Citation Nr: 21011656 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-66 682 DATE: March 2, 2021 ORDER Service connection for a right ankle disability is denied. Service connection for a left ankle disability is denied. Service connection for a right finger disability is denied. Service connection for elbow and knee scars is denied. REMANDED The issue of service connection for a right shoulder disability, to include as due to a service-connected left shoulder disability, is remanded. The issue of service connection for a right elbow disability, as secondary to a service-connected left shoulder disability, is remanded. The issue of service connection for a left knee disability is remanded. The issue of service connection for a cervical spine disability is remanded. The issue of service connection for obstructive sleep apnea is remanded. The issue of service connection for bilateral hearing loss is remanded. The issue of service connection for tinnitus is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has had right ankle, left ankle, or right finger disabilities or functional impairment of earning capacity from right ankle, left ankle, or right finger pain at any time during or proximate to the pendency of the appeal. 2. There is no evidence that the Veteran has or had elbow or knee scars or functional impairment of earning capacity from elbow or knee scars at any time during or proximate to the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right finger disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for elbow and knee scars are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2004 to August 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran presented testimony before the Board. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after 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). 1. Service connection for a right ankle disability. 2. Service connection for a left ankle disability. 3. Service connection for a right finger disability. 4. Service connection for elbow and knee scars. In May 2015, the Veteran submitted claims of service connection for right ankle, left ankle, and right finger disabilities. He also submitted a claim of service connection for “scar formation (elbow and knees).” He has not provided any assertions or theory regarding his claims, other than indicating that his right ankle, left ankle, and right finger disabilities are a result of an in-service fall. See Board hearing transcript (January 2021). Other than submitting his claims of service connection in May 2015, he has not provided any statements or testimony regarding his elbow and knee scars. The evidence of record does not show that right ankle, left ankle, and right finger disabilities were diagnosed during the appeal period. See VA treatment records (from October 2015 to July 2020). Moreover, VA treatment records do not show that the Veteran had complaints of pain or other symptoms regarding his right ankle, left ankle, or right finger throughout the appeal period. Id. Additionally, although the Veteran is competent to indicate that he has scars on his elbow and knees, he has not provided any statements, testimony, or evidence that he has scars on his elbow or knees. The Veteran’s VA treatment records are absent any notations of elbow and knee scars. Here, the evidence shows that the Veteran has not had a right ankle disability, left ankle disability, right finger disability, or elbow and knee scars at any time during or proximate to the pendency of the appeal. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Thus, a necessary element for establishing any claim for service connection is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). During an October 2015 VA treatment visit, the Veteran reported to the treatment provider that it was his first time in the VA system. Notably, during the January 2021 Board hearing, the Veteran denied any treatment for his right and left ankle. He did not provide any other testimony regarding his ankles, right finger, or elbow and knee scars. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit 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.” Id. at 1367-69. In this case, the evidence does not show that the Veteran’s right ankle, left ankle, right finger, or elbow and knee scars has reached the level of a functional impairment of earning capacity. To this extent, the Veteran has not provided any statements or testimony concerning his right ankle, left ankle, right finger, elbow and knee scars and his treatment records are absent treatment or complaints of right ankle, left ankle, right finger, or elbow and knee scars pain or symptoms. The issue of whether the Veteran has a current disability is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Veteran is not competent to provide a diagnosis regarding his right ankle, left ankle, and right finger. The preponderance of the evidence is against the claims of service connection for a right ankle disability, left ankle disability, right finger disability, and elbow and knee scars. The benefit-of-the-doubt doctrine is not for application, and the claims of service connection for a right ankle disability, left ankle disability, right finger disability, and elbow and knee scars are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The issue of service connection for a right shoulder disability, to include as secondary to a left shoulder disability, is remanded. The Veteran claims that his right shoulder disability is secondary to his service-connected left shoulder disability. See Veteran’s statement (October 2017); Board hearing transcript (January 2021). The Veteran’s service treatment records (STRs) show that he sustained a left shoulder sprain in July 2004. The Veteran’s VA treatment records show that he reported shoulder pain. See, e.g., VA treatment record (October 2015). The Veteran has not been afforded a VA examination nor has an opinion been obtained to determine the nature and etiology of his right shoulder disability. As the evidence indicated that the Veteran has current right shoulder pain that may be associated with his military service or a service-connected disability, a remand is warranted to schedule him for a VA examination. 