Citation Nr: 21025537 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-24 934A DATE: April 28, 2021 ORDER Service connection for a left arm disorder is denied. REMANDED A disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). A disability rating in excess of 10 percent for post traumatic arthritis of the lumbar spine. Service connection for a right knee disorder. Service connection for a left knee disorder. Service connection for a right foot disorder. FINDINGS OF FACT 1. The Veteran served on active duty from March 1976 to August 1979 and from March 1987 to December 1995. 2. A current left arm disorder, diagnosed as degenerative joint disease of the elbow and epicondylitis, was not shown in service, was not shown to a compensable degree within one year of service, and symptoms were not shown to be continuous since service; a current left arm disorder is not causally or etiologically related to service. CONCLUSION OF LAW A chronic left arm disorder was not incurred in service and may not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The “duty to assist” contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to decide the claim. 38 C.F.R. § 3.159 (2020). VA has done everything reasonably possible to assist the Veteran with respect to the claim for benefits in accordance with 38 U.S.C.A. § 5103A (2012) and 38 C.F.R. § 3.159(c) (2020). Some relevant service treatment and other medical records have been associated with the claims file. In cases where VA is unable to obtain records, or if after continued efforts to obtain Federal records VA concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA is to provide the claimant oral or written notice of that fact. 38 C.F.R. § 3.159(e) (2020). Notice must contain the identity of the records VA was unable to obtain; an explanation of the efforts VA made to obtain the records; a description of any further action VA will take regarding the claim including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and notice that the claimant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(1)(i)-(iv) (2020). In cases where service records are missing or presumed destroyed, in addition to the Board’s heightened duty to explain its findings and conclusions and to consider the benefit-of-the-doubt rule, the Board also has a heightened duty to assist a veteran with the development of evidence in support of the claim. See Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). Here, the duties to notify and to assist have been met. The Veteran was informed of lost service treatment records in May 2014. The same letter explained what was done to request these records and the Veteran was given the opportunity to submit records. The Board finds that the provisions of 38 C.F.R. § 3.159(e) have been met. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. § 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. The Veteran has asserted that she has a left arm disorder which is a result of her active duty. Specifically, she reported an injury in the 1980s during physical training and states that the injury has persisted since that time. Initially, VA treatment records show complaints for left arm pain in 2011, and a diagnosis of atypical left arm pain with likely components of epicondylitis and carpal tunnel syndrome with possible degenerative joint disease (DJD) of the left elbow in April 2011. Current diagnoses are shown, and the first element of service connection is met. Next, the second element an in-service incurrence is not met, as her service treatment records (STRs) are silent for any complaints of, treatment for, or a diagnosis of a chronic left arm disorder in service. The medical evidence does not support direct service connection. As DJD is shown, presumptive service connection will likewise be considered. However, there was no diagnosis of degenerative changes or DJD in service, no chronic left arm disorder manifested to a compensable degree in the year following separation from service, and the medical evidence fails to show consistent complaints of left arm pain following her separation from service until the eventual diagnoses many years later. As such, the medical evidence does not support service connection on a presumptive basis. The Board acknowledges the Veteran’s assertions that her left arm disorder is due to service and that she has not been given a VA examination. (Although the Informal Hearing Presentation references an examination in 2014, no arm examination was given in 2014.) The low threshold for getting an examination is not met in this case because there is only the unsupported lay contention of a medical nexus. General conclusory statements do not rise to an indication of a link. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). The Veteran has not shown that there is an indication of a link. Therefore, remand for a VA examination is not required. The Board has considered the Veteran’s lay statements that her disorder was caused by service. She is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. However, she is not competent to offer an opinion as to the etiology of her current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the available service records and clinical evidence obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the other statements in the file. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND With specific regard to the Veteran’s claims for an increased rating for PTSD and a lumbar spine disorder, she was scheduled for VA examinations to assess the status of those disabilities in July 2017. She failed to appear for the examinations, and her representative suggested that she was not properly informed of their dates and times in a July 2017 statement. At that time, she requested to be re-scheduled for these examinations, but none were scheduled. Importantly, her PTSD and lumbar spine disabilities have not been evaluated since September 2014, and the most recent treatment records available are from 2017. The Veteran reiterated a desire to appear for examinations in an October 2020 brief, and suggested that her symptomatology has worsened since the last evaluation. She should be afforded one more opportunity to report for these examinations, and updated treatment records should be obtained to properly illustrate the current status of her disabilities. Similarly, and in regard to her claims of service connection for bilateral knee disorders, she was scheduled for a VA examination to assess the current status and etiologies of her disorders in July 2017 and likewise failed to appear. Her most updated treatment records show diagnoses for degenerative joint disease (DJD) in both knees in 2010. Additionally, her STRs reflect physical therapy for knee pain during service in 1988. With regard to her right foot disorder, her STRs reflect treatment for foot pain and cysts during service in 1994. Her current treatment records reflect diagnoses for chronic right foot pain, degenerative changes, and metatarsalgia. She was scheduled for a VA examination in September 2014 where the examiner notably did not review her record and instead found no current right foot diagnosis. However, the Board finds this examination inadequate for these purposes as her VA treatment records reflect the above diagnoses. Etiological opinions should be obtained and, under the same reasoning expressed above, she should be given an opportunity to be re-scheduled for her VA examinations. The matters are REMANDED for the following actions: 1. Identify and obtain any outstanding, pertinent, VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for VA examinations to assess the current status of her service-connected PTSD and lumbar spine disabilities. The entire claims file should be made available to, and reviewed by the examiner. Any indicated studies should be performed. 3. Schedule the Veteran for VA examinations to assess the current status and etiology of her bilateral knee and right foot disorders. The entire claims file should be made available to, and reviewed by, the examiner. Any indicated studies should be performed. The examiner is then asked to provide any relevant bilateral knee and right foot disorders, and provide an opinion as to whether each is at least as likely as not (50 percent probability or greater) that they are related to any incident of her active duty service. If the examiner finds that there is no current right foot diagnosis, they are asked to specifically address the findings of foot pain, metatarsalgia and degenerative changes noted in the Veteran’s treatment records. A thorough rationale is requested for any opinion rendered. Emily Tamlyn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yacoub, 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.