Citation Nr: 21021533 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-65 084 DATE: April 13, 2021 ORDER Entitlement to service connection for a left wrist disability is denied. REMANDED Entitlement to service connection for a left leg disability is remanded. Entitlement to an initial compensable rating for hallux valgus, left foot, is remanded. Entitlement to an initial compensable rating for hallux valgus, right foot, is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a left wrist disability at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for a left wrist disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps Reserves and had periods of active duty, including from May 2008 to August 2008, June 2011 to July 2012, and March 2013 to September 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in October 2019. A transcript is of record. 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for a left wrist disability The Veteran seeks service connection for a left wrist disability. He asserts that he injured his left wrist in service. The Veteran testified: Whenever we’d do pushups, when I bend my wrists, I notice it’s like a sharp pain on the outside of my wrist. On active duty for PT, I do remember getting kicked with a soccer ball that kind of aggravated it. And after that, any time we would do pushups, I could always feel it hurting on the outside. The service treatment records note include a June 2012 separation examination that noted normal upper extremities examination. In August 2013 the Veteran was seen with complaint of tingling of both hands. He reported having sprained his left wrist two years earlier. Examination showed normal left wrist. X-rays of the hands were normal. On an August 2013 report of medical history completed by the Veteran, he noted that he had sprained his left wrist in 2010 when a soccer ball was kicked into it; he described ongoing recurring pain throughout the years. A VA examination was conducted in December 2015. The Veteran reported a history of an injury in 2012 where he was hit by a soccer ball in the left wrist. He reported that he now had left wrist pain when he attempts to do pushups or lift weights. Examination of the left wrist showed full ranges of motion. There was no additional loss of motion after three repetitions. There was no pain noted on the examination. There was no evidence of pain with weight bearing, no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, and no objective evidence of crepitus. The examiner noted that there was no functional loss after repetitive use over time. Left wrist strength was normal and there was no muscle atrophy. There was no ankylosis. The examiner stated that the Veteran did not have a current diagnosis associated with his claimed left wrist pain condition. The examiner stated that the claimed left wrist condition did not impact the Veteran’s ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.). The examiner stated that the Veteran’s claimed left wrist condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. “After examining this Veteran, obtaining his history, and reviewing his STRs, it is my professional opinion that his current wrist.. ailment [is] vague and nonspecific and in no way related to his described and reported military service obligations. Given the lack of specific findings on physical exam, I suspect secondary gain issues are in play.” The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a left wrist condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board is mindful of Saunders v. Wilkie, in which 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. See Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). While the Veteran has credibly reported left wrist pain, there is no current evidence (i.e. since the claim was filed) showing the pain has been so severe as to cause functional impairment that affects his earning capacity. Of note, the December 2015 VA examination report shows that the Veteran had normal range of motion and muscle strength despite his wrist pain. The Veteran reported that his pain affected him when doing pushups or lifting weights; he did not describe functional impairment affecting his earning capacity. This does not demonstrate occupational functioning is impaired by his hand pain. The Veteran has not otherwise asserted, nor provided objective evidence, that his left wrist pain results in functional impairment that affects his earning capacity. The VA examiner noted that the claimed left wrist condition did not impact the Veteran’s ability to perform any type of occupational task. Based on the foregoing, the Board does not find that the Veteran’s left wrist pain rises to the level of a disability under Saunders. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes he has a current diagnosis of a left wrist condition, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is no doubt to be resolved; service connection for a left wrist disability is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a left leg disability The Veteran seeks service connection for a left leg disability. Specifically, he asserts that he injured his left thigh in service. The Veteran testified that he believed he injured his left quadriceps on a hike in service and that he continued to have pain and what he described as a “divot” in the thigh muscle. The service treatment records include a June 2012 separation examination that noted a tender mass in the left quadriceps muscle. A VA examination was conducted in December 2015. The examiner noted a diagnosis of left quadriceps tear. The Veteran reported that he now had easy fatiguability in the left quad. He reported that “after a day of work it feels really tight and fatigued.” Examination of the left hip showed full ranges of motion. There was no additional loss of motion after three repetitions. There was localized tenderness of the mid quadriceps. There was no evidence of pain with weight bearing. The examiner noted that there was no functional loss after repetitive use over time. Left hip muscle strength was normal and there was no muscle atrophy. There was no ankylosis. The examiner noted weakened movement. The examiner noted that both the left and right quadriceps measured 50 cm at their largest point. The examiner stated that the claimed left thigh condition did not impact the Veteran’s ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.). The examiner stated that the Veteran’s claimed left hip condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. “After examining this Veteran, obtaining his history, and reviewing his STRs, it is my professional opinion that his current left hip ailment [is] vague and nonspecific and in no way related to his described and reported military service obligations. Given the lack of specific findings on physical exam, I suspect secondary gain issues are in play.” The Board finds the examiner’s opinion internally inconsistent and inadequate. The examiner described the “ailment” as vague and nonspecific, however his examination report noted the Veteran’s complaint of tightness and fatigue of the quadriceps, and the examination itself showed localized tenderness of the mid quadriceps as well as weakened movement. Further, the nexus opinion focused on a “left hip” condition rather than the left thigh/quadriceps condition that was described in service and was the subject of the Veteran’s current complaint as well as the objective findings noted on the examination. Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Given the objective findings noted on examination, the Board finds that another examination is necessary, with an opinion as to whether the current findings are related to the documented inservice tender mass of the left quadriceps muscle. 2. Entitlement to an initial compensable rating for hallux valgus, left foot is remanded. 3. Entitlement to an initial compensable rating for hallux valgus, right foot is remanded. The Veteran and his representative have specifically indicated that the Veteran’s service-connected left and right foot hallux valgus disabilities have worsened since the (only) VA examination in October 2015. See October 2019 Hearing testimony and Bench Brief. VA’s duty to assist requires affording the Veteran a new VA examination to accurately assess the current level of impairment when there is evidence that the disability may have worsened. Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). The claims are thus remanded for an examination to assess the current severity of the Veteran’s service-connected left and right hallux valgus disabilities. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of his current left leg/thigh disability. The entire record must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current left thigh/quadriceps disability had onset during service or is otherwise related to service, to include the tender mass in the left quadriceps noted in June 2012. The examination report must include a complete rationale for all opinions expressed. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his hallux valgus of the left and right foot. The claims file must be reviewed by the examiner. All appropriate diagnostic testing must be conducted. a)The examiner should indicate whether the Veteran’s right and left foot hallux valgus is equivalent to amputation of the great toe; or, if he has undergone an operation which resulted in resection of the metatarsal head of either great toe. The feet should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing. These findings are required by VA regulations as interpreted by courts. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary or is not medically appropriate in this case, he or she should clearly explain why that is so. b) The examiner must also comment on the functional impairment caused by the Veteran’s left and right foot disability. Specifically, the examiner should indicate whether there would be additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should still estimate any additional functional loss during flare-ups or on repeated use, based on the Veteran’s description of his flares’ severity, frequency, duration, and/or functional loss manifestations. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups, without resorting to speculation, the examiner must provide an explanation for why this is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. A fully articulated medical rationale for all opinions expressed must be set forth in the examination report. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.