is warranted. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination to determine the nature and etiology of his claimed bilateral hand and wrist disabilities. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should identify any bilateral hand and wrist disabilities present, to include arthritis. For each disability identified, the examiner should opine whether it is at least as likely as not that the disability had its onset during service or is otherwise related to service, to include injuries the Veteran sustained while a prisoner of war, as well as the September 1967 hand injury documented in his STRs. In rendering any opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. 2. Thereafter, refer the claims file to an appropriately qualified clinician for preparation of a medical opinion regarding the Veteran's left leg PVD. The entire claims file, including a copy of this remand, must be made available to the reviewing clinician, and the clinician should confirm that such records were reviewed. No additional examination of the Veteran is necessary, unless the reviewing clinician determines otherwise. The reviewing clinician is asked to opine whether it is at least as likely as not that the Veteran's left leg PVD had its onset during service or is otherwise related to service, to include the Veteran's reports of and treatment for ankle swelling in February 1966 and May 1967. In rendering any opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. (Continued on the next page) 3. After the above has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.