Citation Nr: A21020619 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 191121-49283 DATE: December 29, 2021 ORDER Entitlement to service connection for a right index finger disability is denied. Entitlement to service connection for a left index finger disability is denied. Entitlement to service connection for a right elbow disability is denied. Entitlement to service connection for a left elbow disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a right ankle disability is denied. REMANDED Entitlement to service connection for a left foot disability is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had bilateral index finger, bilateral elbow, right knee, or right ankle disabilities at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a right index finger disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for establishing service connection for a left index finger disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for establishing service connection for a right elbow disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for establishing service connection for a left elbow disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for establishing service connection for a right knee disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for establishing service connection for a right ankle disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1977 to August 1990. This matter is on appeal to the Board of Veterans' Appeals (Board) from a November 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that reconsidered several claims for service connection that were previously denied in an unappealed May 2017 rating decision. In a November 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran timely appealed the portion of the rating decision pertaining to the issue above and requested a hearing before the Board and an opportunity to submit evidence at the hearing and within 90 days following the hearing. 38 C.F.R. § 20.202. The Board notes that the hearing was afforded in August 2021 (a transcript of which is of record) and no additional evidence has been submitted during the allowable time period. Service Connection Generally, to establish service connection, a claimant 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service 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 attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As an initial matter, the record reflects favorable findings by the RO that the Veteran has qualifying events or injuries for the purposes of all of his service connection claims, with the Veteran complaining of painful joints, a painful or "trick" shoulder or elbow, and a "trick" or locked knee in January 1979. See November 2019 Rating Decision; January 1979 Report of Medical History. His service treatment records (STRs) also show complaints of left elbow pain in September 1985, lacerations of both index fingers, indulging an incident where he jammed his right finger in a car door in December 1985, right ankle pain in January 1981, and knee pain in February 1980 and March 1984. However, the medical evidence, to include the Veteran's medical treatment records and several VA examinations afforded in October 2019, is negative for any current elbow, index finger, ankle, or knee disability for service connection purposes at any time during the pendency of the claim or recent to the filing of the claims. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran reported pain to the undersigned during his Board hearing, he denied such to the VA examiner and no pain was found upon physical examination that resulted in any compensable level of functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018) (finding pain resulting in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability); Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 398 (2020) (finding that the holding in Saunders is not limited to pain alone, but rather, the definition of "disability" in 38 U.S.C. § 1110 (and by implication 38 U.S.C. § 1131) and includes any condition that results in functional impairment of earning capacity). Range of motion was noted to be normal in the Veteran's knees, elbows, ankles, and fingers. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1131. While the Veteran's STRs may note in-service injuries and treatment, in the absence of proof of a current diagnosis of the claimed disability, service connection for that disability cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection for bilateral elbow, bilateral index finger, right ankle, and right knee disabilities, and the claims must be denied. The Board has considered the Veteran's statements that he has disabilities that are related to his military service. As the Veteran is not shown to have medical education or experience, for these matters he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., musculoskeletal pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the findings of trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND While the Board regrets further delay, the Veteran's foot disability claim must be remanded to correct a pre-decisional duty to assist error. The Veteran is currently diagnosed with bilateral hallux valgus. See October 2019 VA foot conditions examination. His STRs note several instances of foot pain, including a report of a needle-like feeling on the bottom of both feet in February 1987. The examiner, however, noted only that the Veteran's hallux valgus was an incidental finding upon examination, and did not provide an etiological opinion as to the relationship between the Veteran's hallux valgus and his multiple in-service foot complaints. As such, an addendum opinion must be obtained on remand. The matter is therefore REMANDED for the following action: Send the claims file to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current hallux valgus disability onset during service or is otherwise related to an in-service injury, event, or disease, to include his multiple in-service reports of bilateral foot pain. The need for an additional examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.