Citation Nr: 21012914 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-25 112 DATE: March 5, 2021 ORDER 1. Entitlement to service connection for a left hip disability is denied. 2. Entitlement to service connection for a right hip disability is denied. 3. Entitlement to service connection for a left shoulder disability is denied. 4. Entitlement to service connection for a left knee disability is denied. 5. Entitlement to service connection for a right knee disability is denied. REMANDED 6. Entitlement to service connection for residuals of a stroke is remanded. 7. Entitlement to service connection for residuals of heart surgery, to include as secondary to stroke, is remanded. 8. Entitlement to service connection for left leg radiculopathy, claimed as a left toe disability, is remanded. 9. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current left hip disability during the appeal period or proximate thereto, to include symptoms that caused functional impairment that affects earning capacity. 2. The preponderance of the evidence is against a finding that the Veteran has a current right hip disability during the appeal period or proximate thereto, to include symptoms that caused functional impairment that affects earning capacity. 3. The preponderance of the evidence is against a finding that the Veteran has a current left shoulder disability during the appeal period or proximate thereto, to include symptoms that caused functional impairment that affects earning capacity. 4. The preponderance of the evidence is against a finding that the Veteran has a current left knee disability during the appeal period or proximate thereto, to include symptoms that caused functional impairment that affects earning capacity. 5. The preponderance of the evidence is against a finding that the Veteran has a current right knee disability during the appeal period or proximate thereto, to include symptoms that caused functional impairment that affects earning capacity. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2005 to December 2005, May 2006 to May 2007, and May 2009 to June 2010, with additional reserve service. In January 2020, the Veteran provided testimony in a virtual Board hearing before undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (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. 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. & 2. Entitlement to service connection for a (1) left hip disability and a (2) right hip disability. The Veteran contends that service connection for left and right hip disabilities are warranted because they are a result of service. Specifically, during the January 2021 Board hearing, the Veteran’s representative clarified that there was not one traumatic event but instead claimed the disabilities as the result of “the active duty tempo” and the different activities performed in service. This included carrying/wearing equipment that weighed an estimated 50 to 100 pounds, walking, running, and getting in and out of vehicles. The Veteran has also proffered buddy statements from fellow veterans in March 2014, which attested to these activities. The Board finds the Veteran’s report of activities in service to be credible. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran has either a current right or left hip disability during the appeal period. Therefore, service connection is not warranted for the claimed hip disabilities. The Board finds the Veteran to be competent and credible in reporting observable symptomatology. However, lay assertions do not constitute a competent clinical diagnosis of a left or right hip disability. See 38 C.F.R. § 3.159(a)(1). The Veteran’s lay assertions cannot constitute competent medical evidence in support of a current diagnosis because he has not demonstrated the requisite medical training or expertise. The Veteran does not proffer any medical evidence establishing a current diagnosis of a left or right hip disability during or in close proximity to the appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board is mindful of the holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the U.S. Court of Appeals for the Federal Circuit explained that where pain alone results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. The Veteran does not contend that that he has experienced functional impairment affecting his earning capacity related to either the left and/or right hip, and the evidence of record does not show that the Veteran has had such functional impairment. The Veteran testified that he that stopped working in August 2012 due to the residuals of a stroke but returned to work in August 2016 and was currently working. See January 2021 Board hearing transcript. The Veteran’s representative indicated that the Veteran was not seeking treatment for either the left or right hip and that the medical record was complete for these issues. Id. The preponderance of the evidence currently in the file is against a finding of a current left and/or right hip disabilities, to include symptoms that cause functional impairment of earning capacity. In the absence of a showing of functional impairment of earning capacity involving the hips or a current right hip and/or left hip disability, service connection is not warranted. As the preponderance of the evidence is against the claim of service connection for a left hip disability and a right hip disability, the benefit-of-the-doubt doctrine is not for