Citation Nr: 21008190 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-08 400 DATE: February 11, 2021 ORDER Entitlement to service connection of a right leg disorder is denied. REMANDED Entitlement to service connection of a bilateral shoulder disorder is remanded. Entitlement to service connection of a back disorder is remanded. Entitlement to service connection of a bilateral hip disorder is remanded. Entitlement to service connection of bilateral hearing loss is remanded. Entitlement to service connection of a heart disorder is remanded. Entitlement to service connection of erectile dysfunction is remanded. Entitlement to service connection of a headache disorder is remanded. FINDING OF FACT The Veteran does not have a right leg disorder. CONCLUSION OF LAW The criteria for service connection for a right leg disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to April 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, these issues previously came before the Board in February 2019, at which time the Board denied the claims of service connection of a bilateral shoulder condition, a bilateral hip condition, bilateral hearing loss, a low back condition and a heart condition. It also remanded the issues of service connection of a right leg condition, erectile dysfunction and headaches for further development. Prior to that decision, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Following the Board’s decision and remand in February 2019, the Veteran appealed the denials contained therein to the United States Court of Appeals for Veterans Claims (Court) and in September 2020, the Court granted a Joint Motion for Remand (JMR) reversing the Board’s prior denials in the February 2019 decision, and remanding those issues to the Board for further development, as agreed upon by that parties in the JMR. Those issues are now returned to the Board for further development as outlined in the JMR. Also returned to the Board are the three issues which were previously remanded in February 2019. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection of a right leg disorder The Veteran seeks service connection of a right leg disorder. The Board finds that the claim should be denied. As was noted in the 2019 remand, the Veteran’s medical records between 2010 and 2014 reflected symptoms of a right leg disorder. Those records primarily document pain in either the posterior right leg or the right knee, variously described as residual pain and numbness, and arthralgia. As such, the Board remanded the appeal so that an examination could be conducted which assessed the Veteran’s right leg. In December 2019, the Veteran was afforded a VA examination in connection with his claim. The examiner conducted an in-person examination of the Veteran, to include a physical examination, and a review of the Veteran’s relevant medical history and records. The Veteran provided a history of his right leg symptoms, noting that he was in a helicopter crash in 1966 and lacerated his right lower extremity. Since that time, his condition had improved and he did not have any present symptoms associated with the knee and leg. He did not presently partake in any treatment of his lower leg symptoms. On examination his range of motion was completely normal on all planes of motion. He did not show evidence of tenderness or pain on palpation, evidence of pain with weight bearing, or objective evidence of crepitus. He was able to perform repetitive use testing with no loss of functional use. He denied flare-ups of symptoms in his right leg. He showed no additional factors contributing to disability in the right leg. Strength was full and normal. Neurological testing was normal. There was no muscle atrophy. Joint stability testing was normal. He used a walker and a left knee brace, however, that was attributed to a stroke, and not to any right leg condition. After careful consideration, the examiner concluded that the Veteran does not have a currently diagnosed condition associated with his claimed symptoms. The Board finds this evidence probative of the Veteran’s present right knee condition, or lack thereof. It was provided by a medical specialist following a thorough examination of the Veteran, and in contemplation of his complete medical record. To the extent that the examiner did note scars, the result of a laceration, those scars have already been granted service connection and are not for consideration in this matter. In light of the evidence of record, the Board must find that the Veteran’s claim fails the primary criterion of service connection, namely, a presently diagnosed disability. In coming to this conclusion, the Board does acknowledge the Veteran’s own competent reports of pain in the right leg throughout the period on appeal. To the extent that the United States Court of Appeals for the Federal Circuit (Federal Court) has held that pain alone can constitute a disability where functional impact is found, See Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018), the Board finds that such a threshold has not been met in this matter. Although the Veteran has reported right leg pain, there is no indication that it has caused functional loss or any other impairment in earning capacity. Indeed, the December 2019 examination found complete and full range of motion on all planes, with no other deficiency. There was no indication that the pain reported by the Veteran has impacted his ability to work. As such, the Board concludes that there is no disability at this time in the right leg. The Board also acknowledges the Veteran’s own firmly held beliefs that he has a right leg disability. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability, for example, reporting observable symptoms such as pain. However, the diagnosis and determination of etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make diagnosis of a right leg condition, especially in light of the VA examiner’s conclusions to the contrary. See id. In sum, the Board finds that the claim of service connection of a right leg disorder should be denied as failing the first criterion of service connection. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection of a bilateral shoulder disorder is remanded. 2. Entitlement to service connection of a back disorder is remanded. 3. Entitlement to service connection of a bilateral hip disorder is remanded. 4. Entitlement to service connection of bilateral hearing loss is remanded. 