Citation Nr: 21077141 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 19-07 580 DATE: December 28, 2021 ORDER Service connection for a right foot disability is denied. Service connection for bilateral shin splints is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a disability of right foot at any time during or approximate to the pendency of the claim. 2. The Veteran's bilateral shin splints was not shown in service or for many years thereafter, and has not been found to be etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for right foot disability have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303. 2. The criteria for service connection for bilateral shin splints have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from January 1982 to April 1982, and active duty in the Army from September 1, 1999 to September 3, 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by the Agency of Original Jurisdiction (AOJ). In February 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. During the appeal, in a February 2019 rating decision, the AOJ granted service connection for bilateral carpal tunnel syndrome and cervical strain, effective October 22, 2011. The Board finds the AOJ's decision for these issues constitutes a full award of the benefits sought on appeal. Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, the Board has no jurisdiction to review the certified issues, and the claims are no longer in appellate status. Service Connection 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 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Entitlement to service connection for a right foot injury and bilateral shin splints. The Veteran's original claim was filed in October 2011. In a statement of support, the Veteran described "shin splints and foot injury occurred during basic and technical training while performing physical fitness training." See Statements in Support of Claim (VA Form 21-4138) dated June 2012. The claims were denied by a September 2013 rating decision, and again in a final rating decision in January 2015, which is on appeal. Similar testimony was presented during at a DRO hearing where the Veteran reported "she fell while running in 1982 as she was running on a track and knocked down. This resulted in her twisting her ankle and hitting her shoulder. She was placed on light duty, working in the hospital office for about a week. The later motor vehicle accident [in 1999] brought all the pain back with symptoms never completing going away thereafter." See Informal Conference Report dated March 2018. As a preliminary matter, the Board notes that a portion of the Veteran's service treatment records are unavailable for review. The record shows a memorandum finding the original U.S. Air Force service treatment records for period January 26, 1982 to April 20, 1982 are unavailable for review. The records management center indicated all procedures to obtain the records were correctly followed and all efforts exhausted. See September 2013 Memorandum from VA Records Management Center. However, the Veteran's service treatment records and military personnel file from her three days period of active duty in the Army are available. In certain circumstances, there is a heightened duty to assist in the development of the case. However, this heightened duty includes providing a medical examination if review of the evidence of record determines that such examination is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). To that end, the Board notes that no VA examinations have been obtained in relation to the claims on appeal. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor, in particular, is a low threshold. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds no reasonable possibility that a VA examination would aid in substantiating the service connection claims for shin splints and right foot injury. The weight of evidence is against a finding that the claimed condition had its onset during active service or within one year of separation from active service or competent evidence even suggesting that the current "runner's knees" may be associated with service. Moreover, the U.S. Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon, 20 Vet. App. at 81. This standard was not been met in this case. Further, the Board also finds sufficient competent medical evidence of record to make a decision on the claims. The Veteran's available service treatment records are negative for any complaints, treatment, or diagnosis of a disability manifested by a right foot injury or shin splints. Notably, the Veteran's medical examination dated September 1999 documents an injury that was incurred in line of duty. Specifically, the report details an auto accident where she was hit in the passenger side of her civilian vehicle and "received injury to her hands, shoulder, and neck." No reports were made regarding a right foot injury or shin splints. Two days following the motor vehicle accident, the Veteran's service treatment records in September 1999 again document reports of neck, shoulder and right hand pain. There were no reports made by the Veteran for the lower extremities, shin splints or a right foot injury. The Veteran's post-service medical records immediately following her discharge from service are absent for any complaints, findings, or treatment of related to the feet or shin splints. Likewise, records are absent for any residuals or symptoms to suggest a chronic disability. Regarding the claimed right foot injury, the Board finds that service connection is not warranted. In so finding, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the evidence does not indicate that the Veteran has a current diagnosis of a right foot disability or has had at any point during the course of this appeal. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Further, any assertion of a current disability is outweighed by the medical evidence as treatment records consistently showed no right foot injury and no residuals or symptoms reported by the Veteran to suggest a disability. Based on the above, the Board finds the weight of the evidence is against the finding of a present disability for which entitlement for service connection can be established. Accordingly, the claim must be denied. Regarding the claimed shin splints, the Board finds that service connection is not warranted. As detailed above, the Veteran's service treatment records and medical records do not show any complaints, treatment, or diagnosis of shin splints until many years after separation from service. Likewise, post-service medical records do not show any ongoing treatment for shin splints. In fact, the earliest medical notation of shin splints was first diagnosed by a VA examiner in August 2013, approximately 14 years after separation from service. The Veteran was afforded a VA examination in August 2013. After personal examination of the Veteran, the VA examiner opined "it is less likely as not that there is residual from stated shin splints in 1982. Veteran seen many times for other ortho complaints without any further notes regarding shin splints." The examiner added there is "insufficient evidence of any injury to knees or shins while on active duty no chronic leg condition related to active duty found." In conjunction with the examination, X-rays taken of the right tibia and fibula revealed no acute