application, and the claims are denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 3. Entitlement to service connection for a left shoulder disability The Veteran contends that service connection for a left shoulder disability is warranted because it is a result of service. Specifically, during the January 2021 Board hearing, the Veteran’s representative clarified that there was not one traumatic event but instead claimed the disability as the result of “the active duty tempo” and the different activities performed in service. This included carrying/wearing equipment that weighed an estimated 50 to 100 pounds, walking, running, and getting in and out of vehicles. The Veteran has also proffered buddy statements from fellow veterans in March 2014, which attested to these activities. The Board finds the Veteran’s report of activities in service to be credible. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran has a current left shoulder disability during the appeal period. Therefore, service connection is not warranted. The Board finds the Veteran to be competent and credible in reporting observable symptomatology. However, lay assertions do not constitute a competent clinical diagnosis of a left or right hip disability. See 38 C.F.R. § 3.159(a)(1). The Veteran’s lay assertions cannot constitute competent medical evidence in support of a current diagnosis because he has not demonstrated the requisite medical training or expertise. The Veteran does not proffer any medical evidence establishing a current diagnosis of a left shoulder disability during or in close proximity to the appeal period. McClain, 21 Vet. App. 319; Romanowsky, 26 Vet. App. 289. The Board is mindful of the holding in Saunders, 886 F.3d 1356. The Veteran does not contend that that he had functional impairment affecting his earning capacity related to the left shoulder, and the evidence of record does not show that the Veteran has experienced such functional impairment. The Veteran testified that he stopped working in August 2012 due to the residuals of a stroke but returned to work in August 2016 and was currently working. See January 2021 Board hearing transcript. The Veteran’s representative indicated that the Veteran was not seeking treatment for the left shoulder and that the medical record was complete for this issue. Id. The preponderance of the evidence currently in the file is against a finding of a current left shoulder disability, to include symptoms that cause functional impairment of earning capacity. In the absence of a showing of functional impairment of earning capacity involving the left shoulder or a current left shoulder disability, service connection cannot be established. As the preponderance of the evidence is against the claim of service connection for a left shoulder disability, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 4. & 5. Entitlement to service connection for a (4) left knee disability and a (5) right knee disability. The Veteran contends that service connection for left and right knee disabilities are warranted because they are a result of service. Specifically, during the January 2021 Board hearing, the Veteran’s representative clarified that there was not one traumatic event but instead claimed the disabilities as the result of “the active duty tempo” and the different activities performed in service. This included carrying/wearing equipment that weighed an estimated 50 to 100 pounds, walking, running, and getting in and out of vehicles. The Veteran has also proffered buddy statements from fellow veterans in March 2014, which attested to these activities. The Board finds the Veteran’s report of activities in service to be credible. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran has either a current right or left knee disability during the appeal period. Therefore, service connection is not warranted for the claimed knee disabilities. The Board finds the Veteran to be competent and credible in reporting observable symptomatology. However, lay assertions do not constitute a competent clinical diagnosis of a left or right knee disability. See 38 C.F.R. § 3.159(a)(1). The Veteran’s lay assertions cannot constitute competent medical evidence in support of a current diagnosis because he has not demonstrated the requisite medical training or expertise. The Veteran does not proffer any medical evidence establishing a current diagnosis of a left or right knee disability during or in close proximity to the appeal period. McClain, 21 Vet. App. 319; Romanowsky, 26 Vet. App. 289. The Board is mindful of Saunders, 886 F.3d 1356. The Veteran does not contend that that he had functional impairment affecting his earning capacity related to either the left or right knee and the evidence of record does not show that the Veteran had such functional impairment. The Veteran testified that he that stopped working in August 2012 due to the residuals of a stroke but returned to work in August 2016 and was currently still working. See January 2021 Board hearing transcript. The Veteran’s representative indicated that the Veteran was not seeking treatment for either the left or right knee and that the medical record was complete for these issues. Id. The preponderance of the evidence currently in the file is against a finding of a current left and/or right knee disabilities, to include symptoms that cause functional impairment of earning capacity. In the absence of a showing of functional impairment of earning capacity involving the knees or a current left and/or right knee disability, service connection cannot be established. As the preponderance of the evidence is against the claim of service connection for a left knee disability and a right knee disability, the benefit-of-the-doubt doctrine is not for application, and the claims are denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.   