Citation Nr: 21077605 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-38 285 DATE: December 30, 2021 ORDER 1. Entitlement to service connection for a left shoulder condition is denied. 2. Entitlement to service connection for pes planus is denied. 3. Entitlement to service connection for a bilateral hip condition is denied. 4. Entitlement to service connection for a back condition is denied. FINDINGS OF FACT 1. The weight of competent and credible evidence is against finding that the Veteran's current left shoulder condition was caused by, or was aggravated by, her military service. 2. The weight of competent and credible evidence indicates that the Veteran's pes planus was noted at entry into service and was not aggravated beyond the regular scope of its progression by her military service. 3. The weight of competent and credible evidence of record is against finding that the Veteran has a currently diagnosed bilateral hip condition. 4. The weight of competent and credible evidence is against finding that the Veteran's back condition was caused by, or was aggravated by, her military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder condition have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2021). 2. The criteria for service connection for a pes planus condition have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2021). 3. The criteria for service connection for a bilateral hip condition have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2021). 4. The criteria for service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty as a commissioned officer in the United States Army from January 1987 to April 1990. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2021. A transcript of the hearing is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Laypersons, such as the Veteran, are competent to report on matters observed or within his or her personal knowledge, to include the occurrence of injury, and as to the nature, onset, and continuity of symptoms experienced or observed. See 38 C.F.R. § 3.159 (a)(2) (2017); Charles v. Principi, 16 Vet. App. 370 (2002). Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board, however, retains the discretion to determine the credibility and probative value of all evidence of record, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for a left shoulder condition The Veteran contends that her left shoulder condition was either caused by, or was aggravated by, carpal tunnel syndrome caused by typing while as an Army staff judge advocate (attorney). The Veteran has not claimed any specific traumatic injury. See Hearing Transcript, p. 3. Service treatment records (STRs) do not show any complaint, treatment or diagnosis of left shoulder injury or pain. A November 1989 separation Report of Medical Examination was normal, and the Veteran denied pain in her shoulder in her separation Report of Medical History. See July 2015 STR-Medical, pp. 71, 74. In June 2015, the Veteran submitted a claim for service connection for a left shoulder condition. There is no evidence of an earlier diagnosis of a left shoulder condition. The only injury regarding the Veteran's shoulder in the record comes in treatment following a February 2020 motor vehicle accident, which has caused pain to radiate from her shoulder. See June 2021 Medical Treatment Record Non Government Facility, p. 73. The first indication of neck pain in the record comes in February 2020 radiographs, in which "prior surgery" was noted. The record did not indicate when the surgery took place. See Medical Treatment Record Non Government Facility, p.8. Finally, the Veteran, post-automobile accident, has been diagnosed with "multilevel degenerative disc disease in the cervical spine." Id at 46. The Veteran has stated that there were no traumatic events while serving in the military but contended that her current left shoulder condition could be due to excessive typing while serving as an attorney in the Army. See August 2021 Hearing Transcript, p. 3. A review of the record does not indicate any complaints, treatment or diagnosis for a typing related injury while in the Army, to include arthritis and carpal tunnel. Likewise, the medical evidence of record does not indicate that the Veteran has incurred any disability in service related to a left shoulder condition. The only evidence indicating that the Veteran's left shoulder condition began in service is her testimony at the August 2021 hearing before the undersigned VLJ. See August 2021 Hearing Transcript, p. 5. This testimony is not supported by the record, as the Veteran denied any shoulder or neck conditions in her separation Report of Medical History, and as the record is silent as to any complaint, treatment or diagnosis of a left shoulder condition until many decades after service, and after the Veteran was in a motor vehicle accident. Given that the Veteran's testimony is at odds with her separation report of medical examination and report of medical history, the Board affords diminished probative value to her lay statements. In this, the Board finds that the silence in treatment records weighs against the claim. Silence in the medical record may be relevant evidence that symptoms were not present if the record would normally have recorded such symptoms, such as in the current claim. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). The Board notes that no VA examination has been provided. A VA examination is warranted when there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; evidence establishing an in-service event, injury, or disease; an indication that the current disability may be associated with the in-service event, injury, or disease; and a lack of sufficient evidence to make a decision on the claim. See 38 U.S.C. § 5103A(d); McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Given that there is insufficient probative evidence of an in-service event or injury, the Board finds that a VA examination is not warranted in this case. Taken as a whole, the only evidence in support of this claim is generalized and conclusory statements asserting that current shoulder pain might be related to typing while in the military. The Board has found these statements to be of diminished probative value. Given the silence of treatment records, the lack of consistent credible lay statements regarding the onset of symptoms, and the silence in the record of symptoms which would normally be of record, the Board finds that the preponderance of the evidence is against the claim of service connection. Accordingly, the claim of service connection for a left shoulder condition is denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the weight of competent and credible evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for pes planus The Veteran contends that her flat feet were either caused by, or were aggravated by, physical training (PT) tests while an Army staff judge advocate. The Veteran has not claimed any specific traumatic injury. See Hearing Transcript, p. 3. STRs show that she was diagnosed with moderate flat feet upon entering the Armed Forces. The examiner noted that she denied any symptoms. From June to September 1987 and in November 1989, the Veteran sought treatment for foot and leg pain after running in formation. A clinician noted her report that running at her own pace individually was not a problem. The leg pain was attributed to cramping and deconditioning. The Veteran was provided orthotic inserts. In the November 1989 discharge physical examination, the Veteran reported a history of leg cramps when exercising and use of orthotics, and the examiner noted a continuation of pes planus. See July 2015 STR-Medical, pp. 57, 71, 74. In June 2015, the Veteran submitted a claim of service connection for pes planus condition. A VA examination was provided in November 2015. There, the VA examiner noted that the Veteran's pes planus was first diagnosed in 1986, prior