5. Entitlement to service connection of a heart disorder is remanded. As noted above, the Court has reversed the Board’s prior decisions with regard to the issues addressed herein, and remanded them for further development as agreed upon by the parties in the JMR. Initially, the Board recognizes that the JMR specified that VA ensure certain records are associated with the claims file. Although the RO had requested that all service treatment records be obtained, a deficiency existed because a specific request was not placed for specific records pertaining to the Veteran’s helicopter crash, to include treatment records from the 45th Surgical Hospital in Tay Ninh, Vietnam, and the 36th Evacuation Hospital in Vung Tau, Vietnam. As such, the JMR instructs the Board to remand this claim so that such records may be obtained, if possible. The JMR also found that scanned images from VA’s VistA System were also not properly associated with the claims file. These records should also be obtained and associated with the claims file prior to any additional development outlined below. With regard to the Veteran’s low back condition and bilateral hip conditions, the JMR found that the medical opinions rendered in 2015 were inadequate as they failed to consider the Veteran’s own reports of continuity of pain since active service. As such, on remand, addendum opinions should be obtained which specifically address the Veteran’s reports of low back and hip symptoms, to include pain, since active service. With regard to the Veteran’s hearing loss condition, the JMR found that an April 2011 examination and opinion was inadequate as the examiner based the opinion on delayed onset hearing loss, while failing to discuss the Veteran’s own competent statements regarding hearing loss symptoms which began during active service. As such, on remand, an addendum opinion should be obtained which addressed the Veteran’s own statements regarding onset and continuity of symptomatology. Regarding the Veteran’s right and left shoulder disabilities, the Veteran has yet to be afforded a VA examination concerning the etiology of his right shoulder disability, despite the JMR finding that the evidence of record has triggered VA’s duty to provide such development. Therefore, per the agreement between the parties in the JMR, an examination should be conducted which assesses the Veteran’s right shoulder condition. To the extent that the Veteran has claimed his left shoulder condition is secondary to his right shoulder condition, the JMR has also ordered that the examination include consideration of the etiology of the left shoulder. To the extent that the JMR found that the Board had not provided adequate reasons and bases for its conclusions in the prior decision, the Board will address that deficiency after the above development has been completed. 6. Entitlement to service connection of erectile dysfunction is remanded. As erectile dysfunction is well known to be a possible complication of a heart disorder, the Board will remand that issue pending the remand and readjudication of the heart condition claim. 7. Entitlement to service connection of a headache disorder is remanded. The Board previously remanded this appeal so that a VA examination could be conducted which fully assessed this claim. In December 2019, the Veteran was afforded a VA examination in which he asserted that he first experienced headaches in 1966, following a helicopter crash (in which he sustained a TBI), and had experienced such headaches to the present. The examiner then rendered an opinion that the present headaches were less likely than not due to the in-service incident. In support of that opinion, the examiner stated that there are no findings of headaches in either the Veteran’s service treatment records or separation examination. Unfortunately, the Board finds this opinion to be inadequate. As was noted in the JMR pertaining to the low back and hip conditions, an examiner’s failure to consider the Veteran’s competent reports of symptoms starting in service, with continuity to the present, renders the examination inadequate. In this matter, despite acknowledging the Veteran’s reports of onset following the crash with continuity to the present, the examiner failed to discuss this evidence in rendering the opinion, and merely cited to a lack of documentation in the service treatment records. Therefore, on remand, an addendum opinion should be obtained which considers the Veteran’s competent reports of headaches with onset in 1966, continuing to the present. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Submit as many requests as necessary to obtain the Veteran’s in-service clinical hospital records from the 45th Surgical Hospital in Tay Ninh, Vietnam, and the 36th Evacuation Hospital in Vung Tau, Vietnam. If the records are obtained, associate them with the claims file. If all possible attempts to obtain those records are exhausted, then notify the Veteran and his representative that the records cannot be obtained, and associate such a finding with the claims file. 3. Obtain any outstanding scanned images from VA’s VistA System, particularly those pertaining to a November 29, 2010, VA Agent Orange Registry examination and echocardiogram; a November 14, 2014, VA Scan Holter Monitor record reflecting results from October through November 2014; and a January 10, 2014, Scan Audiological Evaluation. Make as many requests as necessary to obtain this specific records 4. Obtain an addendum opinion regarding the etiology of any low back disorder, and whether it is related to any in-service incident, to include the Veteran’s helicopter crash. The examiner is instructed to specifically address the Veteran’s reports of pain starting during service, and continuing to the present. In this regard, the examiner is reminded that a lay person is competent to report observable symptoms such as pain. 5. Obtain an addendum opinion regarding the etiology of any bilateral hip disorder, and whether it is related to any in-service incident, to include the Veteran’s helicopter crash. The examiner is instructed to specifically address the Veteran’s reports of pain starting during service, and continuing to the present. In this regard, the examiner is reminded that a lay person is competent to report observable symptoms such as pain. 6. Obtain an addendum opinion regarding the etiology of any bilateral hearing loss, and whether it is related to any in-service noise exposure. The examiner is instructed to specifically address the Veteran’s reports of hearing loss starting during service, and continuing to the present. In this regard, the examiner is reminded that a lay person is competent to report observable symptoms such as difficulty hearing or tinnitus. 7. Schedule the Veteran for a VA examination for his bilateral shoulder disorder. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s right shoulder disorder at least as likely as not related to service, including the Veteran’s helicopter crash? In providing the requested opinion, the examiner should provide a rationale which discusses the competent lay evidence of right-sided residual weakness after the crash in question, as well as any lay statements regarding continuity of symptoms since service. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? If the examiner finds that the Veteran’s right shoulder disability was likely related to an incident of active service, he or she should then state whether the left shoulder disorder is at least as likely as not proximately due to the right shoulder disorder; or whether the left shoulder disorder at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the right shoulder disorder. 8. Obtain an addendum opinion regarding the etiology of the Veteran’s headache disorder, and whether it is related to any in-service incident, to include the Veteran’s helicopter crash that resulted in a TBI. The examiner is instructed to specifically address the Veteran’s reports of headaches starting after the TBI incident, and continuing to the present. In this regard, the examiner is reminded that a lay person is competent to report observable symptoms such as headaches.  9. Undertake any additional development which is warranted by the evidence associated with the claims file following this remand. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, 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.