Citation Nr: 21021419 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-14 650A DATE: April 12, 2021 ORDER Entitlement to service connection for a disability manifested by joint pain is denied. REMAND Entitlement to service connection for degenerative disc disease of the lumbar spine, to include as secondary to service-connected bilateral pes planus, is remanded. FINDINGS OF FACT A diagnosis of a joint pain disability has not been rendered during the period on appeal or proximate thereto. CONCLUSIONS OF LAW The criteria for service connection for joint disability have not been 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 March 1984 until January 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 Department of Veterans Affairs (VA) regional office (RO) rating decision. These claims were previously before the Board in June 2018, June 2020, and August 2020 at which times, the claims were remanded for additional development, namely, to obtain VA examinations. The prior directives have been substantially complied with and the appeal is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Preliminarily, the Board notes that in the May 2015 VA Form 9, the Veteran expressly declined to appeal to the Board his claims for any specific knee, ankle, or left wrist disabilities. For this reason, the Board lacks jurisdiction over the Veteran’s currently diagnosed bilateral knee osteoarthritis, bilateral ankle degenerative joint disease, or left wrist arthritis. The Veteran’s claims regarding his bilateral knee, ankle, or left wrist disabilities are subject to the June 2013 final rating decision. 38 U.S.C. § 7105; 38 C.F.R. § 3.160(d). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (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) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Entitlement to service connection for joint pain. Preliminarily, a review of the Veteran’s current post-service treatment records show that he is currently diagnosed with bilateral knee osteoarthritis, bilateral ankle degenerative joint disease, and left wrist arthritis. However, for the reasons stated above, the Board lacks jurisdiction to discuss these disabilities as the Veteran failed to perfect an appeal to the Board for them. These disabilities are thus subject to a final rating decision. 38 U.S.C. § 7105; 38 C.F.R. § 3.160(d). Further, while the Veteran additionally diagnosed with lumbar spine degenerative disc disease, that diagnosis is the subject of its own claim for service connection which is being remanded herein. Aside from these knee, ankle, and wrist disabilities (over which the Board lacks jurisdiction), and the already separately claimed low back disability, the Veteran is not diagnosed with any other joint disability. The Veteran participated in an October 2020 VA examination. Therein, the VA examiner opined that the Veteran was not diagnosed with fibromyalgia as there were no findings, signs, or symptoms to support a diagnosis. Based upon this evidence, the Board finds that the preponderance of the evidence is against the claim as Shedden element one is not met. There is simply no evidence of a current diagnosis of a joint pain disability. Pertinently, the Board finds that the only competent medical evidence relevant to the Veteran’s joint pain is the October 2020 VA examination which found that the Veteran is not diagnosed with fibromyalgia. See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists).  The Board has additionally considered the Veteran’s belief that he suffers from a joint pain disability, to include fibromyalgia, however, he does not have the medical knowledge or training to provide competent evidence of a joint disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the assertions of a current disability such as fibromyalgia are not competent, they are entitled to no probative weight.  The Board acknowledges the Veteran’s reports of generalized joint pain. While pain alone may constitute a disability for the purposes of service connection, there must be a showing that the pain reaches the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367–68 (Fed. Cir. 2018); Wait v. Wilkie, No. 18-4349, 2020 U.S. App. Vet. Claims LEXIS 1609, *16–*19 (Vet. App. Aug. 26, 2020). In this regard, a review of the record fails to reflect that the Veteran has other joint pain not attributable to his low back, bilateral knee, bilateral ankle, and left wrist disabilities, which could potentially be linked to service. The Board notes that the October 2020 VA examiner found that the Veteran’s knees were painful and weak. Additionally, the post-service medical records also show that the Veteran’s bilateral ankles and left wrist are painful. However, these functional impairments are all been attributed to specific disabilities—bilateral knee osteoarthritis, bilateral ankle degenerative joint disease, and left wrist arthritis—over which the Board lacks jurisdiction because the Veteran expressly declined to appeal these issues in his substantive appeal. 38 U.S.C. § 7105; 38 C.F.R. § 3.160(d). The preponderance of the evidence is against finding that the Veteran has a current diagnosis of a joint pain disability during the appeal period or close in time to the appeal period to which the Board has jurisdiction. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). As a diagnosis of a joint pain disability or functional impairment to which the Board has jurisdiction has not been shown, the preponderance of the evidence is against the service connection claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  REASONS FOR REMAND Entitlement to service connection for lumbar degenerative disc disease. November 1998 treatment records show that the Veteran was diagnosed with degenerative changes of the thoracic spine which “may be related to the patient’s very large body habitus.” May 2013 post-service treatment records show that the Veteran weight 352 pounds and is diagnosed as morbidly obese. The Veteran’s January 2012 VA examination for his bilateral pes planus confirms that is has a “moderate negative effect on usual occupation and daily activities due to pain and decreased mobility.” In the most recent December 2020 addendum opinion, the VA examiner stated that “there is no established nexus of pes planus to degenerative disc disease.” Most importantly to the remand directives here, the December 2020 addendum opinion explained that the Veteran’s degenerative disc disease is more likely to be related to the Veteran’s obesity, which has been documented as early as a February 1990 service treatment record. The Board finds that this opinion raises the question of whether the Veteran’s pes planus resulted in his obesity, which in turn caused his lumbar spine degenerative disc disease. Garner v. Tran, No. 18-5865, 2021 U.S. App. Vet. Claims LEXIS 81 (Jan. 26, 2021). As such, the Board must remand for another addendum opinion as to what extent, if any, the Veteran’s service-connected pes planus caused or aggravated his obesity, and whether his obesity in turn was the proximate cause of his lumbar degenerative disc disease. See VA Gen. Coun. Prec. 1-2017 (Jan. 6, 2017); Walsh v. Wilkie, 32 Vet. App. 300 (2020). The matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate them with the claims file. 2. Obtain an addendum VA medical opinion to determine the nature and etiology of the Veteran’s degenerative disc disease of the lumbar spine. If an additional VA examination (or telehealth interview or similar action, if an in-person examination is not feasible) is deemed necessary, then one should be scheduled.  The examiner is asked to provide separate, well-reasoned responses to the following: a) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s obesity was caused or aggravated by the service-connected pes planus? b) If so, is it at least as likely as not (a fifty percent probability or greater) that the obesity, or the aggravation thereof, was a substantial factor in causing the Veteran’s lumbar degenerative disc disease? c) If so, is it at least as likely as not (a fifty percent probability or greater) that BUT FOR the obesity, or the aggravation of the obesity, the Veteran would not have been diagnosed with lumbar degenerative disc disease? In answering questions (a) through (c), attention is invited to (1) November 1998 treatment records noting degenerative changes of the spine due to large body habitus; (2) May 2013 treatment records noting the Veteran was morbidly obese; (3) the January 2012 VA examination confirming that his pes planus has a “moderate negative effect on usual occupation and daily activities due to pain and decreased mobility”; and, (4) the December 2020 addendum opinion linking the Veteran’s degenerative disc disease to his morbid obesity. A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.