to service. He opined: "The Veteran's Bilateral pes planus, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. VBMS was reviewed for pertinent medical records. STRs and nongovernment documents in VBMS were reviewed. Review of the STRS indicates that this veteran had "moderate pes planus" at the time of her commission examination February 6, 1986. She had pes planus PRIOR to her enlistment. Her moderate pes planus at enlistment would be expected to have some problems with physical training. Although she did see medical providers for foot pain the STRS do not indicate she had aggravation of her pes planus beyond the natural progression. This would be indicated by her pes planus being severe with pronation and possible deformity. However, she did not have progression to severe pes planus or significant pronation as a result of her military duty. At examination today the Veteran has an arch maintained with NON weight-bearing. When she is weight-bearing she does have pes planus but without significant pronation or deformity. It does NOT appear that she had aggravation of her preexisting moderate pes planus during her military duty period. In addition there are no proximate, post military medical records to substantiate a claim that she had aggravation of her pes planus and sought treatment for the condition shortly after her discharge." See November 2015 C&P Exam. The RO denied service connection in November 2015, and the Veteran submitted a notice of disagreement in November 2016. She contended that she did not have any problems with her feet prior to joining the military and that taking PT tests caused her current issues. See November 2016 NOD. An SOC was provided in June 2017 explaining the denial, and in July 2017 the Veteran submitted VA Form 9, in which she requested a hearing before a VLJ. A hearing was provided in August 2021. The Veteran testified about her current condition, with her feet being sore and cramping every day. She reiterated her contention that he did not have any problems with her feet before joining the Army. See August 2021 Hearing Transcript. The claim is now before the Board. While the Veteran is competent to testify what she has experienced, she is not competent to provide a medical opinion whether there is a nexus between her military service and her current condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that a lay claimant is not competent to provide evidence as to complex medical questions). A review of the record only shows a single nexus opinion in the November 2015 VA examination. The VA examiner conducted an in-person examination, reviewed the medical record, considered the Veteran's lay statements, and provided a detailed rationale based upon the record. As such, the Board finds this examination to be of significant probative value. Given that there are no competing positive nexus opinions of record, the Veteran's claim must be denied. In reaching the conclusion to deny the claim, 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 applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for a bilateral hip condition The Veteran contends that a bilateral hip condition was either caused by, or were aggravated by, PT tests as an Army attorney. The Veteran has not claimed any specific injury. See Hearing Transcript, p. 3. A review of her service treatment records (STRs) does not show any complaint, treatment or diagnosis of hip pain. To the contrary, her November 1989 separation Report of Medical Examination was normal, and she denied all questions regarding orthopedic abnormalities except for foot trouble in her separation Report of Medical History. The examiner provided detailed comments on all the Veteran's reports but there is no mention of hip pain or abnormalities. See July 2015 STR-Medical, pp. 71, 74. Post-service, a review of the record does not contain any complaint, treatment or diagnosis for hip pain. The reports of leg cramps on exercise pertain to the leg muscles and not the hips. The only indication in the record of a hip condition comes in the Veteran's lay statements of hip pain. The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C. § 1110. The Veteran has testified that she experienced bilateral hip pain. Pain alone may constitute disability, even without an identifiable underlying pathology. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, for pain alone to be considered a disability, there must be evidence of functional loss and it must affect some aspect of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Saunders, 886 F.3d at 1367-68. The Board has reviewed the medical evidence of record and has not found any probative evidence of such functional loss. While the Veteran believes she has a current diagnosis of a hip condition, she is not competent to provide a diagnosis in this case. The diagnosis of a hip disability in this case is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Given that the probative evidence of record does not support the finding that the Veteran has a current bilateral hip condition, the claim of service connection must be denied. In reaching the conclusion to deny the claim, 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 applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for a back condition The Veteran contends that a back condition was either caused by, or were aggravated by, PT tests as an Army attorney. The Veteran has not reported any specific traumatic injury. See Hearing Transcript, p. 3. STRs do not show any complaint, treatment or diagnosis of back pain. To the contrary, her November 1989 separation Report of Medical Examination was normal, and she stated that she did not have any recurrent back pain in her separation Report of Medical History. See July 2015 STR-Medical, pp. 71, 74. Therefore, the reports of back pain in service warrant low credible weight. As the bilateral foot disability is not service-connected, award of service connection for the back on a secondary basis is not warranted. The Veteran's back condition was first noted in March 2016, approximately 16 years after service. See February 2021 Medical Treatment Record Non Government Facility, p. 50. In June 2015, the Veteran submitted a claim of service connection for a back condition. Since then, she has testified as to her belief that her back condition was caused due to PT tests while serving in the Army, and specifically due to running on asphalt. See November 2016 NOD, see also August 2021 Hearing Transcript. However, STRs show no complaints of back pain in service, and that the Veteran denied any back conditions in her separation Report of Medical History. While the Veteran has not been afforded a VA examination in relation to this service connection claim, VA's duty to provide the Veteran with an examination has not been triggered. Here, there is only generalized and conclusory statements regarding an association between running while in military service, and a condition that was diagnosed 16 years after service, rendering an association with service that the Veteran is not competent to render. Given that the record lacks any competent and probative evidence indicating any connection between exercise during military service and her current condition, no examination or medical opinion is required. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Given the silence in the service treatment records, the lack of consistent credible statements regarding the onset of symptoms in service, within a year of separation, and the lack of any indication in the medical record of a connection between service and her current condition, the Board finds that the weight of competent and credible evidence is against the service connection claim for a back condition. as the weight of competent and credible evidence is against the claim, the benefit of doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, Associate 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.