REASONS FOR REMAND 6. Entitlement to service connection for residuals of a stroke is remanded. The Veteran mainly contends that service connection for residuals of a stroke is warranted because it is caused by or related to service, specifically a snake bite. During the January 2021 Board hearing, the Veteran’s representative indicated that they originally told the Regional Office that the Veteran was bitten by a snake and spent two to three days inpatient at Camp Pendleton in approximately August to October 2005. However, the Veteran and his representative now believe that it was likely October 2005 to December 2005. He reported that the Veteran was doing basic and military occupational specialty (MOS) training at Camp Pendleton, clearing brush on a yard detail, when he was bitten by a snake. The Veteran’s brother testified that he remembered the snake bite have happened after the Veteran’s birthday, which was in September. A February 2017 Request for Information (VA 21-3101) indicates that the records for a snake bite from August 1, 2005, to October 31, 2005, at Camp Pendleton were requested, however, “yielded negative results.” The Veteran’s representative also indicated that he was unable to locate any medical [records] pertaining to the Veteran’s snake bite in March 2017 correspondence. A subsequent attempt to obtain records service treatment records, particularly from Camp Pendleton Medical Center, should be made as the Veteran has provided additional information and a different date range since the last attempt. 7. Entitlement to service connection for residuals of heart surgery, to include as secondary to stroke, is remanded. The Veteran also contends that his heart disability may be caused or aggravated by his stroke. As such, a determination with respect to the claim for service connection for residuals of a stroke may have an impact upon consideration of the issue involving residuals of heart surgery, and the Board finds that these issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. As such, Board consideration of the merits of the Veteran’s service connection claim for residuals of heart surgery is deferred pending adjudication of the Veteran’s service connection claim for residuals of a stroke. 8. Entitlement to service connection for left leg radiculopathy, claimed as a left toe disability, is remanded. During the January 2021 Board hearing, the Veteran’s representative requested that VA consider the Veteran’s numbness in the left toe claim as a claim for left leg radiculopathy, as the Veteran is service connected for a lumbar spine (back) disability and right leg radiculopathy associated with the lumbar spine. During a December 2016 VA examination for the lumbar spine, the examiner found that the Veteran did not have clinical findings of radiculopathy in the left lower extremity (but had found evidence of radiculopathy in the right lower extremity). The Veteran indicated that he was willing to report for a VA examination during the January 2021 Board hearing. As the Veteran is competent to report feeling numbness in the left lower extremity, the Board finds that a remand is warranted to afford the Veteran a VA examination to determine whether the Veteran has left lower extremity radiculopathy associated with his service-connected lumbar spine disability. 9. Entitlement to a TDIU rating is remanded. A determination with respect to the claims for entitlement to service connection for residuals of a stroke, residuals of heart surgery, and left leg radiculopathy may have an impact upon consideration of the issue of entitlement to TDIU on appeal; the Board finds that these issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. As such, Board consideration of the merits of the Veteran’s TDIU claim is deferred pending adjudication of the Veteran’s service connection claims for residuals of a stroke, residuals of heart surgery, and left leg radiculopathy. The matters are REMANDED for the following action: 1. Obtain any outstanding service treatment records from the appropriate records repository and associate all available records with the claims file, to specifically include records related to a snakebite from Camp Pendleton Medical Center between November 1, 2005 and December 31, 2005. (A prior request was made for such records from August 1, 2005 to October 31, 2005, which yielded negative results. See VBMS entry with document type, “VA 21-3101 Request for Information,” receipt date 02/27/2017.) If the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination to assist in determining the nature and etiology of his claimed left lower extremity radiculopathy, claimed as numbness in the left toe, to determine the nature, extent, and etiology of the claimed disability. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. 3. After all available evidence has been associated with the record, review the evidence and determine if further development is warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cheng, 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.