fracture. The findings were "unremarkable radiographic appearance" for both knees but documented arthritic changes. See Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) dated August 2013. The Board acknowledges the favorable medical opinion submitted by the Veteran. In September 2014, the Veteran submitted a DBQ completed by her treating physician, D.L., M.D., reflecting a medical opinion in the remarks. The treating physician indicated, "After review of the veteran's line of duty report and review of continuing medical treatment records from 1999-2014, the current diagnosis of knee pain due to runners knee is related to the veteran's in-service injury." See Knee and Lower Leg Conditions DBQ dated September 2014 completed by treating physician, D.L., M.D., received September 2014. Upon review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for shin splints. In so finding, the Board assigns significant probative value to the August 2013 VA opinion which is based on a comprehensive review of the Veteran's claims file, consideration of lay evidence of record, and provide well-grounded rationale to support the examiner's conclusion. The examiner provides substantial reasoning and explanation as to why the Veteran's current shin splints are not etiologically related to service or the shin splints from 1982. Further, the VA examiner points out that the Veteran did not complain of any residuals related to shin splints while receiving treatment for other ortho complaints. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (The probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion.). Accordingly, the Board assigns more weight to the September 2020 VA contract opinion. In contrast, the Board finds the September 2014 conclusory statement from D.L., M.D., the Veteran's treating physician, carries less probative value as he presents no supporting rationale or clinical data for the conclusory statement. Prejean v. West, 13 Vet. App. 444 (2000). Specifically, the physician provides no discussion that the line of duty examination in 1999 showed no injuries to the lower extremities. Further, he does not explain how a single event in service led to the Veteran's runners knees as service treatment records, post-service treatment records do not document any residual injury due to a motor vehicle accident related to the knees, shin splints, or lower extremity. Moreover, the physician fails to address the conflicting August 2013 VA opinion of record at the time reflecting a diagnosis of shin splints, which was not addressed in the statement. Here, absent a detailed discussion of the Veteran's in-service and post-service history in formulating his conclusion, the Board assigns significantly less probative value to this opinion. Consequently, the Board assigns less probative value to September 2014 DBQ and conclusory statement by D.L., M.D. submitted by the Veteran. As to the Veteran's assertions of sustaining right foot injury and shin splints from service, while competent, are not fully credible and are outweighed by other probative evidence of record. The Veteran's report of onset in 1982 where she sustained injuries from a fall in boot camp and later in 1999 where she experienced continuous pain after the motor vehicle accident are inconsistent with the record. See Statements in Support of Claim (VA Form 21-4138) dated February 2015. Post-service treatment records simply do not document any residual injury of the foot or shin splints from a motor vehicle accident and the record shows an extended period after service without any manifestations of the claimed disability. Specifically, a diagnosis for shin splints was not made until approximately 14 years after separation from service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Further, even by the Veteran's own reports at the time of the motor vehicle accident and line of duty investigation in September 1999, she "received injury to her hands, shoulder, and neck." See service treatment records. Significantly, subsequent treatment records show no reports regarding any right foot injury or pain related to the shins or knees. Therefore, the Board ascribes heightened credibility to the statements made at the time of treatment and finds the Veteran's recent recollections made in connection with his pending claim for VA benefits less probative. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). To the extent that the Veteran claims she has a current foot disability or that her shin splints are related to service, her lay assertions are not considered competent medical evidence. Although she is certainly capable of describing the history in this case and competent to report symptoms which are within the realm of her personal experience, she is not competent to render a medical diagnosis of the claimed foot condition or to independently opine as to the specific etiology of a claimed disability or render a medical nexus of a disability to service or a service-connected disability, as such requires medical expertise and the ability to interpret diagnostic medical testing, including X-ray imaging. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For this purpose, the Veteran's statements have limited probative value and the Board assigns more weight to the medical evidence and VA medical opinion. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a right foot disability and bilateral shin splints. In reaching this conclusion, 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 helpful to this claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Entitlement to TDIU. The Veteran contends that she has been unable to secure or follow substantially gainful occupation due to her service-connected right shoulder strain. The record shows a formal application where the Veteran indicated April 2011 as the date last worked full-time as an Office Automation Technician, and that she worked as a Tax Preparer from January 2014 until April 2016. See VA Form VA 21-8940 received October 2017. Since the submission of her application, the Veteran has been awarded service connection for bilateral carpal tunnel syndrome, rated 20 percent each, and cervical strain, rated at 10 percent. However, she does not meet the required percentage standards set forth in 38 C.F.R. § 4.16 (a). But still may receive a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b). VA's policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations, but the Board is prohibited from assigning a TDIU on this basis in the first instance without ensuring that the claim is referred to VA's Director of Compensation for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). The initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). Therefore, given the low standard for referral set forth in Ray, the evidence reflects that the Veteran has met this standard. The matters are REMANDED for the following action: Refer the case to VA's Director of Compensation for consideration of entitlement to TDIU under the provisions of 38 C.F.R. § 4.16 (b). The Director (or a designee) should issue a memorandum addressing whether TDIU is warranted under 38 C.F.R. § 4.16 (b). The memorandum should clearly provide a summary of the facts and law that were relied upon in making the decision and should include an explanation of the reasons and bases for the decision. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.