2. The issue of service connection for a right elbow disability, as secondary to a service-connected left shoulder disability, is remanded. The Veteran claims that his right elbow disability is secondary to his service-connected left shoulder disability. See Veteran’s statement (October 2017). The Veteran’s VA treatment records show right elbow pain. See VA treatment record (December 2015). The Veteran has not been afforded a VA examination nor has an opinion been obtained to determine whether he has a current right elbow disability that is secondary to his service-connected left shoulder disability. Therefore, a remand is warranted to schedule him for a VA examination. 3. The issue of service connection for a left knee disability is remanded. 4. The issue of service connection for a cervical spine disability is remanded. The Veteran claims that his left knee and cervical spine disabilities are due to his military service and that he has had pain since an in-service injury. See, e.g., Board hearing transcript (January 2021). Specifically, the Veteran relates his left knee and cervical spine disabilities to an in-service fall where he injured his left shoulder during physical training. The Veteran’s STRs show that he sustained a left shoulder sprain in July 2004. The Veteran’s VA treatment records demonstrate that he had consistently related his left knee and cervical spine disabilities to an in-service fall where he injured his left shoulder. See, e.g., VA treatment record (October 2015) (where he reported that he had left knee pain since his 2004 military injury). VA treatment records show current diagnoses of left knee and cervical spine degenerative joint disease. The Veteran has not been afforded a VA examination nor has an opinion been obtained to determine whether his left knee and cervical spine disabilities had their onset in service or are related to his military service. As the evidence indicated that the Veteran has current left knee and cervical spine disabilities that may be associated with his military service, a remand is warranted to obtain a VA medical opinion. 5. The issue of service connection for obstructive sleep apnea is remanded. The Veteran claims that his sleep apnea began in service and that it has continued since, as he has had symptoms of sleep apnea since service, such as difficulty sleeping. See Veteran’s VA Form 9 (December 2017); Board hearing transcript (January 2021). He attributes his sleep apnea to his in-service anxiety that he reports has continued since service. See Board hearing transcript (January 2021). A November 2016 VA sleep study shows a diagnosis of obstructive sleep apnea. The Veteran has not been afforded a VA examination nor has an opinion been obtained to determine whether his sleep apnea had its onset in service or is due to his military service. Therefore, a remand is warranted to obtain a VA opinion. 6. The issue of service connection for bilateral hearing loss is remanded. 7. The issue of service connection for tinnitus is remanded. The Veteran claims that he has bilateral hearing loss and tinnitus due to in-service noise exposure. See Board hearing transcript (January 2021). Specifically, he reports that his in-service noise exposure was the result of his military occupational specialty (MOS) as a heavy construction operator, similar to an engineer according to his testimony at the January 2021 Board hearing. The Veteran’s DD Form 214 shows that “none” was listed under primary specialty. The Veteran’s VA treatment records show that he requested to seek treatment from an audiologist, as he reported that he had hearing loss. See VA treatment report (October 2015). The Veteran has not been afforded a VA examination nor has an opinion been obtained to determine whether he has bilateral hearing loss for VA purposes and whether his bilateral hearing loss and tinnitus had their onset in service or are due to his in-service noise exposure. Therefore, a remand is warranted to schedule him for a VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination regarding his claims of service connection for right shoulder and right elbow disabilities. The examiner should identify any, even if resolved, right shoulder and right elbow disabilities since the date of the Veteran’s claim in May 2015. Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right shoulder and right elbow disabilities, had its/their onset in service or is/are otherwise related to service, to include as due to an in-service left shoulder injury. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected left shoulder disability caused or aggravated his right shoulder and/or right elbow disabilities. The examiner must provide a rationale for each opinion. 2. Refer the claims file to an examiner regarding the Veteran’s claims of service connection for left knee and cervical spine disabilities. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left knee and cervical spine disabilities (diagnosed as degenerative joint disease), had its/their onset in service or is/are otherwise related to service, to include as due to an in-service fall. The examiner must provide a rationale for the opinion. 3. Refer the claims file to an examiner regarding the Veteran’s claim of service connection for obstructive sleep apnea. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea had its onset in service or is otherwise related to service. The examiner must provide a rationale for the opinion. 4. Schedule the Veteran for an audiological examination. The examiner should conduct audiometric and speech discrimination (Maryland CNC) testing of the right and left ear. Then, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss and tinnitus had its/their onset during service or is/are otherwise the related to his military service, to include as due to in-service noise exposure. The examiner must provide a rationale for the opinion. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.